California School Employees Association-Chapter 244 (Guitierrez) (PERB 1606E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EL VINA G. GUTIERREZ,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 244,
Respondent.
Case No. LA-CO-1152-E
PERB Decision No. 	1606
February 	26, 	2004
Appearances: Elvina G. Gutierrez, on her own behalf; California School Employees
Association by Maureen C. Whalen, Staff Attorney, for California School Employees
Association and its Chapter 244.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Elvina G. Gutierrez (Gutierrez) of a Board agent's dismissal
(attached) of the unfair practice charge. The charge alleged that the California School
Employees Association and its Chapter 244 (CSEA) breached its duty of fair representation.
Gutierrez alleged that this conduct constituted a violation of the Educational Employment
Relations Act (EERA). 1
After review of the entire record, including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letter, the Board hereby adopts the Board
agent's dismissal as a decision of the Board itself.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

DISCUSSION
Gutierrez disputes the dismissal regarding the dates she raised the scheduling and
slander allegations. She claims that she raised the slander issue with CSEA Representative
Denise Williams (Williams) on April
7,
2003, as stated in the amended charge, not
October 16, 2002, and Williams in tum refused to process a grievance. 	Gutierrez thus argues
that the allegation regarding slander is not untimely. However, she did not provide an
alternative date for her first contact with CSEA regarding the scheduling issue.
In its response to the appeal, CSEA asserts that the appeal fails to meet the specificity
requirements in compliance with PERB regulations.2 CSEA further argues that all the
allegations are untimely. According to CSEA, Gutierrez is trying to choose dates for events
that she prefers. She has provided the Board agent with conflicting dates for the slander and
scheduling allegations, which the Board can consider during an investigation. CSEA
concludes that the appeal should be summarily dismissed.
Gutierrez expresses her frustration that Williams has refused to represent her under any
circumstances. She states that Williams typically turns complaints over to the chapter's
executive board, who, being school district employees, are ignorant
of
the duties
of
job
stewards. 	She also said that CSEA will let timelines run as an excuse not to process a
grievance that has no resolution. Gutierrez does not identify other specific aspects
of
the
dismissal that she finds objectionable nor point to specific facts that support a prirna facie case.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

The majority
of
the appeal fails to meet the specificity requirements under PERB
Regulation 32635(a)(l).3 Gutierrez however does dispute the specific date ascribed to her
complaint about Colton Joint Unified School District (District), Special Education Director,
Diane D 'Agostino' s allegedly slanderous statement. In her appeal, Gutierrez continues to
maintain that she raised the issue with CSEA on April 7, 2003, despite the finding in the
dismissal that Gutierrez informed the Board agent on October 31, 2003 that she originally
raised the slander issue in a meeting with CSEA Representative, Tom Allessandro on
October 16, 2002. In determining whether the charging party has stated a prima facie case, the
Board must credit the charging party's allegation
of
facts over those
of
other parties.
(San Juan Unified School District (1977) EERB Decision No.
124;
Golden Plains Unified
School District (2002) PERB Decision No. 1489.) Therefore, we must conclude that Gutierrez
first spoke to CSEA regarding the slander allegation on April
7,
2003.
Gutierrez also argues that the Board agent erred in timing her contact with CSEA
regarding the change in her work schedule. However, she failed to provide an alternative date
for which she first contacted CSEA.
3PERB Regulation 32635(a)(l) provides:
(a) Within 20 days
of
the date
of
service
of
a dismissal, the
charging party may appeal the dismissal to the Board itself. The
original appeal and five copies shall be filed in writing with the
Board itself in the headquarters office, and shall be signed by the
charging party or its agent. Service and proof
of
service
of
the
appeal on the respondent pursuant to Section 32140 are required.
The Appeal shall:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
4Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
3

EERA 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 statute oflimitations is an affirmative defense
which has been raised by CSEA in this case. (Long Beach Community College District (2003)
PERB Decision No. 1564.) Therefore, Gutierrez now bears the burden of demonstrating that
the charge is timely filed. 	(cf. Tehachapi Unified School District (1993) PERB Decision
No. 1024; State of California (Department ofinsurance) (1997) PERB Decision No. 1197-S.)
Gutierrez did not meet that burden regarding either the work schedule.
Since the Board must accept Gutierrez' version of the dates, we find the slander
allegation to be timely filed. 	However, this allegation lacks any specificity regarding dates of
occurrence, circumstances, the nature of the alleged slander, or the substance of CSEA' s
refusal to grieve the issue. 	(PERB Reg. 32615(a)(5)5.) The Board therefore dismisses this
allegation for failure to state a prima facie case.
The other allegations regarding the reduction in pay, which was related to the change in
Gutierrez' work schedule, and the longevity pay also do not state a prima facie case for breach
5PERB Regulation 32615(a) provides, in pertinent part:
(a) A charge may be filed alleging that an unfair practice or
practices have been committed. 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;
4

of the duty of fair representation. Gutierrez has alleged that CSEA denied her 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 Unified School District Teachers Association, CTA/NEA
(King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982)
PERB Decision No. 258 (United Teachers of Los Angeles (Collins).) In order to state a prima
facie violation of this section of EERA, Gutierrez must show that the CSEA'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 employee's grievance if the chances for success are minimal.
(Dismissal letter, p. 5.)
In order to state a prima facie case of arbitrary conduct violating the duty of fair
representation, Gutierrez:
... 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. (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; emphasis added.)
In this case, the evidence shows that CSEA Representative, Yolanda Guerrero
(Guerrero) investigated the pay and longevity pay issues. From her investigation, Guerrero
concluded that the District paid Gutierrez the appropriate amounts. 	Gutierrez provided no
evidence to show that CSEA's refusal to process her complaint further was without rational
5

basis or devoid
of
honest judgment. The Board agent's warning and dismissal letters fully
address the issues raised by Gutierrez. Therefore, the Board adopts the Board agent's
dismissal as a decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1152-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neimajoined in this Decision.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027
October 31, 2003
Re: 	Elvina G. Gutierrez v. California School Employees Association & its Chapter 244
Unfair Practice Charge No. LA-CO-1152-E
DISMISSAL LETTER
Dear Ms. Gutierrez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 5, 2003. Elvina G. Gutierrez alleges that the California
School Employees Association & its Chapter 244 violated the Educational Employment
Relations Act (EERA)' by violating its duty of fair representation.
I indicated to you in my attached letter dated October 14, 2003, 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 October 24, 2003, the charge would be
dismissed. On October 21, 2003, I spoke with you regarding this charge and agreed to extend
the deadline to file an amended charge. On October 28, 2003, I received a first amended
charge. On October 29, 2003, I returned your telephone call and confirmed receipt of the first
amended charge. On October 31, 2003, I spoke with you regarding the charge.
In the original charge Gutierrez alleges CSEA violated its duty of fair representation with
regard to the following issues: (a) a teacher making sexual innuendos to her; (b) the District
changing her schedule; (c) the District lowering her pay; (d) the District failing to pay her
longevity pay; and (e) the District's Director slandering her name. The warning letter
indicated the issues of lowering her pay and not paying her longevity pay were timely filed, but
that the other allegations were untimely filed. Each of these allegations is addressed below.
Sexual Innuendo
The charge does not provide additional information regarding the sexual innuendo allegation
and it is therefore dismissed for the reasons stated in the warning letter.
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.
STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor	C
·--------------"""'.
PUBLIC EMPLOYMENT.RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-25 l 4
Telephone: (510) 622-1023
Fax: (510) 622-1027
October 31, 2003
Elvina G. Gutierrez
2250 West Chestnut Street, Space #23
San Bernardino, CA 92410
Re: 	Elvina G. Gutierrez v. California School Employees Association & its Chapter 244
Unfair Practice Charge No. LA-CO-1152-E
DISMISSAL LETTER
Dear Ms. Gutierrez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 5, 2003. Elvina
G.
Gutierrez alleges that the Ca_lifornia
School Employees Association & its Chapter 244 violated the Educational Employment
Relations Act (EERA)1 by violating its duty
of
fair representation.
I indicated to you in my attached letter dated October 14, 2003, 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 October 24, 2003, the charge would be
dismissed. 	On October 21, 2003, I spoke with you regarding this charge and agreed to extend
the deadline to file an amended charge. On October 28, 2003, I received a first amended
charge. On October 29, 2003, I returned your telephone call and confirmed receipt
of
the first
amended charge. On October 31, 2003, I spoke with you regarding the charge.
In the original charge Gutierrez alleges CSEA violated its duty
of
fair representation with
regard to the following issues: (a) a teacher making sexual innuendos to her; (b) the District
changing her schedule; (c) the District lowering her pay; (d) the District failing to pay her
longevity pay; and (e) the District's Director slandering her name. The warning letter
indicated the issues
of
lowering her pay and not paying her longevity pay were timely filed, but
that the other allegations were untimely filed. 	Each
of
these allegations is addressed below.
Sexual Innuendo
The charge does not provide additional information regarding the sexual innuendo allegation
and it is therefore dismissed for the reasons stated in the warning letter.
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-1152-E
October 31, 2003
Page 2
Schedule Change
The District changed Gutierrez' schedule in June 2001. The District did not properly process
the paperwork for that change. The original charge alleges that in 2002 Labor Relations
Representative Denise Williams told Gutierrez that CSEA would not represent her regarding
the schedule change. The first amended charge indicates Gutierrez told Williams about the
loss of wages due to a schedule change on or about April 7, 2003. The first amended charge,
however, did not indicate whether this was the first time Gutierrez spoke with Williams
regarding this issue. On October 31, 2003, I spoke with Gutierrez, who indicated that this was
not the first time she spoke with Williams about the schedule change and acknowledged that
Williams had originally dealt with this issue in 2002.
Thus, as stated in the warning letter, the allegation regarding CSEA's failure to pursue a
grievance on the schedule change is untimely filed and outside PERB's jurisdiction. Williams
notified Gutierrez that CSEA would not represent her regarding the schedule change in 2002.
As Gutierrez filed this charge on September 3, 2003, conduct occurring in 2002 is outside the
six-month statute of limitations period.
Decrease in Pay and Failure to Pay Longevity Pay
In March 2003, Gutierrez learned that the District paid her less in 2002 than in 2001. The
change in Gutierrez' pay was related to the change in Gutierrez' schedule. The warning letter
indicated that CSEA had investigated these pay issues and concluded that the District paid
Gutierrez appropriately.
The first amended charge alleges the District's payroll office told Gutierrez her wages were
reduced because of the schedule change. In 2001, Gutierrez received $20542 in wages, while
in 2002 she received $15963. The first amended charge also acknowledges that CSEA First
Vice President Yolanda Guerrero investigated the claim and confirmed the underlying
schedule change paperwork was not properly filed. 	Gutierrez alleges that Guerrero indicated
that it looked like she had been demoted. The first amended charge does not provide facts
demonstrating CSEA acted in an arbitrary, discriminatory or bad faith manner. As stated in the
warning letter, it appears Guerrero investigated the pay issues and determined that the District
properly paid Gutierrez. Guerrero's disagreement with that position does not demonstrate
CSEA violated its duty of fair representation.
Slander
The warning letter indicated that CSEA addressed D' Agostino's slanderous comments about
Gutierrez in 2002, and that this allegation was therefore untimely filed. 	The first amended
charge alleges that on or about April 7, 2003, Gutierrez spoke with Williams regarding the
slanderous statements. The first amended charge, however, did not indicate whether this was
the first time Gutierrez spoke with Williams regarding this issue. On October 31, 2003, I
spoke with Gutierrez, who indicated that this was not the first time she spoke with Williams
•

LA-CO-1152-E
October 31, 2003
Page 3
( 	C
about the slanderous statements and acknowledged that she had met with CSEA representative
Tom Allesandro regarding this issue on or about October 16, 2002. Thus, this allegation is
untimely filed and outside
of
PERB
's
jurisdiction.
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.)
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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CO-1152-E
October 31, 2003
Page 4
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.)
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
Tammy Sandsel
Regional Attorney
Attachment
cc: Maureen Whelan
LA-CO-1152-E
October 31, 2003
Page 4
(
or deposited in the first-class mail, postage paid and properly addressed. A document filed
byfacsimile 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 bein 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
ByT~
Regional Attorney
Attachment
cc: Maureen Whelan

STATE OF CALIFORNIA 	Y DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway. Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027
October 14, 2003
Elvina G. Gutierrez
Re: 	Elvina G. Gutierrez v. California School Employees Association & its Chapter 244
Unfair Practice Charge No. LA-CO-1152-E
WARNING LETTER
Dear Ms. Gutierrez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 5, 2003. Elvina G. Gutierrez alleges that the California
School Employees Association & its Chapter 244 violated the Educational Employment
Relations Act (EERA)' by violating its duty of fair representation. My investigation revealed
the following information.
CSEA is the exclusive representative of the classified employees at the Colton Joint Unified
School District. The District employs Elvina Gutierrez in the classified service. Gutierrez
alleges CSEA violated its duty of fair representation with regard to the following issues: (a) a
teacher making sexual innuendos to her; (b) the District changing her schedule; (c) the District
lowering her pay; (d) the District failing to pay her longevity pay; and (e) the District's
Director slandering her name. Each of these allegations is addressed below.
Gutierrez contacted CSEA in June 2001 regarding a teacher who made sexual innuendos to
her. CSEA Labor Relations Representative Denise Williams referred Gutierrez to the
Department of Fair Employment and Housing.
During the year that Gutierrez participated in the DFEH process the District Director changed
Gutierrez' schedule and work year. In 2002, Williams told Gutierrez that CSEA would not
represent her regarding the change in her schedule.
On March 24, 2003, Gutierrez learned that the District paid her approximately $5,000 less in
2002 than in 2001. She also noted that not all of her pay stubs reflected that the District had
paid her longevity pay. In April 2003, Gutierrez contacted CSEA. Gutierrez indicates she was
"given the run around" so she contacted Senior Labor Relations Representative Chuck
Sheppard. Sheppard referred her back to the local chapter. Chief Job Steward Tom
Allessandro contacted Gutierrez and indicated First Vice President Yolanda Guerrero would be
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.
STATE OF
CALI
FORNI
A 	GRA	
G_R_A_Y_D_A_Y_IS..;.,_G_o_ve_r_no_r	
r
_______________
( ·
______
PUBLIC
EMPLOYMENT RELATIONS BOARD
San Francisco Regional Ol'tice
1330 Broadway, Suite I 532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax:
(510) 622-1027
October 14, 2003
Elvina G. Gutierrez
Re: 	Elvina G. Gutierrez v. California School Employees Association & its Chapter 244
Unfair Practice Charge No. LA-CO-1152-E
WARNING LETTER
Dear Ms. Gutierrez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 5, 2003. Elvina G. Gutierrez alleges that the California
School Employees Association & its Chapter 244 violated the Educational Employment
Relations Act (EERA) 1 by violating its duty
of
fair representation. My investigation revealed
the following information.
CSEA is the exclusive representative
of
the classified employees at the Colton Joint Unified
School District. The District employs Elvina Gutierrez in the classified service. Gutierrez
alleges CSEA violated its duty
of
fair representation with regard to the following issues: (a) a
teacher making sexual innuendos to her; (b) the District changing her schedule; (c) the District
lowering her pay; (d) the District failing to pay her longevity pay; and (e) the District's
Director slandering her name. Each
of
these allegations is addressed below.
Gutierrez contacted CSEA in June 2001 regarding a teacher who made sexual innuendos to
her. CSEA Labor Relations Representative Denise Williams referred Gutierrez to the
Department
of
Fair Employment and Housing.
During the year that Gutierrez participated in the DFEH process the District Director changed
Gutierrez' schedule and work year. 	In 2002, Williams told Gutierrez that CSEA would not
represent her regarding the change in her schedule.
On March 24, 2003, Gutierrez learned that the District paid her approximately $5.000 less in
2002 than in 2001. 	She also noted that not all
of
her pay stubs reflected that the District had
paid her longevity pay. 	In April 2003, Gutierrez contacted CSEA. Gutierrez indicates she was
·'given the run around" so she contacted Senior Labor Relations Representative Chuck
Sheppard. 	Sheppard referred her back to the local chapter. 	Chief Job Steward Tom
Allessandro contacted Gutierrez and indicated First Vice President Yolanda Guerrero would be
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.
2250 West Chestnut Street, Space #23
San Bernardino, CA 92410

(
Page 2
handling Gutierrez' pay issue. 	Guerrero requested Gutierrez' permission to review her
personnel file, which Gutierrez granted with the request that she accompany Guerrero during
this process. 	Guerrero reviewed the file without Gutierrez.
LA-CO-1152-E
October 14, 2003
On April 17, 2003, Gutierrez told Labor Relations Representative Denise Williams that she
wanted
to
file a grievance against Director Diane
D'
Agostino for slandering her name.
Guerrero informed Gutierrez that such a grievance would be untimely.
	CSEA's
Tom
Alessandro had met with Gutierrez, and Gutierrez' supervisor, Janet Nichols, regarding
D'
Agostino's comments in 2002.
On May
5, 2003, Gutierrez left Guerrero a message. 	Guerrero returned the call on
May 7, 2003 and they agreed to meet on May 13, 2003. On May 13, 2003, Guerrero cancelled
the meeting because she was sick. Gutierrez requested another representative, but Guerrero
indicated it was her assignment. 	Guerrero contacted Gutierrez on May 27, 2003, and they met
the next day. 	Guerrero reviewed documents with Gutierrez and indicated she would get back
to her in a week.
On June 27, 2003, Gutierrez contacted Guerrero as she had not heard back from her. 	Guerrero
indicated her doctor had placed her on an off-work order. Gutierrez requested another
representative. 	Guerrero indicated that they were not sure that the District owed her money.
After the June 27, 2003 conversation, Guerrero informed Gutierrez that she had checked into it
and the District had paid the proper longevity pay. 	Guerrero also informed Gutierrez that
although D 'Agostino did not follow the proper procedure for changing her schedule in 2001,
the District had paid her the proper amounts for 2001 and 2002.
The above-stated information fails to state a prima facie violation for the reasons that follow.
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months priorto 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.
l 024; State
of
California (Department ofinsurance) (1997) PERB Decision No. 1197-S.)
Gutierrez filed this charge on September 3, 2003, by certified mail. 	Therefore, allegations
regarding events occurring on or before March 3, 2003 are untimely filed and outside
of
PERB'sjurisdiction. With regard to the sexual innuendo allegation, CSEA referred Gutierrez
to DFEH in 2001, more than a year before the filing
of
this charge. With regard to the change
in schedule allegations, Williams told Gutierrez that CSEA would not represent her in 2002,
more than six months before the filing
of
this charge. 	The charge also indicates that CSEA
addressed D' Agostino's comments about Gutierrez in 2002. Thus, Gutierrez knew of the
conduct underlying this allegation more than six months prior to the filing
of
this charge.
These allegations must be dismissed as untimely filed.
-

LA-CO-1152-E
October 14, 2003
Page 3
(
The timely filed allegations regarding lower pay and longevity pay are addressed below.
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.]
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.]
The charge fails to present facts demonstrating CSEA acted in arbitrary, discriminatory, or bad
faith manner. 	Guerrero met with Gutierrez, reviewed documents and ultimately told Guerrero
that the District had paid her the appropriate amounts, and that the District had properly paid
her longevity pay. 	Although Gutierrez does not agree with Guerrero's assessment
of
these
issues, the facts demonstrate Guerrero investigated Gutierrez' complaints. 	Although
Guerrero's illnesses effected the duration
of
CSEA's investigation, the charge does not
demonstrate CSEA violated its duty
of
fair representation. Thus, these allegations 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

LA-CO-1152-E
October 14, 2003
Page 4
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 October 23, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney
TLS
LA-CO-1152-E
October 14, 2003
Page 4
(
standard P
ERB
unfair practice charge fonn, clearly labeled First Amended Charge,
contain
all
the facts and allegations you wish to make, and be signed underpenalty
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 October 23, 2003, I shall dismiss your charge.
If
you have any questions, please call
me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney
TLS