California Teachers Association (Radford) (PERB 1763E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHERRY E. RADFORD,
Charging Party,
V.
CALIFORNIA TEACHERS ASSOCIATION,
Respondent.
Case No. LA-CO-1187-E
PERB Decision No. 1763
April.21, 	2005
Appearances: Sherry E. Radford, on her own behalf; John F. Kohn, Attorney, for California
Teachers Association.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
MCKEAG, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Sherry E. Radford (Radford) of a Board agent's dismissal (attached) of
her unfair practice charge. The unfair practice charge alleges that the California Teachers
Association (CTA)1 violated the Educational Employment Relations Act (EERA)2 by its failure
to meet its duty of fair representation.
The Board has reviewed the entire record, including the unfair practice charge, the
warning and dismissal letters, Radford's appeal and CTA's response. The Board finds the
Board agent's dismissal to be free of prejudicial error and adopts it as a decision of the Board
itself.
1
It should be noted that CTA is not the exclusive representative and does not owe a duty
of fair representation to bargaining unit employees. (California Teachers Association,
CTA/NEA (Torres) (2000) PERB Decision No. 1386.) It is presumed that Radford intended to
file her charge against the Sweetwater Education Association/CTA/NEA. For the reasons
discussed in the attached letters, the charge does not demonstrate that the Sweetwater
Education Association breached its duty of fair representation.
2EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. LA-CO-1187-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
2

STATE OF CALIFORNIA 	r:·--==============(=~=';=;"=A=R=N=O=LD=SC=HW=A=R=ZE=_N=E=G=G=ER='=G=ov=er=no=r
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916)327-8384
Fax: (916) 327-6377
February 7, 2005
Sherry E. Radford
2063 Lakeridge Circle, # 103
Chula Vista, CA 91913
Re: 	Sherry E. Radford v. California Teachers Association
Unfair Practice Charge No. LA-CO-1187-E
DISMISSAL LETTER
Dear Ms. Radford:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 20, 2004. Sherry E. Radford alleges that the California
Teachers Association violated the Educational Employment Relations Act (EERA)1 by failing
to provide her with its duty of fair representation.
I indicated to you in my attached letter dated January 21, 2005, 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)n that letter,
you should amend the cha;rge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to January 31, 2005, the charge would be
dismissed.
On January 21, 2005, I received a facsimile from you regarding the Respondent's position
statement. The facsimile did not include a proof of service indicating it had been served on the
Respondent. The facsimile was received after the warning letter had issued. I had not received
either an amended charge or a request for withdrawal in response to the warning letter and
called you on February 2, 2005 to discuss this matter. 	You indicated you wanted to discuss the
matter with other individuals and later returned my call indicating you did not want to
withdraw your charge. 	We also discussed the January 21, 2005, facsimile which had not been
served on CTA. You indicated you would serve CTA, and provide me with aproof of service
indicating as such. 2 ·
The January 21, 2005 facsimile points out that CTA's position statement included the
following errors: (a) the District and CTA did not inform Radford that the purpose of the
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 atwww.perb.ca.gov.
2 To date I have not received the proof of service, but I have attached the facsimile to
this letter.

LA-CO-1187-E
February 7, 2005
Page 2
December 2003 meeting was to administratively transfer her, but only indicated there were
"concerns"; (b) the March 2004 letter from Radford to Salazar was not sexual in nature; (c)
on June 11, 2004, the male Human Resources Director visited Radford's home on a Saturday
morning and proceeded to discuss placing Radford on administrative leave while Radford was
in her bathrobe; (d) Steiner refused to read the emails Radford sent to Salazar during Radford's
June 15, 2004 meeting with Steiner; (e) the CTA Executive Director did not show up during
the June 21, 2004 meeting with the District's investigator; (f) the District cannot produce
numerous inappropriate e-mails and the investigation did not uncover any sexual conduct; (g)
CT A's should not rely on the failure of a previous transfer grievance when deciding whether to
pursue Radford's transfer grievance; (h) Shoemake told Radford that there had to be something
in it for CTA to pursue a grievance on her behalf; (i) CTA had not vigorously opposed her
disciplinary action; (j) CTA never told Radford that the notes she requested were available; (k)
Shoemake did not represent Radford at the October 2ih meeting; (1) despite the District's
conclusions to the contrary, Radford denies she sexually harassed anyone; (m) it is absurd that
CTA does not have an obligation to enforce the Education Code; and (n) CTA did not respond
to Radford's request for information.
As stated in the warning letter, the duty of representation is limited and does not extend to
extra-contractual forums. 	(Service Employees International Union (1997) PERB Decision No.
1219.) Thus, CTA's failure to enforce the Education Code does not demonstrate a duty of fair
representation violation. The warning letter also explained that the charge must demonstrate
CTA acted in an arbitrary, discriminatory or bad faith manner. (See United Teachers of Los
Angeles (Collins) (1982) PERB Decision No. 258.) Taking Radford's facts as true, as required
at this level of the investigation3, neither the charge nor the facsimile demonstrate CTA acted
in an arbitrary, discriminatory or bad faith manner. Thus, the charge is dismissed for the
reasons stated here and in the warning letter.
Right to Appeal
Pursuant to PERB Regulations,4 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. 	(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,
3 Mark West Union School District (1993) PERB Decision No. 1011.
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1187-E
February 7, 2005
Page 3
C
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).)
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
ea~h other party regarding the extension, and shall be accompanied by proofof service of the
request upon each party. 	(Regulation 32132.)

LA-CO-I 187-E
February 7, 2005
Page 4
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time lim_its have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
---~By
TammyS~
Regional Attorney
HrA1A 	Uht
Attachments
cc: John Kohn

STATE OF CALIFORNIA 	{--- 	r-- 	ARNOLD SCHWARZENEGGER, Governor
============- 	~=======================..,,;,,,.==
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95814-4174
Telephone: (916)327-8384
Fax: (916) 327-6377
January 21, 2005
Sherry E. Radford
2063 Lakeridge Circle, # 103
Chula Vista, CA 91913
Re: 	Sherry E. Radford v. California Teachers Association
Unfair Practice Charge No. LA-CO-1187-E
WARNING LETTER
Dear Ms. Radford:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 20, 2004. Sherry E. Radford alleges that the California
Teachers Association violated the Educational Employment Relations Act (EERA)1 by failing
to provide her with its duty of fair representation. My investigation revealed the following
information.
Radford is ~ teacher represented by CTA. In December 2003, the Principal of East Lake High
School, Ysidro Salazar, sought Radford's transfer to another school. Salazar alleged Radford
wrote him e-mails which were sexual in nature. On December 19, 2003, CTA President Alex
Anguiano met with District officials and prevented the transfer by agreeing that
communications from Radford would cease.
In the Spring of 2004, the District alleged that Radford gave an inappropriate letter to Salazar.
The District placed Radford on administrate leave and initiated its sexual harassment
complaint procedure. Radford contacted CTA requesting a referral to an attorney. CTA
complied with Radford's request and she met with Fem Steiner on June 15, 2004. Steiner told
Radford to refrain from contacting Salazar and refused to research Radford's case. Radford
filed a complaint regarding Steiner's snide tone, but did not receive a response from CTA.
Radford contacted Executive Director Lian Shoemake, complained about Steiner and indicated
she was going to retain her own counsel. Shoemake indicated CTA would continue to
represent her upon her request. 	On June 21, 2004, Anguiano accompanied Radford during an
interview with an external investigator regarding Salazar's allegations.
In June 2004, grades were submitted in Radford's name in violation of the Education Code.
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-1187-E
January 21, 2005
Page 2
In July 2004, the District involuntarily transferred Radford. Radford indicates she was highly
qualified for her original assignment and that she is not as qualified for her new assignment.
Radford believes she is thereby vulnerable to future negative action by the District. CTA did
not object to Radford's transfer.
In July 2004, CTA refused to file a grievance on Radford's behalf. Shoemake told Radford
that the grievance would be denied, that arbitration woufd cost $3000, and that there had to be
something in it for CTA to justify such an expenditure. On August 2, 2004, Shoemake
explained to Radford that the collective bargaining agreement only required that involuntary
transfers not be arbitrary or capricious. Shoemake explained that CTA could not make a
credible argument that her transfer was arbitrary or capricious as there were numerous
inappropriate communications from her to Salazar to justify the transfer and that CTA was able
to stop a previous transfer attempt by agreeing such communications would cease, and they did
not. 	Radford acknowledged that she knew she could file a grievance on her own behalf.
However, she did not file one.
On August 16, 2004, Shoemake sent a letter to the Director of Personnel Services protesting
the sexual harassment investigation. On that same day, Anguiano spoke to the Board of
Education protesting the investigation since a close friendship existed between Radford and
Salazar. On August 26, 2004, Anguiano and Shoemake accompanied Radford to a meeting
with District officials regarding the investigation's findings. 	Shoemake argued the report was
flawed and that no discipline should result.
In August 2004, a student's grade was changed without Radford's input in violation of the
Education Code.
In September 2004, Radford requested a copy of CTA's meeting minutes from the
December 19, 2003, meeting from her Site Representative. CTA ignored her request.
On October 27, 2004, Shoemake appealed the investigation's findings. 	On December 8, 2004,
the District upheld the investigation's findings.
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 ofEERA, 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:

LA-CO-1187,.E
January 21; 2005
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, CTAINEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers'
Professional Association (Romero) (1980) PERB Decision
No. 124.]
The duty of representation is limited, and does not extend to extra-contractual forums.
(Service Employees International Uniori (1997) PERB Decision No. 1219.) As such CTA's
duty of fair representation does not extend to enforcement of the Education Code.
Here, CTA negotiated a settlement on Radford's behalf which prevented her involuntary
transfer in 2003. Following that settlement, the Principal raised new allegations against
Radford. CTA granted Radford's request to see an attorney, and provided her with
representation during meetings, and spoke to the Board of Education on her behalf. The
charge does not demonstrate CTA's decision not to file a grievance was arbitrary, but instead
rationally based on the language of its collective bargaining agreement, which only·requires
that the transfer not be arbitrary or capricious. CTA's explanation that the existence of
documents demonstrating Radford had communicated with Salazar and the fact that the parties
had previously addressed this issue in 2003 is a rational basis for refusing to pursue the
grievance. Thus, the charge fails to demonstrate CTA acted in an arbitrary, discriminatory or
bad faith manner.
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 respondent's

LA-CO-1187-E
· January 21, 2005
Page 4
(
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 January 31, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
~Tammy Samsel
Regional Attorney
TLS