Fremont Unified District Teachers Association (Kaiser) (PERB 1572E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DIANE
M.
KAISER,
Charging Party,
V.
FREMONT UNIFIED DISTRICT TEACHERS
ASSOCIATION,
Respondent.
Case No. SF-CO-606-E
PERB Decision No.
	15
72
December
	24,
	2003
Appearances: Diane M. Kaiser, on her own behalf; Priscilla Winslow, Attorney, for Fremont
Unified District Teachers Association.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Diane M. Kaiser (Kaiser)
of
a Board agent's dismissal (attached)
of
her
unfair practice charge. 	The charge alleged that the Fremont Unified District Teachers
Association (FUDT A) violated the Educational Employment Relations Act (EERA) 1
by
breaching its duty
of
fair representation.
After reviewing the entire record in this matter, including the original and amended
unfair practice charge, the warning and dismissal letters, Kaiser's appeal, and FUDTA's
response, the Board sustains the dismissal as discussed below.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

BACKGROUND
According to the charge, Kaiser is employed by the Fremont Unified School District
(District)
as
a teacher. During the 2000-2001 school year, Kaiser was assigned to teach third
grade. The District's curriculum included the Packard Grant/Open Court Language Arts
Program (Packard Program). Teachers in certain grades were required to utilize this reading
program.
Disputes arose during the school year between Kaiser and the principal
of
the school,
Ed Tucker (Tucker), over Kaiser's implementation
of
the Packard Program in her classroom.
As a result
of
the disputes, Kaiser alleges that Tucker took numerous actions against her. 	For
example, Kaiser alleges that Tucker "fraudulently authored Teacher Comments on [her] first
evaluation."
To aid her in her dispute with Tucker, Kaiser requested assistance from FUDTA. 	On
behalf
of
Kaiser, FUD TA requested and received information concerning the Packard Program.
Also, the president ofFUDTA, Greg Bonaccorsi (Bonaccorsi), attended a meeting between
Kaiser and Tucker described as a "Level I Complaint Meeting." As a result
of
that meeting,
Kaiser alleges that Tucker agreed to refrain from the conduct described above. However,
Kaiser alleges that, approximately two weeks later, Tucker engaged in the same conduct.
Kaiser asserts that she repeatedly notified Bonaccorsi
of
Tucker's conduct, but that Bonaccorsi
failed to correct the violations made by Tucker.
On April 2, 2001, Kaiser was informed that next school year she was being reassigned
from third grade to teach fourth/fifth grade purportedly, because she had not been providing
her students with the skills they need for reading. Kaiser informed both FUDTA and Tucker
she did not agree with the assignment to teach fourth/fifth grade. On April 23, 2001, FUDTA
2

filed a grievance challenging the reassignment. Kaiser and Bonaccorsi attended a Level I
grievance meeting with Tucker on May 18, 2001. Tucker denied Kaiser's grievance on
May 25, 2001.
Kaiser appealed her reassignment to teach fourth/fifth grade grievance to Level II
before Cheryl Bushmire (Bushmire), director
of
certificated personnel. However, the charge
alleges that a Level II grievance meeting could not be held all summer, because Tucker was
unavailable due to knee surgery. Article 6
of
the applicable collective bargaining agreement
states, in pertinent part:
In the event a grievance is filed or unresolved on or after May 1
which,
if
left unresolved until the beginning
of
the following
school year, could result in harm to a party in interest, the time
limits set forth herein shall be reduced so that the grievance may
be exhausted prior to the end
of
the school term. By mutual
agreement, the grievance procedure may be continued during the
summer.
In early August 2001, Kaiser asked Bonaccorsi to schedule the Level II grievance
meeting at the end
of
August during the Teacher Work Days. Bonaccorsi agreed. During the
third week
of
August, Kaiser left several telephone messages for Bonaccorsi concerning the
grievance meeting. When Bonaccorsi failed to respond, on August 28, 2001, two days before
teacher work days were to begin, Kaiser sent a memo to Bushmire which stated, in part:
Due to the delay in the Level II Grievance proceedings, as Ed
Tucker, site administrator
of
Grimmer Elementary School, was
unavailable throughout the summer, the difficulty
of
Greg
Bonaccorsi and myself coordinating our communications due to
vacations, meetings, etc., and the pending start
of
the 2001-2002
school year, I am submitting this memo to you.
In the memo, Kaiser further requested that Bushmire maintain Kaiser's third grade assignment
until the grievance was resolved. Kaiser alleges Bushmire ignored the request and failed to
timely schedule a Level II grievance meeting prior to the start of the 2001-2002 school year.
3

Kaiser alleges FUDTA breached its duty
of
fair representation by failing to timely schedule the
Level II grievance meeting.
BOARD AGENT'S DISMISSAL
Kaiser's charge alleged that FUDTA breached its duty
of
fair representation by failing
to expedite a Level II grievance meeting with the District. The Board agent first analyzed
whether Kaiser's charge, filed on March 4, 2002, was timely. The Board agent found that
Kaiser's August 28, 2001, memo to Bushmire indicated that she knew as
of
that date that
Bonaccorsi had failed to secure an expedited Level II grievance meeting. Accordingly, the
Board agent dismissed the charge as untimely, since Kaiser waited more than six months after
she knew
of
the FUDTA's alleged breach
of
the duty
of
fair representation to file her charge.
KAISER'S APPEAL
On appeal, Kaiser disputes the use
of
August 28, 2001, as the trigger date for the statute
of
limitations. Kaiser argues that FUDTA breached its duty
of
fair representation by failing to
expedite her Level II grievance meeting so that it was heard prior to the end
of
summer. 	The
summer ended on September 5, 2001, when the students returned. Kaiser thus argues that
FUDTA had until September
5,
2001, to schedule the grievance meeting and that its failure to
do so
should be measured from that date. Since FUDTA did not breach its duty until
September 5, 2001, Kaiser argues that her charge filed on March 4, 2002, is timely.
FUDT A'S RESPONSE
In response, FUDTA argues that the Board agent utilized the correct date to begin
running the statute of limitations. FUD TA asserts that it is clear from Kaiser's amended
charge that she knew or believed as of August 28, 2001, that FUDT A had failed to schedule a
Level II grievance meeting before the beginning of the school year. That is the date Kaiser
4

wrote to the District asking to schedule a Level II meeting. The letter was prepared after
Kaiser had "left several messages" for Bonaccorsi and had not heard back from him.
	FUDT
A
notes that in the letter, Kaiser references the delay in scheduling the grievance meeting
and
the
difficulty
of
coordinating communications with Bonaccorsi.
FUDTA
argues that Kaiser cannot
now argue that she was unaware
of
the
FUDTA's
alleged delays until after August 28, 2001.
Even
if
Kaiser's charge is timely, FUDTA argues that Kaiser has not alleged a
prima
facie breach
of
the duty
of
fair representation. FUDTA vigorously disputes Kaiser's
allegations that it failed to properly assist Kaiser in her grievance. FUDTA further argues that
Kaiser has failed to allege any facts from which it could
be concluded she was harmed
by
any
supposed delay. According to FUDT A, at most Kaiser has alleged the grievance meeting was
not scheduled as quickly as she would have liked during August 2001. FUDTA claims this is
not even negligence and cannot constitute the higher standard required to constitute a
breach
of
the duty
of
fair representation.
DISCUSSION
Statute
of
Limitations
BERA 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 monthsprior to the
filing
of
the charge." In a claim for breach
of
the duty
of
fair representation, the statute
of
limitations is triggered
"on
the date when the employee, in the exercise
of
reasonable
diligence, knew or should have known that further assistance from the union was unlikely."
(International Union
of
Operating Engineers, Local 501 (Reich) (1986) PERB Decision
No. 591-H; Los Rios College Federation
of
Teachers, CFT/AFT (Violett, et al.) (1991) PERB
Decision No. 889.) In this matter, Kaiser alleges that FUDTA breached its duty of fair
5

representation by failing to secure her an expedited grievance meeting. 	Thus, the question is
when did Kaiser know, or should have known, that FUDTA had failed to secure an expedited
grievance meeting.
The Board finds that Kaiser knew, or should have known, by August 28, 2001, that
FUDTA had failed to secure an expedited grievance meeting. It was on that date that Kaiser
took it upon herself to write the District requesting such a meeting. According to the charge,
Kaiser felt it necessary to write the letter to the District after receiving no reply from
Bonaccorsi to her inquiries about whether FUDTA would act to secure a grievance meeting
prior to the end
of
summer. Further, the record indicates that Kaiser had expressed her
displeasure with Bonaccorsi's representation as early as June 2001. Given these facts, it
appears that the Board agent properly used August 28, 2001, as the date to begin running the
statute
of
limitations.
Duty
of
Fair Representation
Even
if
Kaiser's charge is timely, the Board agrees with FUDTA that Kaiser has failed
to state a prima facie case. Kaiser alleges that FUDTA denied her the right to fair
representation guaranteed by EERA section 3544.92 and thereby violated section 3543.6(b)3.
2 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.
3EERA section 3543.6 states, 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
6

otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
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 (UTLA).) In order to state a prima facie violation
of
this section
of
EERA, Kaiser
must show that FUDTA's conduct was arbitrary, discriminatory or in bad faith. 	In UTLA, the
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 at p. 5.)
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 at p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
In this case, Kaiser's only allegation is that FUDTA failed to secure her an expedited
grievance meeting. The Board has held that a union's case-handling error (e.g., missing the
deadline for filing a grievance) only constitutes negligence and does not rise to the level
of
7

arbitrary conduct sufficient to establish a breach
of
the duty
of
fair representation. (California
School Employees Association (Ciaffoni, et al.) (1984) PERB Decision No. 427.) The courts
have recognized an exception to this rule where the union's negligence foreclosed any remedy
for the grievant. (See Coalition
of
University Employees (Buxton) (2003) PERB Decision
No. 1517-H (discussing various cases interpreting the meaning
of
"arbitrary" conduct).) Here,
however, there is no allegation that Kaiser's grievance was foreclosed or adversely affected.
While FUDTA's alleged handling
of
Kaiser's grievance may constitute negligence, there is
otherwise no allegation
of
bad faith, discriminatory, or arbitrary conduct. Accordingly,
Kaiser's charge must be dismissed for failure to state a prima facie case.
ORDER
The unfair practice charge in Case No. SF-CO-606-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neima joined in this Decision.
8

S1'ATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3 I 98
Fax: (916) 327-6377
s;
~
~..,o,;,"'E.t-lf__f)_({<i,./0
May 30, 2002
Diane M. Kaiser
4572 Gertrude Drive
Fremont, CA 94536
Re: 	Diane M. Kaiser v. Fremont Unified District Teachers Association
Unfair Practice Charge No. SF-CO-606-E
DISMISSAL LETTER
Dear Ms. Kaiser:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 4, 2002. Your charge alleges that the Fremont Unified
District Teachers Association violated the Educational Employment Relations Act (EERA)1 by
breaching its duty
of
fair representation.
I indicated to you in my attached letter dated April 22, 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 May 6, 2002, the charge would be dismissed. 	OnMay 6, 2002, you filed an amended charge.
As amended, your charge makes following factual allegations. You are employed as a teacher
by the Fremont Unified School District at Grimmer Elementary School. During the 2000-2001
school year, you were assigned to teach grade 3.
The District's curriculum included the Packard Grant/Open Court Language Arts Program.
Teachers in certain grades were required to utilize this reading program. Maureen Smith, a
teacher, was designated as the "Literacy Coach" for the Open Court reading program at
Grimmer Elementary School. In or about early October 2000, Ms. Smith placed a memo in
each teacher's mailbox requesting information on their progress through the reading program.
When you did not respond to Ms. Smith's second memo, Principal Ed Tucker sent you a memo
directing you to respond by October 6, 2000.
On October 27, 2000, you met with Mr. Tucker to discuss your evaluation goals for the 2000-
2001 school year. 	During the meeting, Mr. Tucker threatened to assign you to a grade level
which did not utilize the Packard Grant/Open Court Reading Program, if you did not fully
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-606-E
May 30, 2002
Page 2
( 	(
implement the reading program. On one occasion, Mr. Tucker observed you utilizing a
publication that was not from Open Court. Mr. Tucker said he would be discussing the
teachers' progress in the program with Ms. Smith.
In October 2000, you requested assistance from the Association. You informed the
Association that Mr. Tucker was making excessive demands
of
you concerning the Open Court
reading program. 	You also asserted that Mr. Tucker was violating the collective bargaining
agreement by asking Ms. Smith to evaluate the performance
of
the teachers she visited in their
classrooms.
The Association requested that the District provide information concerning the duties
of
the
literacy coach and the information sought by the literacy coach.
On November 7, 2000, Bev Chernoff, District Coordinator
of
the Packard Grant/Open Court
Language Arts Program, explained in a letter to Greg Bonaccorsi, President
of
the Fremont
Unified District Teachers Association and Peg Tracey, Executive Director, that the Packard
Foundation required schools to provide certain information to evaluate the Open Court reading
program. She stated that the literacy coach was to assist teachers in achieving the goals
of
the
grant program and collect information utilized by the Packard Foundation. The information
collected by the literacy coach was not provided to the site principal, was not utilized for
teacher evaluations and the literacy coach was not an evaluator.
On January 18, 2001, Mr. Tucker "fraudulently authored Teacher Comments on [your] first
evaluation." The charge does not describe Mr. Tucker's comments or explain why they were
fraudulent. 	There is no indication that your evaluation included comments concerning your
progress in the Open Court reading program.
On March 14, 2001, you requested a "Level I Complaint Meeting" with Mr. Tucker. 	During
the meeting, you raised concerns about Mr. Tucker's interference with your professional
relationships with your students and their parents, your responsibility to evaluate your students,
repeated interruption
of
your classroom lessons, infringing on your preparation periods and his
unprofessional attitude toward you. Mr. Bonaccorsi attended the meeting as your union
representative.
Mr. Tucker agreed to refrain from engaging in the above complaints. However, approximately
two weeks later Mr. Tucker began engaging in the same conduct. You repeatedly notified
Mr. Bonaccorsi
of
Mr. Tucker's conduct. You allege that Mr. Bonaccorsi and Ms. Tracey
failed to correct the violations made by Mr. Tucker.
On March 30, 2001, Mr. Tucker made an impromptu 60 minute formal observation
of
your
class. You allege that Mr. Tucker "seriously misrepresented the lesson observed in [your]
second evaluation." The charge does not describe any misrepresentation in your evaluation.
On April 2, 2001, Mr. Tucker handed you a memo dated March 30, 2001 which stated that
your grade level assignment for the 2001-2002 school year had been changed from grade 3 to

SF-CO-606-E
May 30, 2002
Page 3
(
grade 4/5. 	The memo stated that the change was required because you had not been providing
your students with the skills they needed for reading. Your charge alleges that Mr.
Tucker
had
never observed you teaching the Open Court reading program.
You informed both the Association and Mr. Tucker that you did not agree with the assignment
to teach grade 4/5.
You allege that Mr. Tucker sexually harassed you
on
numerous occasions.
	You
notified the
Association
of
Mr. Tucker's conduct. The District's sexual harassment policy states,
in
part:
Employees or other individuals who feel aggrieved because
of
conduct they believe constitutes sexual harassment should
directly
or
through a representative inform the person engaging in
such conduct that such conduct is offensive and must stop.
Mr. Bonaccorsi refused your request, as your representative, to inform Mr. Tucker to stop
engaging in offensive conduct. However, Mr. Bonaccorsi told you that he had informed Beth
Robinson, Assistant Superintendent,
of
Mr. Tucker's harassing behavior. Your charge alleges
that you were forced to inform Mr. Tucker yourself to cease his offensive behavior.
	On
April 2, 2001, you requested that Mr. Tucker cease his abusive behavior.
Ms. Tracey informed you that she had referred your sexual harassment complaint to
anattorney. During your first conversation with attorney Margo Feinberg, Ms. Feinberg agreed to
represent you. 	During a subsequent phone conversation with Ms. Feinberg, she told
you
that
Mr. Bonaccorsi did not want her involved. Ms. Feinberg told you that youwould have to
provide your own representation
of
your sexual harassment claims.
On April 23, 2001, the Association filed a grievance on your behalf challenging your
assignment to teach grade 4/5. You and Mr. Bonaccorsi attended a Level I grievance meeting
with Mr. Tucker on May 18, 2001. At the meeting you provided Mr. Tucker with two
evaluation forms which included your corrections. Mr. Tucker denied your Level I grievance
on May 25, 2001.
You appealed your grievance to Level II before Cheryl Bushmire, Director
of
Certificated
Personnel. Following knee surgery, Mr. Tucker was unavailable to participate in the Level II
grievance meeting throughout the summer.
Article 6
of
the CBA states, in pertinent part:
6.10 In the event a grievance is filed or unresolved on or after
May 1 which,
if
left unresolved until the beginning
of
the
following school year, could result in harm to a party in interest,
the time limits set forth herein shall be reduced so that the
grievance may be exhausted prior to the end of the school term.

SF-CO-606-E
May 30, 2002
Page 4
(
By mutual agreement, the grievance procedure may be continued
during the summer.
In early August 2001, you asked Mr. Bonaccorsi to schedule the Level II grievance at the end
of
August during the Teacher Work Days. Mr. Bonaccorsi agreed. During the third week
of
August, you left several telephone messages for Mr. Bonaccorsi concerning the grievance
meeting. When Mr. Bonaccorsi failed to respond, on August 28, 2001, two days before
Teacher Work Days were to begin, you sent a letter to Ms. Bushmire which stated in part:
Due to the delay in the Level II Grievance proceedings, as Ed
Tucker, site administrator
of
Grimmer Elementary School, was
unavailable throughout the summer, the difficulty
of
Greg
Bonaccorsi and myself coordinating our communications due to
vacations, meetings, etc., and the pending start
of
the 2001-2002
school year, I am submitting this memo to you.
You requested that Ms. Bushmire maintain your grade 3 teaching assignment until your
grievance was resolved.
You allege that Ms. Bushmire ignored your request and failed to timely schedule a Level II
grievance meeting prior to the start
of
the 2001-2002 school year. You also allege that the
Association breached its duty
of
fair representation
by
failing to timely schedule the Level II
grievance meeting.
Based on the facts stated above, PERB does not have jurisdiction over the allegations in your
charge.
As discussed in the attached letter, 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 prior to the filing
of
the charge." The six-month limitations period begins to
run once the charging party knows, or should have known,
of
the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.) The
charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi
Unified School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
As I previously explained in my April 22, 2002 letter, your charge was filed on March 4, 2002.
PERB may only consider unfair practices which occurred within six months prior to the filing
of an unfair practice charge. The statute of limitations in your case began to run on
September 4, 2001. 	Only allegations
of
unfair practices which occurred on or after
September 4, 2001 are timely filed.
Your charge alleges that the Association breached its duty of fair representation when it failed
to timely schedule the Level II grievance meeting. You were aware no later than August 28,
2001, however, that Mr. Bonaccorsi had failed to timely schedule a grievance meeting. 	Since

SF-CO-606-E
May 30, 2002
Page 5
(
this conduct occurred prior to September 4, 200
l,
your charge is untimely filed and is hereby
dismissed.
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
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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CO-606-E
May 30, 2002
Page 6
(
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
Byltfiwtil
Regional Attorney
Attachment
cc: Priscilla Winslow

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
I 8th Street
Sacramento,
CA
95814-4174
Telephone: (9 I 6) 327-8385
Fax: (916) 327-6377
April 22, 2002
Diane M. Kaiser
4572 Gertrude Drive
Fremont, CA 94536
(
Re: 	Diane M. Kaiser
v.
Fremont Unified District Teachers Association
Unfair Practice Charge No. SF-CO-606-E
WARNING LETTER
Dear Ms. Kaiser:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 4, 2002. Your charge alleges that the Fremont Unified
District Teachers Association violated the Educational Employment Relations Act (EERA)1 by
breaching its duty
of
fair representation.
Your charge states in its entirety:
Fremont Unified District Teacher's Association has failed to
correct the violations in my contract under Articles
1,
6, 8, 9, 10,
28 and Board Policy 4119 and AR 4119. These violations
occurred during my employment with Fremont Unified School
District. I will be submitting an amended charge. Attachment/s:
A,B.
Attached to the charge is a letter you wrote to Association President Greg Bonaccorsi, dated
June 19, 2001. The letter provides a summary
of
meetings and conversations you had with
Mr. Bonaccorsi in May and June 2001.
On March 7, 2002, I called you and spoke you about your charge. You stated that you had
additional information and intended to file an amended charge. I explained that you needed
to
include in your amended charge a detailed statement describing the conduct which you allege
demonstrates that the Association breached its duty
of
fair representation or otherwise
discriminated against you. To date, I have not received an amended charge or any further
information. As filed, your charge fails to state a prima facie case.
PERB Regulation 32615(a)(5) states that a charge must contain a "clear and concise statement
of the facts and conduct alleged to constitute an unfair practice." A charging party must allege
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-606-E
April 22, 2002
Page 2
the "who, what, when, where and how"
of
an unfair practice. Legal conclusions are
insufficient to demonstrate a violation
of
EERA. (State
of
California (Department
of
Food and
Agriculture) (1994) PERB Decision No. 1071-S; United Teachers-Los Angeles (Ragsdale)
(1992) PERB Decision No. 944; Charter Oak Unified School District (1991) PERB Decision
No. 873, fn. 6.)
""
Furthermore, allegations
of
unfair labor practices under the EERA are covered by a six-month
statute
of
limitations. 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 charging party bears
the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District
(1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB
Decision No. 1197-S.)
Your charge was filed on March 4, 2002. The statutory limitations period began to
run
six
months prior to the filing
of
the charge on September 4, 2001. Thus, only alleged unfair
practices which occurred on or after S~ptember 4, 2001 are timely filed. 	The letter attached
to
your charge references meetings and phone conversation which occurred in May and June
2001. This conduct occurred well outside the statutory limitations period and does not
demonstrate that your charge was timely filed.
Assuming your charge is timely filed, a charging party must allege facts which demonstrate
that the exclusive representative denied the charging party the right to fair representation. 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, 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 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:

SF-CO-606-E
April 22, 2002
Page 3
(
"
...
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 does not describe any conduct by union representatives which demonstrates
arbitrary, discriminatory or bad faith conduct.
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
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 May 6, 2002, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
~~Regional Attorney