California Teachers Association and Oakland Education Association (Welch) (PERB 1850E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MELANIE J. WELCH,
Charging Party, Case No. SF-CO-686-E

Vv. PERB Decision No. 1850

CALIFORNIA TEACHERS ASSOCIATION AND | 4¥8ust 17, 2006

OAKLAND EDUCATION ASSOCIATION,

Respondent.

Appearances: Melanie J. Welch, on her own behalf; Priscilla Winslow, Attorney, for
California Teachers Association and Oakland Education Association.

Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION

NEUWALD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Melanie J. Welch (Welch) of a Board agent’s dismissal (attached) of her
unfair practice charge. The charge alleged that the California Teachers Association (CTA) and
Oakland Education Association (OEA) violated the Educational Employment Relations Act
(EERA)! by breaching its duty of fair representation.

The Board has reviewed the entire record in this case including the original and
amended unfair practice charge, the warning and dismissal letters, Welch’s appeal and CTA’s

response to the appeal.” The Board agent properly dismissed the charge on the basis that CTA

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

The Board did not consider appellant’s request for late filing for good cause as Welch
failed to demonstrate good cause.

is not the exclusive representative of the certificated bargaining unit in which Welch is
included, and that OEA did not breach its duty of fair representation to Welch. The Board
finds the warning and dismissal letters to be free from prejudicial error and adopts them as the
decision of the Board itself.
ORDER
The unfair practice charge in Case No. SF-C0-686-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Shekjoined in this Decision.
2

=ST=A=~=,,~=O=F=C=:~=,E=IF=O=RN=l=A======r=.·===============(==--··.· ·l... ARNOLD SCHWARZENEGGER, Gj)vernor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax:(916)327-6377
March 9, 2006
Melanie J. Welch
1840 Sutterville Road, #4
Sacramento, CA 95822
Re: 	Melanie J. Welch v. California Teachers Association & Oakland Education Association
Unfair Practice Charge No. SF-CO-686-E
DISMISSAL LETTER
Dear Ms. Welch:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 27, 2006. Your charge alleges that the California Teachers
Association (CTA) violated the Educational EmploymentRelations Act (EERA)1 by breaching
its duty of fair representation.
I indicated in the attached letter dated February 17, 2006, 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 February 28, 2006, the charge would be dismissed. You were
granted an extension of time and an amended charge was timely filed on March 3, 2006.
Your charge alleges that CTA breached its duty of fair representation in the manner in which it
represented you in matters with your employer, the Oakland Unified School District (District),
including the termination of your employment in February 1999. In the amended charge, you
add the Oakland Educators Association (OEA) as a separate Respondent in this case.
Briefly, as more fully summarized in the attached letter, you were hired as an intern teacher by
the District in September 1998. Your employment was terminated in February 1999, after you
notified the District of serious health and safety violations involving your classroom and
school site.
Initially, you contacted OEA for assistance in reporting the health and safety violations. OEA
representatives contacted the District, filed a grievance on your behalf and assisted you with
your concerns. In addition, OEA represented you when the District falsely accused youof
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-686-E
March 9, 2006
Page 2
erratic behavior, placed you on administrative leave and eventually terminated your
employment.
At some point, rather than taking your grievance to arbitration, OEA referred you to CTA,
which assigned an attorney to represent you. Over the next five years, CTA attorney David
Weintraub used the circumstances of your termination to file lawsuits to establish legal
precedents granting rights for intern teachers and defining "reinstatement." Despite your
repeated requests, Mr. Weintraub refused to address your complaints about negligence, safety
violations, defamation and other retaliation for whistleblowing. Mr. Weintraub also failed to
challenge the District's assertion that it had non-reelected you, resulting in the court affirming
the District's refusal to reinstate you to a teaching position.
Ultimately, on August 5, 2005, Mr. Weintraub notified you that he and CTA General Counsel
Beverly Tucker had decided not to appeal the court's final decision denying you reinstatement
to your previous position with the District.
As amended, you contend that all of the allegations in your charge are timely under the statute
of limitations. In cases alleging a breach of the duty of fair representation, the six month
statutory limitations period begins to run on the date when the charging party, in the exercise
of reasonable diligence, knew or should have known that further assistance from the union was
unlikely. (Los Rios College Federation of Teachers, CFT/AFT (Violett, et al.) (1991) PERB
Decision No. 889.)
The charge was filed on January 27, 2006. CTA notified you on August 5, 2005 that it did not
intend to file an appeal and would not pursue your case any further. 	This date falls within the
six-month statutory limitations period. As previously discussed, all other allegations occurring
before July 27, 2005, including the decision not to take your grievance to arbitration, occurred
outside the statutory time period and are dismissed.
Furthermore, the charge continues to assert a separate theory of a violation of the duty of fair
representation against CTA. You contend that CTA had a duty independent of OEA to fairly
represent you when it initiated and pursued litigation on your behalf.
For the reasons discussed in the attached letter, PERB has held that CTA is not an exclusive
representative and does not owe a duty of fair representation to the certificated employees of
the District. (California Teachers Association, CTA/NEA (Torres) (2000) PERB Decision
No. 1386.) Thus, this allegation is dismissed.
The amended charge also alleges that based on the conduct described in the charge, OEA
breached its duty of fair representation.
Even if this allegation were timely, it does not state a prima facie case. As previously
addressed, 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

(
SF-CO-686-E
March 9, 2006
Page 3
prima facie violation of EERA, a charging party must show that the respondent's conduct was
arbitrary, discriminatory or in bad faith. In United Teachers of Los Angeles (Collins), the
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 alleges that you brought your health and safety concerns to OEA. OEA
representatives contacted the District, filed a grievance on your behalf and assisted you with
representation when the District falsely accused you of erratic behavior, placed you on
administrative leave and terminated your employment. The charge alleges, however, that OEA
decided to refer your case to CTA to file a lawsuit on your behalf rather than take your 	·
grievance to arbitration. This conduct does not demonstrate arbitrary, discriminatory or bad
faith conduct by the Union. The charge suggests that OEA was responsive to your requests for
assistance by contacting the District, representing you at meetings and filing a grievance on
your behalf. There is no evidence that OEA's decision not to take your grievance to arbitration
was "without a rational basis or devoid of honest judgment." Thus, this allegation is
dismissed.
Finally, as more fully discussed in the attached letter, an exclusive representative does not owe
a duty of fair representation to bargaining unit employees in extra-contractual forums.
(California State Employees Association (Parisi) (1989) PERB Decision No. 733-S.) OEA
obtained a CTA attorney to file a lawsuit on your behalf to challenge the termination of your
employment. Because court proceedings are extra-contractual forums, the duty of fair
representation does not attach to OEA's representation of your interests in court.

SF-CO-686-E
March 9, 2006
Page 4
The amended charge alleges, however, that once OEA volunteered to represent you in an extra-
contractual forum by filing a lawsuit on your behalf, the duty of fair representation attaches.
This theory has previously been brou~ht before the Board. The theory arises under the
Meyers-Milias-Brown Act (MMBA), the labor statute governing local government agencies,
in Lane v. IUOE Stationary Engineers. Local 39 (1989) 212 Cal.App.3d 164. PERB has never
adopted the Lane theory, however, as a basis for an unfair practice. In Oakland Education
Association (McKeel) (2000) PERB Decision No. 1383, the Board stated:
PERB has viewed such a theory as implicating a cause of action
in state court rather than a matter within its jurisdiction.
(California State Employees Association (Cohen) (1993) PERB
Decision No. 980-S.) This follows logically from the notion that
such a breach of duty does not arise out of the union's status as an
exclusive representative, as noted in Lane.
Accordingly, the allegation that OEA breached its duty of fair representation in the manner in
which it represented you in litigation filed on your beha)f, does not state a prima facie case and
is dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 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
nanie 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,
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
2 The MMBA is codified at Government Code section 3500 et seq.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-686-E
March 9, 2006
Page 5
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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
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 	u 	4Af!JRobin W. Wesley
Regional Attorney
Attachment
cc: Priscilla Winslow

1

STATE OF CALIFORNIA 	( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916)327-6377
February 17, 2006
Melanie J. Welch
1840 Sutterville Rd, #4
Sacramento, CA95822
Re: 	Melanie J. Welch v. California Teachers Association
Unfair Practice Charge No. SF-CO-686-E
WARNING LETTER
Dear Ms. Welch:
(
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 27, 2006. Your charge alleges that the California Teachers
Association (CTA) violated the Educational Employment Relations Act (EERA)1 by breaching
its duty of fair representatfon.
The charge makes the following factual allegations. You were hired as an intern teacher by the
Oakland Unified School District in September 1998. In October 1998, you reported to the
District that your classroom was contaminated with asbestos and dangerous levels of mold.
Subsequently, you filed a complaint with Cal OSHA about the condition of your classroom.
On October 23, 1998, you were transferred to another school. This school was alleged to be an
extremely dangerous school where many students and teachers had been attacked by gangs of
boys.
On October 29, 1998, you were attacked, beaten and injured by a gang of boys at the school.
When you complained that the school was unsafe and you were afraid to teach there, you were
falsely accused of "erratic behavior, including hitting and kicking students." An internal
investigation exonerated you of the false accusations. Nonetheless, your employment was
terminated in February 1999.
You sought assistance from the Oakland Educators Association and were assigned legal
representation by CTA. CTA General Counsel Beverly Tucker informed you that CTA would
provide you with legal representation only if you withdrew the complaints you filed with
Cal OSHA and the EEOC. You withdrew your complaints and CTA filed a lawsuit on your
behalf. You discovered later that CTA was interested in using your case to establish precedent
on probationary rights for intern teachers. Despite your numerous requests, CTA's contract
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-686-E
February 17, 2006
Page 2
(
attorney David Weintraub refused to address in the lawsuit your complaints about negligence,
safety violations, defamation and other retaliation for whistleblowing. Mr. Weintraub made it
clear that CTA's interest was in obtaining legal precedent that established that certain
temporary teachers were entitled to the rights and protections of probationary teachers under
the Education Code. Mr. Weintraub assured you that he would get you reinstated so that you
could obtain an administrative hearing and raise the issues you wanted to address.
While your first case was pending in the Court of Appeal, the District sent you a letter in
March 2001 stating that you were non-reelected for the 2001-02 school year in case the District
lost the appeal and you were determined to be a probationary teacher. You immediately
provided the letter to Mr. Weintraub who refused to challenge the validity of the letter. You
continued to give Mr. Weintraub lists of the arguments he could make to challenge legal
defects in the letter.
After the Court of Appeal issued an unpublished decision upholding CTA's position, CTA
initiated an effort to convince the court to publish its decision. When you finally obtained a
copy of the decision, you were shocked to find that it contained false accusations against you
and that CTA had never filed a motion to strike these allegations.
After the decision was published, CTA refused to pay for any more legal representation to
enforce the court order for your reinstatement because you had not maintained your union
membership by paying dues.
Eventually, CTA agreed to pay for further legal representation only on the condition that
Mr. Weintraub sought a second legal precedent that would define "reinstatement." The District
claimed that you had been reinstated and non-reelected for the 2001-02 school year based on
its March 2001 letter.
The charge alleges that in August 2002, Mr. Weintraub deliberately prevented you from being
rehired by the District so he could pursue the second case and establish legal precedent
defining "reinstatement."
On August 13, 2002, Mr. Weintraub filed a contempt motion based on the District's refusal to
reinstate you. 	Despite at least five contempt hearings, the court dismissed the motion for
contempt.
In April 2004, Mr. Weintraub filed a new case seeking to enforce the order for your
reinstatement. However, Mr. Weintraub again refused to challenge the March 2001 non-
reelection letter. The court held that you had been non-reelected based on the March 2001
letter only because Mr. Weintraub had never challenged it. The Court of Appeal affirmed the
trial court's ruling on July 28, 2005.
On August 5, 2005, Mr. Weintraub notified you that he and Ms. Tucker had decided not to
appeal the latest decision denying you reinstatement to your previous position with the District.

SF-CO-686-E
February 17, 2006
Page 3
( 	(
Based on the facts stated above, the charge does not state a prima facie case.
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 of limitations is an affirmative defense which
has been raised by the Respondent in this case. (Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, Charging Party 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 oflnsurance) (1997) PERB
Decision No. 1197-S.)
The charge was filed on January 27, 2006. Thus, the statute of limitations period extends six
months prior to the filing of the charge to July 27, 2005. Accordingly, only alleged unfair
practices which occurred on or after July 27, 2005, are timely filed. 	On August 5, 2005, CTA
notified you that it did not intend to file an appeal in your final case. This is the only
allegation in your charge which falls within the statutory limitations period.
On the merits, the charge alleges that CTA breached its duty of fair representation in the
manner in which it handled the litigation involving your case, including legal strategy.
As_an initial matter, the charge is filed against CTA rather than the Oakland Education
Association (Association). Under EERA, the Association has been designated as the exclusive
representative of the District's certificated employees. As the exclusive representative, the
Association bears the duty to fairly represent bargaining unit members. Oftentimes, local
teachers unions affiliate with other organizations such as CTA. However, CTA is not the
exclusive representative of the certificated employees and it has no independent obligation to
represent bargaining unit members or negotiate with the District. As such, under the law, CTA
does not owe a duty of fair representation to the District's certificated employees. (California
Teachers Association, CTA/NEA (Torres) (2000) PERB Decision No. 1386.) Since CTA does
not owe you a duty of fair representation, your charge alleging that CTA breached its duty of
fair representation in the manner in which it handled your case, must be dismissed.
Even assuming your charge was properly filed against the Oakland Education Association, the
charge does not demonstrate a breach of the duty of fair representation under EERA.
EERA imposes upon an exclusive representative a duty to fairly represent all bargaining unit
members in matters involving contract negotiations, administration of the collective bargaining
agreement and grievance handling. 	(Fremont Teachers Association (King) (1980) PERB
Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.)
However, an exclusive representative does not owe a duty of fair representation to bargaining
unit employees in forums outside these specific areas of responsibility. (California State
Employees Association (Parisi) (1989) PERB Decision No. 733-S.) This is because the
employee may obtain representation other than the exclusive representative in extra-contractual

SF-CO-686-E
February 17, 2006
Page 4
( 	(
forums. 	Accordingly, while a union may voluntarily represent employees in extra-contractual
forums, the duty of fair representation does not attach to an exclusive representative in
proceedings outside the collective bargaining agreement such as PERB or the courts.
Therefore, the Association does not owe a duty of fair representation to bargaining unit
employees when it represents them in matters filed in the courts. Accordingly, assuming your
charge alleged that the Association breached its duty of fair representation when it failed to
provide you with adequate representation in the manner in which it handled your case in court,
it does not demonstrate a violation of the EERA. Thus, your charge 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
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 February 28, 2006, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
fff:~7Regional Attorney