California Faculty Association (Wunder) (PERB 1889H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HAROLDENE F. WUNDER,
Charging Party,
V.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
Case No. SA-CO-24-H
PERB Decision No. 	1889-H
March 	1, 	2007
Appearances: Haroldene F. Wunder, on her own behalf; Rothner, Segall & Greenstone by
Bernhard Rohrbacher, Attorney, for California Faculty Association.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION
SHEK, Member: This case is before the. Public Employment Relations Board (Board)
on exceptions filed by Haroldene F. Wunder (Wunder) to a proposed decision (attached) of the
administrative law judge (ALJ). In the proposed decision, the ALJ found that the California
Faculty Association (CFA) did not breach the duty of fair representation owed Wunder under
the Higher Education Employer-Employee Relations Act (HEERA)1, when in February, 2004,
it decided not to advance her grievance to arbitration. The ALJ thereupon dismissed the
complaint and the underlying unfair practice charge.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, complaint, stipulated record, Wunder's statement of exceptions and CF A's response
thereto. The Board finds the ALJ's findings of fact and conclusions of law to be free of
prejudicial error and adopts the proposed decision as the decision of the Board itself.
1HEERA is codified at Government Code section 3560, et seq.

ORDER
The complaint and the W1derlying W1fair practice charge in Case No. SA-C0-24-H are
hereby DISMISSED WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Neuwald joined. in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
HAROLDENE F. WUNDER,
Charging Party,
V.
CALIFORNIA FACULTY ASSOCIATION,
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CO-24-H
PROPOSED DECISION
(8/26/05)
Appearances: Haroldene Wunder, on her own behalf; Rothner, Segall and Greenstone by
Bernhard Rohrbacher, Attorney, for California Faculty Association.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
Professor Haroldene Wunder initiated this action on August 19, 2004, by filing an
unfair practice charge against the California Faculty Association (CF A). On September 28,
2004, the Office of General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint alleging that CFA breached the duty of fair representation owed
Wunder in the manner it processed her grievance and by refusing to pursue her grievance to
arbitration.
Specifically, the complaint alleges that a CFA representative told Wunder it was not
"normal or necessary" for a grievant to attend a grievance hearing; Wunder was not informed
of the date of the grievance hearing; and Wunder's request to attend the hearing was not
communicated to the representative handling the grievance, despite the fact that a
representative later told her that CFA "normally notifies the grievant when the hearing takes
place." The complaint alleges, in addition, that CFA appealed the grievance to arbitration after
the contractual time for doing so expired, and, contrary to the agreement, Wunder was

informed by CFA that there was no specified time for appealing to arbitration. Eventually,
CF A declined to pursue the matter to arbitration.
Pursuant to a pre-hearing motion filed by CF A, the undersigned dismissed all
allegations in the complaint as time-barred, except the allegation that CF A refused to advance
Wunder's grievance to arbitration. Therefore, the only remaining issue in this proceeding is
whether CF A's decision not to proceed to arbitration breached the duty of fair representation.
It is alleged that CFA, by this conduct, breached the duty of fair representation owed
Wunder under the Higher Education Employer-Employee Relations Act (HEERA) section
3578 and thereby violated HEERA sections 3571.l(b) and 3571.l(e). 1 CFA answered the
complaint on October 20, 2004, generally denying all allegations and setting forth certain
affirmative defenses. Denials and defenses will be addressed below, as necessary.
A settlement conference was conducted by a PERB agent on October 22, 2004, but the
matter was not resolved. The undersigned conducted a hearing in Sacramento on February 17,
2005. With the submission of the final brief on April 27, 2005, the matter was submitted for
decision.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code. Section 3571.1 states in
relevant part that it is unlawful for an employee organization to:
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
(e) Fail to represent fairly and impartially all the employees in
the unit for which it is the exclusive representative.
2

FINDINGS OF FACT
Professor Wunder is a higher education employee within the meaning of section
3562(f). CF A is an exclusive representative, as defined in section 3562(j), of a systemwide
unit (Unit 3) of faculty in the California State University (CSU or University). Wunder is a
member of that unit. At all relevant times, CFA and CSU were parties to a collective
bargaining agreement covering the faculty unit. The agreement contains a grievance procedure
that ends in binding arbitration.
Wunder is a professor in the department of accountancy at CSU's Sacramento campus.
She holds an M.A. in accountancy and a Ph.D. with a major in accountancy and a minor in tax
and law. Her primary field of expertise is taxation. The roots of this dispute lie in the
assignment of Wunder to teach a lower division accounting course which she had not taught in
some ten years. She contested the assignment in an appeal to the department that took place
prior to the filing of the grievance.
In a May 16, 2003, memo, College of Business Administration Associate Dean Richard
Guarino responded, summarizing the circumstances surrounding the assignment as follows. 	In
Fall 2002, Dr. Merle Martin, chairperson of the accountancy department, notified the three
faculty members who normally teach tax courses that he would let them agree among
themselves how to allocate teaching those courses. Martin said that if they could not agree on
how to allocate the courses, he would do so and in the semesters with a low number of tax
course assignments he would rotate them through lower division accounting courses.
Eventually, Martin established a schedule where the three faculty members were rotated
through lower level accounting courses in semesters when there were not enough tax courses to
provide each of the three professors with tax courses to teach. As a result, Wunder was
assigned to teach Accounting I in Spring 2004. She was notified of the assignment in January
3

2003. Each of the other professors who regularly teach taxation had been assigned to teach the
lower level accounting course before Wunder was assigned to do so.
A portion of the May 16, 2003, memo from Guarino to Wunder captures the essence of
the University's position with respect to Wunder's assignment.
You object to your Spring 2004 assignment because on your
scheduling preference, you selected a teaching schedule that did
not include Accountancy I. Scheduling preferences are not
determinative of final assignments. A Chair may assign a course
to a faculty that the faculty has not included in his or her
scheduling preference.
You believe you should be given preference regarding the
assignment of tax courses because you have brought grants to the
department and because your publishing record constitutes ample
evidence of your contribution to the Department, College and
University. These factors have not been part of the practice used
by the Accountancy Department to make teaching assignments in
the past and cannot be used as a basis for appealing an otherwise
reasonable teaching assignment.
Guarino said that faculty members with a doctorate in accounting, regardless of their specialty,
are considered qualified to teach basic concepts of accounting. The memo continued:
The central issue to be decided is whether you were assigned an
unreasonable workload when you were assigned two sections of
Accountancy I for the Spring semester of 2004. Article 20.3 b
and c [of the collective bargaining agreement] provide that a
number of factors shall be considered in making assignments.
You argue that Article 20.3b does not limit the degree to which
such consideration is given to research, thereby providing
department chairs with the latitude to develop teaching schedules
that appropriately support productive faculty's research efforts.
Your contention is correct but not complete. Although the article
does not limit the degree to which consideration should be given
to research, it does not provide direction as to what degree
research should be given. Latitude provides discretion that
allows for decision makers to decide to give more or less
emphasis on particular factors. 	It is up to the chair to consider all
of the factors listed and others not listed in making assignments.
Moreover, Section 20.3c provides "prior practices of the
University shall be among the primary elements to be
considered." The Accountancy Department has a practice of
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assigning full-time faculty with an Accountancy Ph.D. to lower
division courses. Nine of the full-time faculty had been assigned
to lower division courses in the past five semesters. This
included both of your full-time colleagues who also primarily
teach tax courses. The policy had been announced at a
Department meeting, reflected in the Department minutes, and
explained to you in emails.
Guarino concluded:
Assigning you to a lower division accountancy course on a
rotating basis when upper division tax courses are not avE),ilable to
meet the course needs of the faculty who regularly teach tax is
not an unreasonable assignment. This is particularly true when
the assignment for Spring of 2004 was identified more than one
year in advance.
On May 19, 2003, Wunder filed a grievance alleging that she had been assigned courses
to teach outside her field for the Spring 2004 semester. The grievance alleged a violation of
Article 20, Workload. The relevant provisions of Article 20 are the following.
20.1.c: The performance of instructional responsibilities extends
beyond duties in the classroom and includes such activities as:
preparation for class, evaluation of student performance, syllabus
preparation and revision, and review of current literature and
research in the subject area, including instructional methodology.
Research, scholarship and creative activity in the faculty
member's field of expertise are essential to effective teaching.
Mentoring students and colleagues is another responsibility that
faculty members are frequently expected to perform.
20.1.d: The professional responsibilities of faculty members
include research, scholarship and creative activity which
contribute to their currency, and the contributions made within
the classroom and to their professions. The professional
responsibilities of faculty members are fulfilled by participation
in conferences and seminars, through academic leaves and
sabbaticals that provide additional opportunities for scholarship
and preparation, and through a variety of other professional
development activities.
20.2.b: The instructional assignments of individual faculty
members in the classroom, laboratory, or studio, will be
determined by the appropriate administrator after consultation
with the department chair or designee and/or the individual
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faculty member. The department or other appropriate unit's
overall instructional or course assignments shall be consistent
with department and student needs.
20.3.a: Members of the bargaining unit shall not be required to
teach an excessive number of contact hours, assume an excessive
student load, or be assigned an unreasonable workload or
schedule.
20.3.b: In assignment of workload, consideration shall be given
at least to the following factors: graduate instruction, activity
classes, laboratory courses, supervision, distance learning, sports,
and directed study. Consideration for adjustments in workload
shall be given to at least the following: preparation for
substantive changes in instructional methods, research, student
teacher supervision, thesis supervision, supervision of fieldwork,
and service on a University committee.
Wunder alleged, in essence, that she should not be assigned to teach a lower division
accounting course, Accounting I, because it is outside her field of expertise, and that she was
not consulted by the appropriate administrator prior to scheduling the course as required by the
contract.2 Wunder argued that she was not current in the lower level course and was current in
taxation. As a remedy, Wunder sought the assignment of courses in her field of study.
Wunder was represented by Lynn Cooper, chairperson of the CFA Faculty Rights
Committee on the Sacramento campus. The two women met before the Level I grievance
meeting and discussed the case. In a June 3, 2003, e-mail to Teresa Garcia, CF A's
representation secretary who tracks grievances for the union in Northern California, Cooper
informed Garcia of the date of the Level I meeting and noted that "I also don't think Wunder
has a strong case."
Wunder testified about several comments made by Cooper and about Cooper's conduct
at or about the time of the Level I meeting as evidence that CFA did not fairly represent her.
Accounting I is an undergraduate course that covers primarily financial accounting
and there are no prerequisites to take the class. The last time Wunder taught the course was
1994.
6

Wunder said that, upon meeting Cooper for the first time, Cooper asked her if she was a
member of CF A. Cooper agreed that she may have asked the question or a similar question.
But Cooper also testified that Wunder's membership in CFA was irrelevant because it did not
effect the manner in which she was represented. She said CF A is obligated to represent and
has represented members and nonmembers alike.
Wunder also testified that Cooper provided her with no advice prior to the Level I
meeting and told her "CSU always denies CF A grievances at level one, that is the campus
level." Wunder testified on this point apparently to show a defeatist attitude by CF A. In
response, Cooper testified that she may have said something similar to Wunder's testimony,
but her (Cooper's) comment was based on years of experience handling grievances at Level I.
Based on her experience, Cooper said, if CSU believes it will lose a grievance it will seek to
negotiate a settlement prior to Level I, so that the grievances that actually reach Level I are
typically denied by the University. For this reason, Cooper continued, the grievance procedure
is stacked against employees whose grievances reach Level I. CFA enjoys more success in
grievances that go beyond Level I.
Wunder further testified that Cooper hugged CSU representative Patricia Clark-Ellis at
the Level I meeting. Cooper agreed that she may have hugged Clark-Ellis, but explained that
she has known Clark-Ellis for years and actually mentored her as a young faculty member.
Cooper said if she gave Clark-Ellis a hug, it was only because she had not seen her in a long
time.
Both Cooper and Wunder attended the Level I hearing on July 8, 2003. Wunder
testified that she presented the case and Cooper said little or nothing. Cooper, on the other
hand, testified that Wunder's testimony in this regard is "absolutely false." Cooper said she
participated in the meeting and advanced the arguments given to her earlier by Wunder; that is,
7

Wunder had been improperly assigned to teach a class without consultation. And Cooper said
her advocacy is not always evidence that she believes the grievance has merit. It is not
unusual, Cooper credibly testified, for her to present an argument on behalf of a grievant at
Level I even though she believes there has been no contract violation. As more fully discussed
below, it is unnecessary to resolve this dispute.
Wunder argued at the Level I meeting that Martin and Guarino violated Article 20 of
the collective bargaining agreement by improperly assigning her Accounting I for the Spring
2004 semester without proper consultation. Documents in the grievance record show that,
beginning in late 2002, Wunder communicated about the assignments with Martin and Guarino
on many occasions through memoranda, e-mail and meetings in an attempt to avoid the
assignment. However, as described above, Wunder was given the assignment over her protest.
After the Level I meeting, Wunder testified, Cooper told her that "it was the best
documented and presented level one grievance that she had encountered," and "most grievants
do not submit and present documentation." Cooper conceded that she made these comments to
Wunder, but meant only to convey the point that the grievance was well presented and
documented, not that the documentation or presentation proved a contract violation. In fact,
Cooper testified, she told Wunder prior to the Level I meeting that she did not think a contract
violation had occurred.
After the Level I grievance meeting, Cooper informed Garcia by e-mail of her
assessment of the case.
Wunder makes a strong case for why she should not have to teach
a particular class that is outside of her field of expertise. I'm not
convinced that it is a contract violation. CFA should certainly
take it to Level II, if necessary. The University will argue that
scheduling is up to the discretion of the chair of the department,
and therefore Wunder's concerns are not a violation of the
contract, as much as unhappiness with her teaching schedule.
8

Cooper reiterated in her testimony that Wunder had "presented volumes" as to why she should
not have to teach the class, but the assignment still did not violate the agreement. Cooper
testified: "I never thought it was a contract violation. I thought it was she didn't want to teach
the class because she didn't feel like she should have to teach the class. And she had reasons
why she felt that way." However, Cooper continued, although the schedule is to be established
after consultation between the department and the faculty member, the department makes the
final decision and there are times when the faculty member doesn't like his or her schedule. "I
have a night class on Thursday nights. I wish I didn't have a night class on Thursday nights.
But ... it's not a contract violation," Cooper testified. On August 5, 2003, Clark-Ellis denied
the grievance. Cooper said she recommended the grievance be taken to Level II merely out of
fairness.
Rick Nadeau is CF A's Northern California representative and mainly handles
arbitrations and grievances for the union. On August 20, 2003, Wunder delivered to him a
detailed 24-page analysis of the Level I denial, which Nadeau read along with other supporting
documents. He said Wunder's Level I rebuttal was "a large narrative" that was "almost like a
brief."
Among other things, Wunder' s rebuttal indicates that Martin had considered faculty
preferences in some detail before making assignments, and Guarino had upheld her Spring
2004 assignment despite her assertions that she was not current in Accounting I or 11.3 Wunder
adamantly disagreed with Clark-Ellis' decision that the contract had not been violated and
3 Wunder had submitted several memos to Martin concerning the assignment. At some
point in the communications with Martin it appears that he lost patience with the process.
Wunder wrote in the rebuttal that on two occasions he abruptly ended conversations, saying
"I'm done talking" and referred her to other administrators. At another point in the rebuttal,
Wunder wrote that Guarino wanted to remain neutral and serve as a "sounding board" in the
discussions.
9

argued forcefully in the rebuttal to the Level I decision that Clark-Ellis had not adequately
addressed the issues raised by the grievance.
A Level II grievance meeting was scheduled for September 16, 2003, at the Office of
the Chancellor level. Prior to the meeting, CF A Administrative Assistant for Representation,
Dorothy Poole, informed Wunder by letter of August 21, 2003, that "it is your right to attend
this meeting; however, due to its nature (an appellate review of the existing record), the
grievant's attendance is neither necessary nor usual." Nadeau similarly testified that grievants
rarely attend Level II meetings because it is rare that CSU will settle a grievance at that level.
Level II is at the Chancellor's office, Nadeau said, and the Chancellor's representative almost
always defers to the position taken by the campus at Level I. As a result, grievances that are
processed to Level II either are withdrawn or pursued to arbitration, according to Nadeau.
Wunder responded the next day, August 22, informing Poole that she had delivered a
written rebuttal to the Level I decision to Nadeau and that she chose not to attend the Level II
meeting. Wunder asked Poole to inform her of the date of the Level II meeting, but Poole did
not do so.
Nadeau did not speak with Wunder prior to the Level II meeting. However, his
October 4, 2003, e-mail to Wunder indicates he had a copy of her response to Level I and read
it along with the remainder of the grievance file prior to the Level II meeting. It is not
established in the record precisely what would have been gained by a meeting between Nadeau
and Wunder. She had done a thorough job of documenting her claims and her arguments were
amply set forth in the materials in Nadeau's possession.
The Level II meeting was held on September 16, 2003. In notes written immediately
after the meeting, Nadeau set out his preliminary assessment of the grievance.
Grievant believes CBA 20 [sic] violated when she was assigned a
class she hadn't taught in 10 yrs and which is not in her area of
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specialty (taxation). She claims a lack of proper consultation,
although chair claims there was a discussion among 3 full
professors regarding these assignments and how they could share.
Although it is true she was assigned classes outside of her special
area of interest - I see no serious contract violation and will not
recommend this case to arbitration.
In an October 3, 2003, e-mail, Nadeau apologized to Wunder for lack of notice of the
Level II meeting, but noted that the meeting was conducted on that date to take advantage of
the availability of CSU representatives. Nadeau wrote in the e-mail that "the University will
most likely deny the grievance, so it is very likely you will be required to teach [Accounting I].
You need to be aware that a refusal to teach a course you have been assigned to teach could
lead to a disciplinary action." The next step was to await the Level II response from CSU.
Section 10.5.b of the contractual grievance procedure states: "The designated individual
in the Office of the Chancellor shall respond no later that fourteen (14) days after the [Level II]
conference." However, CSU issued no Level II response to Wunder's grievance.
Grievances not settled at Level II may be appealed to arbitration under section 10.5.c,
which states:
If the grievance has not been settled at Level II, then within forty-
two ( 42) days after receipt of the decision at the previous level or
the expiration of the time limits for making such a decision, the
CF A, upon the request of the grievant, may request arbitration by
giving notice to that effect [to CSU].
In this case, according to section 10.5.c, CFA's appeal to arbitration would have been due on
November 21, 2003. However, Nadeau testified that this is "not a timeline that's been applied
by either party. And we've actually taken cases to arbitration that went through that process
like this one did, like [Wunder's] case did."
Two other witnesses corroborated Nadeau on this point. At about the time of Wunder's
grievance, CFA Director of Representation Ed Purcell testified, there were "quite a number of
cases" where the University either had not issued a Level II response or had not issued a Level
11

II response in a timely manner. He said CF A appealed these cases to arbitration in a manner
that was not in conformance with the contractual time for appeal, and thus the appeals would
be untimely under a strict reading of the terms of the contract. In these cases, however, CSU
either had not raised a timeliness objection or if a timeliness defense was raised before the
arbitrator, it was unsuccessful.
Testimony by Purcell and Nadeau to the effect that failure to appeal Wunder's
grievance to arbitration in strict compliance with section 10.c.5 of the agreement did not create
a timeliness issue was corroborated by Garcia. In her unrebutted testimony, she described
several grievances that were not appealed to arbitration in accord with the timelines set out in
section 10.c.5, and CSU opposed none of them on timeliness issues.4
Other sections in the contract cover timelines during the grievance procedure. Section
10.13 provides:
Wherever a time limit is provided by this Article, the participants
at that level may extend the period by mutual consent in writing ..
. . . It is understood that the purpose of this procedure is to
resolve grievances promptly and that extensions shall be sought
only for good cause.
Nadeau testified that this section applies to Level I of the grievance procedure, where the
parties typically sign a form tolling timelines. With respect to the application of section 10.13,
Purcell testified that "there are occasions when that occurs, and occasions when it doesn't."
Asked if section 10.13 was used to extend the time for appealing Wunder's case to arbitration,
Purcell said there was no need to do so because the appeal was timely due to CSU's failure to
respond to Level II.
Section 10.19 provides:
4 These are the grievances of Ivy Chen, Leilani Grajeda-Higley and Hilary Holz, which
were appealed to arbitration in November 2003.
12

Upon the failure of the Employer or its representatives to provide
a decision within the time limits provided in this Article, the
grievant or CFA, where appropriate, may appeal to the next step.
Upon the failure of the grievant or CFA, where appropriate, to
file an appeal within the time limits provided in this Article, the
grievance shall be deemed to have been resolved by the decision
at the prior step.
Nadeau testified about how this section has been applied historically. Previously, he said, CF A
waited for a response from CSU before moving the case to the next level, but there were so
many late responses from CSU that CFA would not longer insist on a response before
appealing. He said this has happened several times, and in practice if CSU does not respond in
a timely manner, "we can move it to the next level, and that's what we did."
In a November 6, 2003, e-mail to Garcia, Jane Kerlinger, CF A representative
responsible for the Sacramento campus, recommended that Wunder's grievance not be pursued
to arbitration. Her rationale is as follows:
1. Faculty member claims that she should not be required to teach
an introductory accounting class because her overall expertise
and value is greater than colleagues in the department with less
publishing.
2. The course in question is apparently unpopular with the faculty
in the department; no one wants to teach the class on a regular
basis. The course is part of the core curriculum and must be
taught in the department.
3. The faculty member is not claiming that she is not qualified to
teach the course (not outside her discipline or area of expertise).
This grievance is better characterized as a departmental
scheduling conflict between a faculty member, her colleagues,
and her chair; not a contract violation. The claim that someone
shouldn't have to teach a course, because they are "too good" is
neither a contract issue, nor wise for the union to be involved in
internal scheduling disputes. There are no provisions in the
contract that excuses [sic] faculty from teaching a course because
they don't want to (especially when no one else wants to either).5
5 This was not the first time Kerlinger offered an opinion about Wunder's grievance.
She said she had several conversations with Cooper and Nadeau prior to the Level I meeting
13

Kerlinger made the recommendation after reviewing Wunder's grievance file. Among other
things, the file included the grievance record, Wunder's communications with the department
and various supporting documents. Because Wunder felt so strongly about her grievance,
Keringler testified, she (Kerlinger) gave the recommendation more attention than usual.
and stated her opinion that Wunder's claims did not constitute a contract violation. Referring
to Nadeau, Kerlinger also testified that she "got his sense" that he, too, did not view Wunder's
claims as a contract violation.
On November 20, 2003, Wunder inquired about the status of the grievance. Poole
replied the next day that the Level II response was due on October 10, but CSU had not
responded and there was nothing the union could do contractually to compel a response. Poole
explained that CFA had not completed an internal review of the grievance, and the Level II
response is usually part of that review. She said further that it was unlikely the grievance
would be resolved, but the matter would be advanced to arbitration "solely to move the process
forward" in the absence of the Level II response. "This does not indicate that CFA has made a
determination regarding whether nor not to pursue your case to arbitration," Poole wrote.
In another letter to Wunder, dated November 25, 2003, Poole reiterated that CSU had
not submitted a Level II response.
In the absence of that response, today the California Faculty
Association requested arbitration on your behalf. Please see the
attached copy.
Please be advised that your case was submitted to arbitration
solely to adhere to the time limit required for such filing. This
does not necessarily indicate that CF A has made a determination
regarding whether or not to pursue your case to arbitration.
Following this submission, CFA shall make a determination on
the disposition of your case.
Because of the large volume of cases we have received, we have
not yet completed our thorough review of your case. This
process should be completed shortly, however, and we will notify
you immediately of the staff decision, as well as the procedure to
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appeal to the CFA Representation Committee, should the decision
be negative. (Underlining in original.)
Although the November 21 and 25 letters were signed by Poole, they were written for her
signature by Garcia as part of her assignment to track grievances. The first was a direct
response to Wunder and the second was based on a template used by CFA in responding to
employees during the grievance process. Therefore, Garcia said, the language referring to
timelines in the second letter is standard and does not necessarily relate to Wunder's grievance.
In a December 4, 2003, summary of the grievance, Nadeau set out his final
recommendation:
Grievant believes that CBA was violated when she was assigned
a course she hadn't taught in years and claims she wasn't
properly consulted. Dept Chair claims she and two other faculty
were asked to share these assignments. Wunder claims she is too
valuable and too good to be assigned one of these classes in the
spring. In a conversation with me she also told me that she was a
true researcher and should not be assigned such a class - that she
far excelled her colleagues in the professional achievement area
and should not be degraded by this assignment.
I do not see a good or half good contract case here. I agree with
the negative recommendation of Kerlinger and FR chair Cooper
that we NOT take this case to arbitration. It is a sure loser.
(Emphasis in original.)
Nadeau testified that compliance with contractual timelines was not a concern when he made
this recommendation. He said he didn't even think about it, and if the grievance had been
advanced to arbitration it would have gone "easily."
Purcell is the person who reviews grievances to determine if they merit arbitration. He
has worked on a large number of grievances for CFA, and he was the chief negotiator during
negotiations for the contract at issue here. In a December 22, 2003, e-mail to Garcia, Purcell
said CFA decided not to advance Wunder' s grievance to arbitration because it alleged "no
viable violation of the contract."
15

On January 3, 2004, Wunder questioned whether CF A's appeal after Level II was
timely. In a January 6, 2004, letter, Poole responded:
Our filing is timely, because there is no specified time limitation
placed upon CFA should the CSU fail to respond within the
allotted timeframe. We are not outside the filing timelines, nor
did the CSU challenge our filing for timeliness.
In another January 6, 2004, letter, (written by Garcia) Poole informed Wunder that CFA
had decided not to appeal her grievance to arbitration because there was "no viable violation of
the contract." Poole reiterated the right to appeal the decision to the CF A Representation
Committee. Lastly, Poole wrote:
You should understand that because of strict contractual time
limits for the appeal of a case to arbitration, such an appeal to the
CSU was made prior to the staff decision to deny arbitration so as
to accommodate a possible representation appeal.
Garcia testified that the language quoted immediately above, particularly the reference to
"strict contractual time limits," is a template from the CFA office.
In a telephone conversation between Wunder and Poole in early January, 2004, Wunder
testified, she asked Poole why her grievance had not been moved to arbitration. She said Poole
could not give her an answer and commented that "I'm not an expert in your case. Ed Purcell
made the decision not to take the case to arbitration."
Wunder appealed to the CFA Representation Committee in an attempt to overturn
Purcell's decision. 	She argued that CSU' s response to the Level I grievance lacked the degree
of specificity sufficient to effectively deny the grievance, and CSU's failure to respond to the
"well-documented" Level II grievance suggested it had "thrown in the towel." Wunder also
cited several alleged contract violations that stemmed from her assignment.
Wunder alleged that the assignment violated sections 20.1.c and 20.1.d of the collective
bargaining agreement. Cooper testified that faculty members are responsible to be current in
16

their "subject area." Faculty members are hired by departments, Cooper said, and even if they
have a specialty they should be competent to teach introductory courses. For example, Cooper,
teaches in the field of social work and should therefore be able to teach a variety of courses in
that field, including the introductory courses. A professor in the biology department who
specializes in genetics should be able to teach the introductory biology course, and so on. The
same rationale applies to professors in the accounting department, Cooper said. According to
Purcell, the term "subject area" is a general one and has not been defined through litigation. In
his view, there may be many subject areas in a particular department.
Wunder's appeal also alleged that CSU failed to satisfy the consultation requirement in
section 20.2.b. Cooper testified, based on her 29 years as a faculty member at CSU and
numerous discussions with other faculty members in administering the agreement, that the duty
to consult means that the chairperson of the department will meet with the faculty member and
"talk about the schedule." Purcell corroborated Cooper's testimony in this regard, noting that
Wunder's grievance file indicated there had been "rather extensive discussions" with Wunder
about the assignment. He said the department chairperson or appropriate dean is ultimately
responsible for making assignment decisions, and such decisions do not violate the contract
unless they are punitive. Nadeau agreed. He said the term "consultation" "has normally meant
... there was some attempt to communicate with the faculty regarding the needs for this
assignment." 6 In Wunder's case, she had many discussions or communications with the
department chairperson and the associate dean of the college of business administration, but
she argued in her grievance they were not "genuine."
6 Nadeau further testified that disputes about the interpretation of this provision in the
contract have "come up quite a bit" because the budget considerations have caused CSU to hire
fewer lecturers to teach introductory courses.
17

The appeal alleged further that section 20.3.b was violated because the required
adjustment to workload in consideration of her research was ignored in assigning her the
accounting course. 	Cooper testified that, based on her experience, consideration for
adjustment in workload means that the schedule for a faculty member who has a grant and
buys out his or her time will be adjusted. But the practice has not been that a faculty member
is entitled to a particular schedule merely because she is conducting research. An exception to
the rule may occur when the time during which the research must be conducted conflicts with a
particular schedule. It was with this understanding that Cooper wrote the June 3 e-mail
mentioned above indicating that Wunder's grievance was not a contract violation.
Purcell similarly testified that section 20.3.b means a determination of workload is to be
based on the "total picture," taking into account that different faculty members fill different
roles and in making assignments the University must "at least consider the total picture." In
Wunder' s case, Purcell said, the grievance record showed that there had been discussions about
the different elements of her workload and those discussions "constituted consideration." The
result did not produce the assignment that Wunder preferred, Purcell said further, but that did
not mean the assignment violated the contract.
Lastly, Wunder asserted in her appeal that arbitration was foreclosed because CF A had
missed the deadline for appealing to arbitration, and CF A used the claim that there has been no
contract violation as a reason to "cover" its failure to timely appeal to arbitration.
On February 25, 2004, Wunder's appeal was denied. Linda Smith, chairperson of the
CFA Representation Committee, testified that the committee reviewed Wunder's grievance file
and considered whether she was consulted about teaching the accounting course and whether
the course assignment itself was appropriate. In this context, the committee was aware that
Wunder was a faculty member whose specialty was taxation, and that she had been assigned to
18

teach financial accounting. The committee -- consisting of four faculty members, Purcell and
Nadeau -- unanimously decided that Wunder had been consulted by those who arrange
scheduling and that the course was appropriate for her to teach. At no time was the issue of
whether the grievance had been appealed to arbitration in a timely manner discussed by the
committee in reaching its decision.
In denying Wunder's appeal, Smith wrote that the "University met its contractual
obligations, and this decision was made in compliance with CF A representation policy.
Therefore, I must inform you that CFA will not move your case to arbitration."
ISSUE
Did CFA breach its duty of fair representation when it declined to take Wunder's
grievance to arbitration?
CONCLUSIONS OF LAW
Section 3578 defines the duty of fair representation as follows.
The employee organization recognized or certified as the
exclusive representative shall represent all employees in the unit,
fairly and impartially. A breach of this duty shall be deemed to
have occurred if the employee organization's conduct in
representation is arbitrary, discriminatory, or in bad faith.
It is well settled that a union's duty of fair representation extends to grievance handling. (See
e.g., Fremont Unified School District Teachers Association CTA/NEA (King) (1980) PERB
Decision No. 125; American Federation of State, County and Municipal Employees,
International, Council 57 (Dehler) (1996) PERB Decision No. 1152-H (Dehler).) To establish
a breach of the duty of fair representation in a grievance handling context, the charging party
must show that the union's conduct was arbitrary, discriminatory or in bad faith.
In United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258, p. 5
(Collins), the Board stated:
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... Whether a union has met its duty of fair representation in
[grievance processing] depends not upon the merits of the
grievance but rather upon the union's conduct in processing or
failing to process the grievance. 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.]
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.
[Citation.]
In order to state a prima facie case that the duty has been breached, the 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. (Dehler at p. 6;
accord, Rocklin Teachers Professional Association (Romero)
(1980) PERB Decision No. 124.)
The Board has observed, moreover, that "a union's honest, reasonable determination not to
pursue a grievance does not breach the duty of fair representation, regardless of the merits of
the grievance." (Dehler at pp. 6-7, citing California State Employees' Association (Calloway)
(1985) PERB Decision No. 497-H.)
CF A's conclusion that Wunder's grievance lack merit and should not be processed to
arbitration did not run afoul of these standards. Wunder insists that her field is taxation and no
provision of Article 20 suggests that the responsibilities of faculty extend beyond their "field
of expertise." She construes sections 20.1.c and 20.1.d of the agreement as precluding the
assignment at issue here. She argues that "assignment to a course outside of [her] field of
expertise in and of itself is a contractual violation - and a basis for taking the case to
arbitration." CF A's lack of understanding of the agreement, Wunder contends, resulted in a
lack of "fair and unbiased representation."
20

As CFA concluded, however, these provisions did not preclude Wunder's assignment.
In fact, the plain language of section 20.1.c and section 20.1.d merely set forth broad
instructional and professional responsibilities. While they include research, they do not
expressly impose any duty on CSU to make assignments based on an identifiable standard, nor
do they even address assignments.
More relevant to the decision not to advance Wunder' s grievance to arbitration is
section 20.2.b of the agreement. That section provides that instructional assignments "will be
determined" by the appropriate administrator "after consultation" with the faculty member, and
assignments "shall be consistent with department and student needs." This section does not
preclude CSU from assigning Accounting I to Wunder. As Cooper testified, based on some 29
years of experience, section 20.2.b means only that the chairperson or appropriate
administrator must meet with the faculty member and "talk about the schedule." Nadeau
testified that section 20.2.b requires only "some attempt to communicate" with the faculty
member before making an assignment. And Purcell testified that in making the decision not to
proceed to arbitration, CF A was aware of the fact that there had been "rather extensive
discussions" with Wunder about the assignment. He said further that under the agreement the
ultimate assignment decision is left to the appropriate administrator, and assignment decisions
do not violate the agreement unless they are punitive.
Granted, section 20.3.b provides that "consideration" shall be given to many factors,
including research, in the assignment of workload; and "consideration for adjustments" in
workload shall be given for factors such as "research." Like section 20.2.b, however, this
section provides only that certain factors be considered. It contains no mandate which may
reasonably be construed as precluding CSU from assigning Accounting I to Wunder. Cooper
testified that adjustments in workload apply to faculty members who have a grant; that is, a
21

faculty member who has a grant and buys out his or her time is entitled to a workload
adjustment. But under the existing practice, Cooper said, a faculty member is not entitled to a
particular schedule merely because she is conducting research. Purcell similarly testified that a
determination of workload under section 20.3.b is based on the "total picture," and the only
requirement on CSU is to "at least consider the total picture." He said further that Wunder's
grievance file showed that there had been discussions about her workload and those
discussions met the "consideration" requirement in section 20.3.b.
Nor is CF A's rationale that a faculty member may be required to teach a variety of
courses within his or her general subject area unreasonable, even though Wunder may
disagree. As Cooper testified, it is not unreasonable for a faculty member to be required to
teach introductory courses within a department. She is a member of the social work
department and could be required to teach introductory courses, just as a professor whose
expertise is genetics could be required to teach an introductory biology course.
Wunder argues, nevertheless, that Purcell made no effort to obtain information about
the role of research in assignments, and never even discussed the matter with her prior to the
decision not to proceed to arbitration. However, Purcell's conduct in this regard cannot
reasonably be found to breach the duty of fair representation in the context of this record.
Purcell and the other CFA representatives who participated in the decision not to proceed to
arbitration were fully aware of the issues presented by Wunder's grievance, they were familiar
with and applied the relevant contractual provisions, they reviewed the grievance record and
Wunder's lengthy arguments, and they had the recommendations of Kerlinger and Nadeau. A
union does not breach the duty of fair representation by failing to advance every possible
argument or exhaust every avenue of inquiry, provided the grievance is not processed in a
perfunctory manner and the ultimate decision is not arbitrary, discriminatory or in bad faith.
22

Although Wunder disagreed with CF A's decision, CF A's "honest, reasonable determination
not to pursue a grievance [did] not beach the duty of fair representation, regardless of the
merits of the grievance." (Dehler at pp. 6- 7, citing California State Employees Association
Calloway) (1985) PERB decision No. 497-H; United Teachers of Los Angeles (Clark) (1990)
PERB Decision No. 796.)
Wunder next argues that CFA breached the duty of fair representation because Purcell
and the committee relied on a recommendation by Kerlinger, and her (Kerlinger's)
recommendation shows that she did not understand the grievance. This argument is not
convincing. Purcell was fully aware of the issues presented by Wunder' s grievance. He
testified, "I was aware of the fact that you believed that you were not qualified to or
appropriately qualified to teach some of the courses that they were trying to assign to you."
The fact that Purcell's testimony is arguably at odds with a portion of Kerlinger's November 6,
2003, recommendation that Wunder "is not claiming that she is not qualified to teach the
course (not outside her discipline or area of expertise)," does not alter the conclusions reached
above. Wunder's argument is focused on only one part of Kerlinger's November 6, 2003,
recommendation. Even if Kerlinger misstated the issue in part of the recommendation, the
totality of the recommendation shows that Ker linger understood the essence of the issue
presented by the grievance -- whether it was appropriate under the agreement to assign Wunder
an introductory accounting course. In any event, CF A representatives who ultimately decided
not to advance Wunder's grievance to arbitration were aware of the issues presented by the
grievance. Given the lengthy grievance record and Wunder's thorough explication of her
arguments, the claim that CF A misunderstood the grievance is unconvincing.
I find, therefore, that CF A's decision that the grievance lacked sufficient merit to
proceed to arbitration was not arbitrary, discriminatory or in bad faith. 	The decision was
23

rational and based on honest judgment about the meaning of the agreement. Although the
assignment was not one that Wunder preferred, that did not mean that it violated the contract.
Wunder argues further that the decision not to appeal her grievance to arbitration was
not based on the merits. She claims the decision was an attempt to cover up CF A's failure to
appeal in accord with the timelines in the agreement. This argument is also unconvincing.
The final decision of the CF A Representation Committee was not the first time CFA
representatives took the position that Wunder' s grievance lacked merit. In fact, CF A
representatives adopted this view at almost every step of the grievance procedure. In a June 3,
2003, e-mail to Garcia, Cooper wrote that "I also don't think Wunder has a strong case." After
the Level I meeting, Cooper informed Garcia that "Wunder's concerns are not a violation of
the contract, as much as unhappiness with her teaching schedule." In a September 16, 2003,
assessment of the case, Nadeau wrote that "I see no serious contract violation and will not
recommend this case to arbitration." And, in a November 6, 2003, e-mail to Garcia, Kerlinger
wrote that the grievance is a mere scheduling dispute, not a contract violation. All of these
assessments of Wunder's grievance occurred before the November 21, 2003, so-called deadline
to appeal to arbitration and therefore could not possibly have been motivated by a desire to
cover up the alleged failure to appeal in a timely manner.
Other evidence supports the conclusion that the decision not to appeal the grievance to
arbitration was not due to a missed deadline. According to section 10.5 .c, the appeal to
arbitration would have been due on November 21, 2003; CFA appealed on November 25,
2005. Under a strict reading of section 10.5.c, the appeal would have been untimely.
However, Nadeau and Purcell credibly testified that this is not a timeline that has been
followed in practice by either party. Their testimony was corroborated by Garcia, who cited
several specific grievances that were not appealed to arbitration in accord with the section
24

10.5.c timeline. CSU opposed none of them on timeliness grounds. These are the grievances
of Chen, Grajeda-Higley and Holz, which occurred at or about the time of Wunder's grievance.
Because the practice rendered the timeliness issue irrelevant, it was not considered in making
the decision not to proceed to arbitration. As Nadeau testified, if the grievance had been
advanced to arbitration, it would have gone easily.
Wunder argues that a conflict between two letters sent by Poole on January 6, 2003,
supports her claim that CFA missed the deadline to appeal to arbitration. In the first January 6
letter, Poole said there was no specified time limit to appeal to arbitration if CSU failed to
respond after the Level II grievance meeting. In the second letter, Poole said there was a strict
contractual timeline to appeal to arbitration.
I find this consistency does not support the claim that CFA missed the deadline to
appeal. Poole's first letter on January 6 accurately reflected the existing practice with respect
to timelines, as credibly described by Purcell, Nadeau and Garcia. Poole's second letter on the
same date does include a reference to a contractual timeline, but it was drafted by Garcia and is
based on a CF A template. As such, it is a mere form letter that does not take into account the
practice. For this reason, I conclude that any inconsistency between Poole's letters does not
undercut the actual practice itself or CF A's good faith reliance on the practice in processing
Wunder's grievance.
Nor does section 10 .13 of the agreement lead to the conclusion that the appeal to
arbitration was untimely. Granted, CFA and CSU did not agree under section 10.13 to extend
the time to appeal. However, it cannot be concluded on this record that their failure to do so
rendered the appeal untimely. As Nadeau testified, the parties have treated that section as
applicable to Level I of the grievance procedure, and, in any event, Purcell confirmed it has not
been consistently enforced by the parties. More importantly, I find sections 10.13 and 10.19
25

provide little help in determining whether CFA breached the duty of fair representation. It is
the practice under section 10.b.5 of the grievance procedure that is controlling here. CSU has
not insisted on a strict application of section 10.b.5. As both Nadeau and Purcell testified,
under that practice there was no need to comply with sections 10.13 or 10.19 or the 42-day
deadline in section 10.b.5. CF A's good faith reliance on the practice described by Nadeau,
Purcell and Garcia precludes a finding that it breached the duty of fair representation by not
appealing in strict compliance with the contractual timelines. (Ruzika v. General Motors
Corporation (6 th Cir. 1983) 707 F.2d 259 [113 LRRM 2562].)
· Wunder next challenges the internal union procedure under which CFA decided not to
advance her grievance to arbitration. She argues that Purcell's and Nadeau's participation on
the CFA Representation Committee prejudiced her appeal because they had already concluded
at earlier stages of the grievance procedure that her grievance lacked merit.
Any duty of fair representation analysis contemplates a wide range of reasonableness
afforded a union. The analysis generally does not involve close scrutiny of a union's
procedures. (United Teachers of Los Angeles (Valdez) (2001) PERB Decision No. 1453,
adopting proposed decision of administrative law judge (ALJ) at p. 4 7 (Valdez), citing Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) This is
true even if the union "is not kindly disposed" to the grievant." (Valdez at p. 45 of ALJ
proposed decision.) The issue is whether a rational basis exists for a union's decision or
whether that decision "was reached for reasons that were arbitrary or based on invidious
discrimination." (Id. at p. 47 of ALJ decision, citing Sacramento City Teachers Association
(Fanning et al.) (1984) PERB Decision No. 428.)
In this case, the CF A Representation Committee considered the entire grievance record,
input from a number of CFA representatives in addition to Nadeau and Purcell, the facts
26

surrounding the course assignment and the relevant provisions of the contract. It is true that
Nadeau and Purcell had formed their opinions about the grievance at earlier stages of the
procedure, but the evidence does not support a finding that their later participation on the
Faculty Rights Committee was arbitrary or based on invidious discrimination. Wunder has not
established by a preponderance of the evidence that the process used by CFA was outside the
wide range of reasonableness afforded an exclusive representative.
I conclude, therefore, that CFA did not miss the deadline to appeal Wunder's grievance
to arbitration and the timeline issue played no role in the decision not to appeal. The
committee reviewed Wunder' s grievance file, considered whether she had been consulted
about the course assignment and whether the assignment itself was appropriate. The
committee concluded that Wunder had been consulted, the course was appropriate for her to
teach, and the issue of timeliness was not considered.
Lastly, I have noted earlier that allegations in the complaint about CF A's conduct at
early stages of the grievance procedure have been dismissed as time-barred. Therefore, claims
in the complaint that Wunder was told it is not normal or necessary for a grievant to attend a
grievance meeting; that Wunder was not informed of the date of a grievance meeting; or that
Wunder's request to attend a grievance meeting was not communicated to the appropriate CFA
representative are not addressed here as independent violations.
The same can be said about numerous additional allegations which are not included in
the complaint but were advanced by Wunder in her brief as evidence that CFA breached the
duty of fair representation during the processing of the grievance at the lower levels.7 It is
7 These include, for example, that Wunder was given no advice by Cooper at the Level
I meeting; that Cooper told Wunder that CSU typically denies grievances at Level I; that
Cooper hugged Clark-Ellis at the Level I meeting; that Cooper conceded Wunder's grievance
was well argued and well documented; that Kerlinger admitted she was not an expert in
Wunder's grievance; that the person who made the assignment was not an appropriate
27

unnecessary to address these assertions here, even assuming for argument's sake that they
occurred. Mistakes, poor judgment or mere negligence do not breach the duty of fair
representation. (See e.g., Dehler at p. 7, citing American Federation of State, County and
Municipal Employees, Council 10 (Olson) (1998) PERB Decision No. 682-H; Collins at p. 5.)
Nor does such conduct which does not itself foreclose employee rights breach the duty of fair
representation. (Fremont District Teachers Association (2003) PERB Decision No. 1572, pp.
7-8; Coalition of University Employees (2003) PERB Decision No. 1517-H, p. 9.) No conduct
at the lower levels of the grievance procedure foreclosed Wunder's rights; the grievance ended
in February 2004 when the committee decided not to take the grievance to arbitration.
administrator; and that the Level II meeting was conducted by conference call without
Wunder's participation.
Moreover, claims about the manner in which Wunder's grievance was processed at the
lower levels are outside the six-month statute of limitations, they are not part of the complaint,
and they do not detract from the conclusion reached above regarding the only issue presented
in this proceeding: that is, did CFA breach the duty of fair representation owed Wunder when
in February, 2004, it decided not to advance her grievance to arbitration? I conclude that it did
not.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the complaint and underlying unfair practice in Case No. SA-CO-24-H, Haroldene
F. Wunder v. California Faculty Association are hereby dismissed.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
28

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, secs. 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 California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Administrative Law Judge
29