Los Banos Teachers Association (Ulmschneider) (PERB 1922E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CHARLES E. ULMSCHNEIDER,
Charging Party, Case No. SA-CO-529-E
v. PERB Decision No. 1922
LOS BANOS TEACHERS ASSOCIATION, September 11, 2007
Respondent.

Appearances: Charles E. Ulmschneider, on his own behalf; California Teachers Association
by Ballinger G. Kemp, Attorney, for Los Banos Teachers Association.

Before Shek, McKeag and Wesley, Members.
DECISION

SHEK, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Charles E. Ulmschneider (Ulmschneider) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the Los Banos Teachers
Association (LBTA) breached its duty of fair representation under Educational Employment
Relations Act (EERA)' section 3544,9” and thereby violated EERA section 3543.6(b) by
failing to prevent the Los Banos Unified School District from violating the collective

bargaining agreement and by declining to advance Ulmschneider’s grievance to level three.

'RERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

*The unfair practice charge alleges violations under the following sections of EERA,
none of which apply to a claim by an employee against an employee organization:
Section 3543.5 (unlawful acts of public school employer); Section 3543.6(c) (failure of
employee organization to meet and negotiate in good faith); Section 3543.7 (duty to meet and
negotiate in good faith); Section 3543.8 (employee organization’s standing to sue); and
Section 3543.2(a) and (b) (scope of representation). We construe this charge as alleging a
breach of the duty of fair representation under EERA section 3544.9,

The Board has reviewed the entire record in this case, including
but
not limited to the
unfair practice charge, LBTA's position statement, the amended unfair practice charge, the
warning and dismissal letters, Ulmschneider's appeal
of
the dismissal and LBTA's response.
Based upon this review, the Board affirms and adopts the Board agent's warning and dismissal
letters as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SA-C0-529-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT k1£LATIONS BOARD
F
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
F
March 13, 2007
Charles
E.
Ulmschneider
3102
W.
Flagstaff Ave
Visalia, CA 93291
Re: 	Charles E Ulmschneider
v.
Los Banos Teachers Association
Unfair Practice Charge No. SA-CO-529-E
DISMISSAL LETTER
Dear Mr. Ulmschneider:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 16, 2007. Charles Ulmschneider alleges that the Los
Banos Teachers Association (LBTA or Association) violated the Educational Employment
Relations Act (EERA)1 by violating
its:
duty
of
fair representation.
I indicated to you in my attached letter dated February 21, 2007, 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 March
5,
2007, the charge would be
dismissed. 	I granted your request to extend that deadline and you filed a First Amended
Charge.
The Los Banos School District required Ulmschneider to participate in the Peer Assistance
Review program for several years. The Warning Letter indicated that although Ulmschneider
believes his participation in the PAR program is unnecessary, the charge did not demonstrate
that the Association's refusal to pursue his grievance on that issue was a decision made in an
arbitrary, discriminatory, or bad faith manner. Instead it appeared that the Association
rationally determined not to pursue Ulmschneider's grievance to arbitration because the
collective bargaining agreement allows the District to keep employees in the PAR program for
more than one year. The Warning Letter concluded that the charge must be dismissed.
My review of the First Amended Charge revealed the following information.
The First Amended Charge indicates that the leaders of the PAR program are LBTA members,
including the LBTA President.
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.

SA-CO-529-E
March 13, 2007
Page 2
On January 30, 2007, Association Representative James Orr attended a meeting with
Ulmschneider, Principal Dan Martin, and teacher Brett Lee. During the meeting Martin issued
Ulmschneider a reprimand. Ulmschneider wanted a different representative to attend the
meeting, but the District refused his request. During the meeting Ulmschneider complained
that reading the reprimand to him constituted harassment. 	Martin asked Orr whether he agreed
with Ulmschneider's characterization. Orr indicated that Martin was not harassing
Ulmschneider.
On February 13, 2007, Director
of
Human Resources Shanna Spiva read Ulmschneider another
reprimand. The District denied Ulmschneider' s request for a specific Association
representative, but Orr attended the meeting. 	Orr did not object to the accusations or
statements. Following the meeting, Orr told Ulmschneider words to the effect of, "Charles,
man, those are some serious charges."
On February 26, 2007, the District met with Uhnschneider to present him with another
reprimand. 	After Ulmschneider complained to Orr about how the District officials read the
reprimands to him, Orr requested that the reprimand not be read out loud. The District official
agreed to simply present Ulmschneider with the document rather than reading it to him.
Orr mentioned to Ulmschneider that he had heard that the District had offered him a full year
of
paid administrative leave
if
he agreed to resign. 	Ulmschneider asked how Orr knew about
that offer. Ulmschneider had not told Orr about the District's offer.
On March
1,
2007, PAR teacher Dave Waller and teacher Brett Lee entered Ulmschneider' s
classroom and observed his class. Lee left at the end of the class period, but Waller
approached Ulmschneider to share his notes. Ulmschneider requested that he be allowed to
read what Waller wrote. Waller asked, "so we are not going to discuss anything?"
Ulmschneider indicated he would rather just read the comments.
The First Amended Charge also provides, in pertinent part:
I sincerely feel that some
of
the cooperation the LBTA has had
with the district's aggressiveness has come from my decision to
be a candidate for our NEA Representative Assembly and a past
political campaign I had for our LBTA presidency.
The above-stated information fails to state a prima facie violation for the reasons that follow.
District's conduct
Although this charge is filed against the Association, the First Amended Charge includes
information regarding the District's conduct. For example, the charge indicates that the
District denied Ulmschneider's requests for a representative of his choice. Allegations
regarding the District's conduct must be dismissed as the Association is not responsible for the
District's conduct. Thus, these allegations must be dismissed.

SA-CO-529-E
March 13, 2007
Page 3
PAR Program
The original charge alleged the Association violated its duty
of
fair representation by refusing
to advance Ulmschneider' s grievance regarding the PAR program. The First Amended Charge
did not correct the deficiencies noted in the Warning Letter. 	The amended charge did not
provide facts demonstrating that the Association's refusal to pursue Ulmschneider's grievance
to arbitration was arbitrary, discriminatory or made in a bad faith manner. Nor does the charge
provide facts indicating that the Association member's participation in the PAR Program
violates the Association's duty
of
fair representation. Thus, this allegation must be dismissed.
Reprimand Meetings
The First Amended Charge provides facts indicating that Orr represented Ulmschneider in
several meetings with District representatives. 	During these meetings, Ulmschneider received
reprimands. Ulmschneider felt humiliated by the District's reading
of
the reprimands
especially as they were read in front
of
his peers. 	Orr attended the meetings in question and
the facts suggest that he provided Ulmschneider rational advice. For example, when
Ulmschneider tried to leave the January 30, 2007 meeting, in direct conflict with the
principal's directive, Orr advised Ulmschneider to stay. 	Orr listened to Ulmschneider's
complaint that the reading
of
the reprimands was causing him psychological harm and told
Martin that Ulmschneider did not need the reprimand read aloud to him. The charge does not
provide any facts demonstrating a connection between Ulmschneider' s NEA candidacy or his
political campaign and the Association's participation in the PAR Program. (See United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision 944.) 	The PAR Program is a part
of
the parties' negotiated agreement. Thus, the charge does not provide facts indicating that the
Association acted in an arbitrary, discriminatory or bad faith manner. As such, this allegation
must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
together with a Facsimile Transmission Cover Sheet which meets the requirements of
Regulation 3213 5( d), provided the filing party also places the original, together with the
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-529-E
March 13, 2007
Page 4
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
(916) 322-8231
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also 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
ofeach other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)

SA-CO-529-E
March 13, 2007
Page 5
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
By~~
Tam~sel
Regional Attorney
Attachment
cc: 	Balinger Kemp

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
F
February 21, 2007
Charles
E.
Ulmschneider
3102
W.
Flagstaff Ave
Visalia, CA 93291
Re: 	Charles E Ulmschneider
v.
Los Banos Teachers Association
Unfair Practice Charge No. SA-CO-529-E
WARNING LETTER
Dear Mr. Ulmschneider:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 16, 2007. 1 Charles Ulmschneider alleges that the Los
Banos Teachers Association (Association) violated the Educational Employment Relations Act
(EERA)2 by denying his request to advance his grievance to Level III. My investigation
revealed the following information.
---
On November 14, 2006, Ulmschneider, a foreign language teacher, filed a grievance alleging
his employer, the Los Banos Unified School District (District), violated the collective
bargaining agreement between the District and the Association by misusing the Peer
Assistance and Review (PAR) program. When the District denied Ulmschneider' s grievance at
Level I, Ulmschneider raised his grievance
to
Level II. 	When the District denied
Ulmschneider's grievance at Level II, Ulmschneider requested that the Association appeal the
grievance to Level III. 	On January
8,
2007, Ulmschneider attended the Association's
Representative Council regarding his grievance. The Council voted 22 to 2, against taking the
grievance to arbitration.
The collective bargaining agreement between the District and Association indicates that an
employee in the PAR program shall be evaluated until the employee receives a satisfactory
evaluation or leaves District employment.
On February 14, 2007, I spoke with Ulmschneider and discussed his attempt to obtain a
restraining order from the superior court to enjoin the principal from entering his classroom.
Ulmschneider indicated the District was going to try to terminate his employment and that he
needed help. I explained that his charge was filed against his exclusive representative and that
allegations of conduct by the employer would not be addressed therein. Ulmschneider
1 Although the Charging Party's proof of service indicates that both the charge and
attachments had been served on the Respondent, the Respondent's representative called PERB
to obtain the attachments to the charge.
2 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.

SA-CO-529-E
February 21, 2007
Page 2
indicated he would send me additional information regarding the PAR program and the
District's actions. I indicated that only documents regarding the Association's conduct would
be relevant to this charge and that any documents that he wanted me to review must be served
on the Respondent. 	On February 16, 2007, I received additional documents. 	They did not
include a proof
of
service indicating that they had been served on the Respondent. As such,
they are not a part
of
the official file and were not considered in the investigation
of
this
charge.3 (See Los Angeles Unified School District (2003) PERB Decision No. 1552.)
On February 20, 2007, Ulmschneider c.alled to confirm that I had received the additional
documents that he had sent. I confirmed receipt
of
these documents and again told him that I
needed a proof
of
service indicating that the documents were served on the Respondent in
order to consider the information provided.
The above-stated information does not state a prima facie violation for the reasons that follow.
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).
The duty
of
fair representation imposed on the exclusive representative extends to grievance
handling. 	(Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation
of
this section
of
EERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. In United Teachers
of
Los Angeles
(Collins), the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance
if
the chances for success are minimal.
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a Charging Party:
"
...
must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
Although filing in pro per, Ulmschneider is familiar with PERB' s process as he filed
SA-CO-498-E on October 27, 2004, SA-CE-2280-E on December 6, 2004, SA-CE-2343-E on
February 23, 2006.

SA-CO-529-E
February 21, 2007
Page 3
[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 does not provide facts indicating that the Association's refusal to appeal
Ulmschneider's grievance to Level III was a decision made in an arbitrary, discriminatory or
bad faith manner. The charge must present facts demonstrating the "who, what, when, where,
and how"
of
an unfair practice. (United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision 944.) Mere legal conclusions are insufficient. 	(See State
of
California (Department
of
Food and Agriculture (1994) PERB Decision No. 1071-S.)
The facts indicate that the District has been requiring Ulmschneider to participate in the PAR
program for several years. 	Although Ulmschneider believes his participation in the
PARprogram is unnecessary, the charge does not demonstrate that the Association's refusal to
pursue his grievance on that issue was a decision made
in
an arbitrary, discriminatory, or bad
faith manner. Instead it appears that the Association rationally determined notto pursue
Ulmschneider' s grievance to arbitration because the collective bargaining agreement allows the
District to keep employees in the PAR program for more than one year. 	Thus, the 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 March 5, 2007, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney
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