California School Employees Association and its Chapter 410 (Payne) (PERB 2029E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LORENIA PAYNE,
Charging Party, 	Case No. LA-CO-1351-E
V . 	PERB Decision No. 2029
CALIFORNIA SCHOOL EMPLOYEES 	May 27, 2009
ASSOCIATION & ITS CHAPTER 410,
Respondent.
Appearances: Lorenia Payne, on her own behalf; Charmaine L. Huntting, Staff Attorney, for
California School Employees Association & its Chapter 410.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Lorenia Payne (Payne) to a Board agent's dismissal (attached) of her
unfair practice charge. Payne alleged that the California School Employees Association & its
Chapter 410 (CSEA) violated the Educational Employment Relations Act (EERA) by
breaching its duty of fair representation when it failed to file a grievance over Payne working
outside her classification.
The Board reviewed the entire record including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letters, Payne's appeal," and CSEA's response
to the appeal. The Board finds the warning and dismissal letters well reasoned and a correct
EERA is codified at Government Code section 3540 et seq.
2 Payne's request for oral argument is denied.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LORENIA PAYNE,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 410,
Respondent.
Case No. LA-CO-1351-E
PERB Decision No. 2029
May 27, 2009
Appearances: Lorenia Payne, on her own behalf; Charmaine L. Huntting, Staff Attorney, for
California School Employees Association & its Chapter 410.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUW ALD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Lorenia Payne (Payne) to a Board agent's dismissal (attached) of her
unfair practice charge. Payne alleged that the California School Employees Association & its
Chapter 410 (CSEA) violated the Educational Employment Relations Act (EERA)1 by
breaching its duty of fair representation when it failed to file a grievance over Payne working
outside her classification.
The Board reviewed the entire record including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letters, Payne's appeal,2 and CSEA's response
to the appeal. The Board finds the warning and dismissal letters well reasoned and a correct
1 EERA is codified at Government Code section 3540 et seq.
2 Payne's request for oral argument is denied.

statement of the law. The Board thereby adopts the warning and dismissal letters as the
decision
of
the Board itself.	decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1351-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Dowdin Calvillo joined in this Decision.
N
statement
of
the law. The Board thereby adopts the warning and dismissal letters
as
the
2
ORDER
The unfair practice charge in Case No. LA-CO-1351-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blud., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
PERB 	Fax: (213) 736-4901
October 2, 2008
Lorenia Payne, Health Clerk Tech.
Moreno Valley Unified School District
Re: 	Lorenia Payne v. California School Employees Association & its Chapter 410
Unfair Practice Charge No. LA-CO-1351-E
DISMISSAL LETTER
Dear Ms. Payne:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 16, 2008. Lorenia Payne (Payne or Charging Party) alleges
that the California School Employees Association & its Chapter 410 (Union or Respondent)
violated section 3543.6 of the Educational Employment Relations Act (EERA or Act)' by
breaching the duty of fair representation.
Charging Party was informed in the attached Warning Letter dated September 19, 2008, that
the above-referenced charge did not state a prima facie case. She was advised that, if there
were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, she should amend the charge. Payne was further advised that, unless she
amended the charge to state a prima facie case or withdrew it prior to September 29, 2008, the
charge would be dismissed. On that date, she filed an amended charge.
Payne alleges that the Union breached the duty of fair representation by failing to file a
grievance over Payne's performing work outside her classification. Payne provides a detailed
account of her communications with her employer, the Moreno Valley Unified School District
District), and the Union regarding her efforts to be reclassified, with back pay, from a Health
Clerk Technician to a Health Clerk Technician-Bilingual. Payne includes conversations with
Union representatives that suggested those representatives were unfamiliar with the grievance
process and disfavored having job classifications that required the use of bilingual skills.
Payne also alleges that, on January 23, 2008, the District and the Union issued a joint statement
informing Payne that there was no classification that performed job duties Payne alleged to
have performed and that the Union and the District would negotiate to create a new
classification for her. On March 19, 2008, the District informed Payne that she was being
reclassified to a new classification, a Health Clerk Technician-Bilingual, with increased salary,
retroactive to November 28, 2007. Payne stated that she had been performing bilingual duties
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.
STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
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PUBLIC EMPLOYMENT RELATIONS BOARD
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Fax: (213) 736-4901
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October 2, 2008
Lorenia Payne, Health Clerk Tech.
Moreno Valley Unified School District
24260 Hwy. 74
Perris,
CA
92570
Re: 	Lorenia Payne
v. California School Employees Association & its Chapter 410
Unfair Practice Charge No. LA-CO-1351-E
DISMISSAL LETTER
Dear Ms. Payne:
The
above-referenced unfair practice charge was filed with the Public Employment
Relations
Board (PERB or Board) on July 16, 2008. Lorenia Payne (Payne or Charging Party)
alleges
that the California School Employees Association & its Chapter 410 (Union or
Respondent)
violated section 3543.6
of
the Educational Employment Relations Act (EERA or Act) 1
by
breaching the duty
of
fair representation.
Charging Party was informed in
t.1-ie
attached Warning Letter dated September 19,
2008, that
the above-referenced charge did not state a prima facie case. She was advised that,
if
there
were any factual inaccuracies or additional facts that would correct the deficiencies
explained
in that letter, she should amend the charge. Payne was further advised that, unless she
amended the charge to state a prima facie case or withdrew it prior to September 29,
2008,
the
charge would be dismissed. On that date, she filed an amended charge.
Payne alleges that the Union breached the duty
of
fair representation by failing to file a
grievance over Payne's performing work outside her classification. Payne provides a
detailed
account
of
her communications with her employer, the Moreno Valley Unified School District
(District), and the Union regarding her efforts to be reclassified, with back pay, from a
Health
Clerk Technician to a Health Clerk Technician-Bilingual. Payne includes conversations with
Union representatives that suggested those representatives were unfamiliar with the
grievance
process and disfavored having job classifications that required the use
of
bilingual skills.
Payne also alleges that, on January 23, 2008, the District and the Union issued a joint statement
informing Payne that there was no classification that performed job duties Payne alleged to
have performed and that the Union and the District would negotiate to create a new
classification for her. 	On March 19, 2008, the District informed Payne that she was
being
reclassified to a new classification, a Health Clerk Technician-Bilingual, with increased salary,
retroactive to November 28, 2007. Payne stated that she had been performing bilingual duties
1
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1351-E
October 3, 2008
Page 2
prior to November 28, 2007, but did not have any paperwork or other evidence to prove this
claim.
Payne was informed in the September 19, 2008 Warning Letter that PERB Regulation
32615(a)(5) requires, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The Charging
Party's burden includes PERB Regulation 32615(a)(5) requires, inter alia, that an unfair
practice charge include a "clear and concise statement of the facts and conduct alleged to
constitute an unfair practice." The charging party's burden also includes alleging facts
showing that the unfair practice charge was timely filed; i.e., that the alleged unfair practice
occurred no more than six months prior to the filing of the charge. (Los Angeles Unified
School District (2007) PERB Decision No. 1929.) PERB is prohibited 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. (Coachella Valley Mosquito and Vector
Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.) 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.)
In this case, the charge was filed on July 16, 2008. This means that the statutory period
extends back until January 16, 2008. Any allegations of wrongdoing by the Union occurring
prior to January 16, 2008, are therefore untimely. In the amended charge, Payne makes several
allegations that the Union failed to take appropriate action regarding her working outside her
classification at times prior to January 16, 2008. To the extent that Payne alleges the Union
breached its duty of fair representation by actions taken prior to January 16, 2008, Payne does
not establish that these allegations were timely filed and the allegations must therefore be
dismissed.
Payne appears to allege that, although the Union was able to negotiate the creation of a new
classification with higher salary for Payne, the Union should have also filed a grievance to
have her salary increased retroactively to a date prior to November 28, 2007. As stated in the
September 19, 2008 Warning Letter, the duty of fair representation does extend to grievance
handling, but Payne must show that the Union's actions or inactions regarding a grievance
were arbitrary, discriminatory, or in bad faith. (See Los Banos Teachers Association
(Ulmschneider) (2007) PERB Decision No. 1922.) A union is not required to process a
grievance where it believes that "the chances for success are minimal." (United Teachers of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In addition, a union is not required to
pursue a grievance that it reasonably believes is unmeritorious or can be resolved outside the
grievance process. (College of the Canyons Faculty Association (Lynn) (2004) PERB
Decision No. 1706.)
Payne does not provide information to establish that the Union's decision not to file a
grievance on this issue was arbitrary, discriminatory, or made in bad faith. (See Los Banos
Teachers Association (Ulmschneider) (2007) PERB Decision No. 1922.) As noted above, the
Union negotiated the creation of a new classification for Payne with a higher salary retroactive
LA-CO-1351-E
October 3, 2008
Page 2
prior to November 28, 2007, but did not have any paperwork or other evidence to prove this
claim.
Payne was informed in the September 19, 2008 Warning Letter that PERB Regulation
32615(a)(5) requires, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The Charging
Party's burden includes PERB Regulation 32615(a)(5) requires, inter alia, that an unfair
practice charge include a "clear and concise statement of the facts and conduct alleged to
constitute an unfair practice." The charging party's burden also includes alleging facts
showing that the unfair practice charge was timely filed; i.e., that the alleged unfair practice
occurred no more than six months prior to the filing of the charge. (Los Angeles Unified
School District (2007) PERB Decision No. 1929.) PERB
is
prohibited 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. (Coachella Valley Mosquito and Vector
Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.) 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.)
In this case, the charge was filed on July 16, 2008. This means that the statutory period
extends back until January 16, 2008. Any allegations of wrongdoing by the Union occurring
prior to January 16, 2008, are therefore untimely.
	In
the amended charge, Payne makes several
allegations that the Union failed to take appropriate action regarding her working outside her
classification at times prior to January 16, 2008. To the extent that Payne alleges the
Union
breached its duty of fair representation by actions taken prior to January 16, 2008, Payne does
not establish that these allegations were timely filed and the allegations must therefore
bedismissed.
Payne appears to allege that, although the Union was able to negotiate the creation of a
new
classification with higher salary for Payne, the Union should have also filed a grievance to
have her salary increased retroactively to a date prior to November 28, 2007. As stated in the
September 19, 2008 Warning Letter, the duty of fair representation does extend to grievance
handling, but Payne must show that the Union's actions or inactions regarding a grievance
were arbitrary, discriminatory, or in bad faith. 	(See Los Banos Teachers Association
(Ulmschneider) (2007) PERB Decision No. 1922.) A union is not required to process a
grievance where it believes that "the chances for success are minimal." (United Teachers of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In addition, a union is not required to
pursue a grievance that it reasonably believes
is
unmeritorious or can be resolved outside the
grievance process. (College of the Canyons Faculty Association (Lynn) (2004) PERB
Decision No. 1706.)
Payne does not provide information to establish that the Union's decision not to file a
grievance on this issue was arbitrary, discriminatory, or made in bad faith. 	(See Los Banos
Teachers Association (Ulmschneider) (2007) PERB Decision No. 1922.) As noted above, the
Union negotiated the creation of a new classification for Payne with a higher salary retroactive

LA-CO-1351-E
October 3, 2008
Page 3
several months. In addition Payne admitted that she did not have evidence supporting her
claims of performing bilingual work prior to November 28, 2007. Based on this information,
the Union may have reasonably believed that a grievance would have been unsuccessful and
that negotiating with the District would achieve a more favorable result. Accordingly, Payne
does not establish that the Union breached the duty of fair representation by not filing a
grievance.
For these reasons, Payne does not establish that the Union breached its duty of fair
representation by not filing a grievance over Payne working outside her classification.
Accordingly, this allegation is dismissed.
In the original charge, Payne alleged that the Union violated the Higher Education Employer-
Employee Relations Act (HEERA) and the Ralph C. Dills Act (Dills Act). Payne was
informed in the September 19, 2008 Warning Letter that these allegations did not state a prima
facie case because she did not establish either that she was a higher education employee or an
employee of the State. Payne did not provide any additional information regarding these
allegations. Accordingly, the allegations are dismissed for the reasons discussed in the
September 19, 2008 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations," Charging Party 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. (Cal. Code Regs, tit. 8, sec. 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.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 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 PERB 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. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CO-1351-E
October 3, 2008
Page 3
several months. In addition Payne admitted that she did not have evidence supporting
her
claims of performing bilingual work prior to November 28, 2007. Based on this information,
the Union may have reasonably believed that a grievance would have been unsuccessful and
that negotiating with the District would achieve a more favorable result. Accordingly,
Payne
does not establish that the Union breached the duty of fair representation by not filing a
grievance.
For these reasons, Payne does not establish that the Union breached its duty of fair
representation by not filing a grievance over Payne working outside her classification.
Accordingly, this allegation
is
dismissed.
In the original charge, Payne alleged that the Union violated the Higher Education Employer-
Employee Relations Act (HEERA) and the Ralph
C.
Dills Act (Dills Act). Payne was
informed in the September 19, 2008 Warning Letter that these allegations did not state a prima
facie case because she did not establish either that she was a higher education employee or an
employee
of
the State. Payne did not provide any additional information regarding these
allegations. Accordingly, the allegations are dismissed for the reasons discussed in the
September 19, 2008 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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. 	(Cal. Code Regs, tit.
8,
sec. 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.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 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 PERB 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. (Cal. Code Regs, tit. 8,
secs, 32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 9 5 811-4124
(916) 322-8231
2 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1351-E
October 3, 2008
Page 4
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. (Cal. Code Regs, tit. 8, sec. 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 Cal. Code Regs., tit. 8, sec. 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.
(Cal. Code Regs, tit. 8, sec. 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. (Cal. Code Regs, tit. 8, sec. 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,
TAMI R. BOGERT
General Counsel
Eric
Regional A
Attachment
cc: Charmaine Huntting
LA-CO-1351-E
October 3, 2008
Page 4
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. (Cal. Code Regs, tit.
8,
sec. 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 Cal. Code Regs., tit.
8,
sec. 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.
(Cal. Code Regs, tit.
8,
sec. 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. (Cal. Code Regs, tit.
8,
sec. 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,
TAMI R. BOGERT
General Counsel
By--~~
i
By
EricJ. Cue
Regi nal Attorney	ttorney
Attachment
cc: Charmaine Huntting

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
September 19, 2008
Lorenia Payne, Health Clerk Tech.
Re: 	Lorenia Payne v. California School Employees Association & its Chapter 410
Unfair Practice Charge No. LA-CO-1351-E
WARNING LETTER
Dear Ms. Payne:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 16, 2008. Lorenia Payne (Payne or Charging Party) alleges
that the California School Employees Association & its Chapter 410 (Union or Respondent )
violated section 3543.6 of the Educational Employment Relations Act (EERA or Act)' by
breaching the duty of fair representation. Payne also alleges that the Union violated the Higher
Education Employer-Employee Relations Act (HEERA) and the Ralph C. Dills Act (Dills
Act).
Payne is employed at the Moreno Valley Unified School District (District) as a Health Clerk
Technician. The Union is the exclusive representative of the classified bargaining unit at the
In May 2007, Payne informed Union representative Gary Snyder that she had been working
outside her designated job classification since 2005. Payne stated her belief that she should
receive bilingual pay. Payne then stated that she discussed the matter with Union President
Lequice Juckes, but that Juckes had not assisted her. Snyder suggested that Payne contact her
supervisor and request additional compensation. Snyder also stated that he would speak with
Juckes.
On July 30, 2007, Payne requested that the District provide her with additional compensation
for performing bilingual duties. On September 12, 2007, Payne attended a meeting over this
issue with Juckes and a District representative. The Union and the District discussed Payne's
additional duties on other occasions as well. The Union declined to file a grievance under the
CBA.
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.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
September 19, 2008
Lorenia Payne, Health Clerk Tech.
24260 Hwy. 74
Perris, CA 92570
ARNOLD SCHWARZENEGGER, Governor
Re: 	Lorenia Payne v. California School Employees Association & its Chapter 410
Unfair Practice Charge No. LA-CO-1351-E
WARNING LETTER
Dear Ms. Payne:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 16, 2008. Lorenia Payne (Payne or Charging Party) alleges
that the California School Employees Association & its Chapter 410 (Union or Respondent)
violated section 3543.6 of the Educational Employment Relations Act (EERA or Act) 1 by
breaching the duty of fair representation. Payne also alleges that the Union violated the Higher
Education Employer-Employee Relations Act (HEERA) and the Ralph C. Dills Act (Dills
Act).
Payne is employed at the Moreno Valley Unified School District (District) as a Health Clerk
Technician. The Union is the exclusive representative of the classified bargaining unit at the
District, which includes the Health Clerk Technician classification. The Union and the District
are parties to a Collective Bargaining Agreement (CBA) that contains a grievance procedure
culminating in binding arbitration.	culminating in binding arbitration.
·
In May 2007, Payne informed Union representative Gary Snyder that she had been working
outside her designated job classification since 2005. Payne stated her belief that she should
receive bilingual pay. Payne then stated that she discussed the matter with Union President
Lequice Juckes, but that Juckes had not assisted her. Snyder suggested that Payne contact her
supervisor and request additional compensation. Snyder also stated that he would speak with
Juckes.
On July 30, 2007, Payne requested that the District provide her with additional compensation
for performing bilingual duties. On September 12, 2007, Payne attended a meeting over this
issue with Juckes and a District representative. The Union and the District discussed Payne's
additional duties on other occasions as well. The Union declined to file a grievance under the
CBA.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1351-E
September 19, 2008
Page 2
At a time not specified by the parties, Payne received additional compensation from the
District for working outside of her classification. Payne was also moved up one range in the
salary scale and reclassified as a Bilingual Health Technician.
Discussion:
Payne alleges that the Union denied her 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.) However, unions generally have discretion regarding how far to
pursue grievances and other complaints from unit members. (See California Teachers
Association and Oakland Education Association (Welch) (2006) PERB Decision No. 1850;
Public Employees Union 1 (2005) PERB Decision No. 1780-M; College of the Canyons
Faculty Association (Lynn) (2004) PERB Decision No. 1706.) Therefore, in order to state a
prima facie violation of this section of EERA, Payne must show that the Union's conduct was
arbitrary, discriminatory or in bad faith. (Los Banos Teachers Association (Ulmschneider)
(2007) PERB Decision No. 1922.) 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
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,
citing Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.)
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
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At a time not specified by the parties, Payne received additional compensation from the
District for working outside of her classification. Payne was also moved up one range in the
salary scale and reclassified as a Bilingual Health Technician.
Discussion:
Payne alleges that the Union denied her 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.) However, unions generally have discretion regarding how far to
pursue grievances and other complaints from unit members. (See California Teachers
Association and Oakland Education Association (Welch) (2006) PERB Decision No. 1850;
Public Employees Union 1 (2005) PERB Decision No. 1780-M; College of the Canyons
Faculty Association (Lynn) (2004) PERB Decision No. 1706.) Therefore, in order to state a
prima facie violation of this section of EERA, Payne must show that the Union's conduct was
arbitrary, discriminatory or in bad faith. 	(Los Banos Teachers Association (Ulmschneider)
(2007) PERB Decision No. 1922.) 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 fartoto
pursue a grievance in the employee's behalf as long as it does not	pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance	arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process	in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.	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,
citing Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.)
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial

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September 19, 2008
Page 3
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1274; see also, Robesky v. Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
The Board has determined that a union is not required to pursue grievances where it reasonably
believes either that the grievance is unmeritorious or that the issue can be resolved outside the
grievance process. (College of the Canyons Faculty Association (Lynn) (2004) PERB
Decision No. 1706; International Association of Firefighters Local 55 (Wagia) (2004) PERB
Decision No. 1621-M.) A disagreement over how far to pursue a grievance is not, in itself,
sufficient to establish a breach of the duty of fair representation. (SEIU Local 1000. CSEA
(Burnett) (2007) PERB Decision No. 1914-S.)
Moreover, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
In the present case, Payne alleges that the Union should have filed a grievance over her
performing work outside her classification. However, there is insufficient information to
conclude that the Union's decision to meet with the District instead of filing a grievance was
arbitrary, discriminatory, or made in bad faith. (See Los Banos Teachers Association
(Ulmschneider) (2007) PERB Decision No. 1922.) In addition, Payne was ultimately
reclassified to reflect her additional job duties and moved higher on the salary scale. This
further suggests that it was reasonable for the Union to address Payne's concerns in the manner
that it did. Accordingly, Payne does not establish that the Union breached its duty of fair
representation.
In addition to alleging a violation of the EERA, Payne also alleges that the Union violated
HEERA and the Dills Act.
HEERA concerns the relationship between higher education employers, higher education
employees, and employee organizations that are composed of higher education employees. A
higher education employee is defined by HEERA as "any employee of the Regents of the
University of California, the Directors of the Hastings College of Law, or the Trustees of the
California State University." (HEERA, $ 3562(e).)
The Dills Act concerns the relationship between the state, employees of the state, and
employee organizations that are composed of state employees. A state employee is defined by
the Dills Act as, with certain exclusions, "any civil service employee of the state, and the
teaching staff of schools under the jurisdiction of the Department of Education or the
Superintendent of Public Instruction[.]"
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September 19, 2008
Page 3
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1274; see also, Robesky v. Ouantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
The Board has determined that a union is not required to pursue grievances where it reasonably
believes either that the grievance is unmeritorious or that the issue can be resolved outside the
grievance process. (College of the Canyons Faculty Association (Lynn) (2004) PERB
Decision No. 1706; International Association of Firefighters Local 55 (Waqia) (2004) PERB
Decision No. 1621-M.) A disagreement over how far to pursue a grievance is not, in itself,
sufficient to establish a breach of the duty of fair representation. (SEIU Local 1000, CSEA
(Burnett) (2007) PERB Decision No. 1914-S.)
Moreover, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how" of an unfair practice. (State of California (Department of Food and Aizriculture) ( 1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
In the present case, Payne alleges that the Union should have filed a grievance over her
performing work outside her classification. However, there is insufficient information to
conclude that the Union's decision to meet with the District instead of filing a grievance was
arbitrary, discriminatory, or made in bad faith. 	(See Los Banos Teachers Association
(Ulmschneider) (2007) PERB Decision No. 1922.) In addition, Payne was ultimately
reclassified to reflect her additional job duties and moved higher on the salary scale. This
further suggests that it was reasonable for the Union to address Payne's concerns in the manner
that it did. 	Accordingly, Payne does not establish that the Union breached its duty of fair
representation.
In addition to alleging a violation of the EERA, Payne also alleges that the Union violated
HEERA and the Dills Act.
HEERA concerns the relationship between higher education employers, higher education
employees, and employee organizations that are composed of higher education employees. 	A
higher education employee is defined by HEERA as "any employee of the Regents of the
University of California, the Directors of the Hastings College of Law, or the Trustees of the
California State University." (HEERA, § 3562(e).)
The Dills Act concerns the relationship between the state, employees of the state, and
employee organizations that are composed of state employees. A state employee is defined by
the Dills Act as, with certain exclusions, "any civil service employee of the state, and the
teaching staff of schools under the jurisdiction of the Department of Education or the
Superintendent of Public Instruction[.]"

LA-CO-1351-E
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Page 4
Payne does not establish that she is either a higher education employee as defined by HEERA
or an employee of the state as defined by the Dills Act. Payne also does not establish that the
Union is composed of either of higher education employees or state employees. Instead Payne
alleges that she is an employee of the District, a public school, which is governed by EERA.
Accordingly, the allegations that the Union violated HEERA or the Dills Act do not state a
prima facie case. (See California School Employees Association & its Chapter 374 (Wyman)
(2007) PERB Decision No. 1903 (dismissing allegations that a union violated HEERA, the
Dills Act, and the Myers-Milias-Brown Act, where the charging party was employed by a
school district).)
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, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before September 29, 2008,
PERB will dismiss your charge. If there are any questions, please contact the undersigned at
the above telephone number.
Sincerely,
Erie's. the
Regional Attorney
EC
LA-CO-1351-E
September 19, 2008
Page 4
Payne does not establish that she is either a higher education employee as defined by HEERA
or an employee of the state as defined by the Dills Act. Payne also does not establish that the
Union is composed of either of higher education employees or state employees. 	Instead Payne
alleges that she is an employee of the District, a public school, which is governed by EERA.
Accordingly, the allegations that the Union violated HEERA or the Dills Act do not state a
prima facie case. (See California School Employees Association & its Chapter 374 (Wyman)
(2007) PERB Decision No. 1903 (dismissing allegations that a union violated HEERA, the
Dills Act, and the Myers-Milias-Brown Act, where the charging party was employed by a
school district).)
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, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before September 29, 2008,
PERB will dismiss your charge. If there are any questions, please contact the undersigned at
the above telephone number.
Sincerely,
;]~~~onal Attorney
EC