Baldwin Park Education Association (Hayek, et al.) (PERB 2223E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARITZA HAYEK, ET AL.,
Charging Parties, Case No. LA-CO-1438-E

Vv. PERB Decision No. 2223

BALDWIN PARK EDUCATION ASSOCIATION, November 30, 2011

Respondent.

Appearance: Maritza Hayek, on her own behalf.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Maritza Hayek (Hayek) of a Board agent’s dismissal (attached)
of Hayek’s unfair practice charge. The charge alleged that the Baldwin Park Education
Association (BPEA) violated the Educational Employment Relations Act (EERA)' by failing
to enforce contract terms relating to the salary schedule and the Health Benefits Committee
and by failing to negotiate a more favorable fringe benefits package. The charge alleged that
this conduct constituted a violation of EERA section 3543.6.” The Board agent dismissed the

charge for failure to state a prima facie breach of the duty of fair representation.

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

* EERA section 3543.6(b) provides that:
It shall be unlawful for an employee organization to:

(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or

We have reviewed the entire record in this matter. Based on this review and applying
the relevant law, the Board finds the Board agent’s warning and dismissal letters to be well-
reasoned, adequately supported by the record and in accordance with the applicable law.
Accordingly, the Board adopts the warning and dismissal letters as the decision of the Board
itself, supplemented by the brief discussion below.
DISCUSSION
The appeal raises two issues worth brief mention. First, Hayek supports her argument
that BPEA acted in a discriminatory manner by referring generally to a state law that prohibits
discrimination by unions on the basis of marital status or age. Hayek quotes this state law in
full in her amended charge without citing to its source. The state law upon which Hayek relies
is section 12940, which enumerates unlawful employment practices. This law is administered
and enforced by the Department of Fair Employment and Housing. PERB has no jurisdiction
over such matters. PERB’s jurisdiction under EERA section 3543.6, subdivision (b) is limited,
in pertinent part, to discrimination that occurs not because of an employee’s age or marital
status but because of an employee’s exercise of rights under the collective bargaining statute.
The appeal also contains factual allegations and documents that were not presented to
the Board agent. PERB Regulation 32635(b)3 provides: “Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence.”
(Los Banos Unified School District (2009) PERB Decision No. 2063 [new evidence on appeal
not considered where charging party was aware of such evidence prior to filing the charge and
there was no demonstration of good cause].) The purpose of this regulation
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

is to require the charging party to present its allegations and
supporting evidence to the Board agent in the first instance, so
that the Board agent can fully investigate the charge prior to
deciding whether to issue a complaint or dismiss the case.
{South San Francisco Unified School District (1990) PERB Decision No. 830.)
Hayek states that it was her understanding that she would provide her additional
information to the Board when her case was heard. The Board agent’s warning letter,
however, advised Hayek that the charge did not state a prima facie case and invited her to
amend the charge and provide additional facts to correct any factual inaccuracies in the
warning letter. If Hayek had additional information, it was incumbent on her to provide it to
the Board agent at the charge processing stage, as stated in the warning letter, so that the Board
agent could have fully investigated the charge before deciding whether to issue a complaint or
dismiss the case. As Hayek has not shown good cause for presenting on appeal her new
allegations and supporting evidence, they are not considered here.
Moreover, even were we to consider Hayek’s new allegations and supporting evidence,
we would not alter our conclusion that Hayek has not met her burden of establishing a prima
facie breach of the duty of fair representation. Hayek included in the appeal a comparison of
composite rate and tiered rate costs for bargaining unit members who are single, which
demonstrates that members who are single pay more under a composite rate than they would
under a tiered rate. Hayek also included statements from seven members describing the
financial hardship they have experienced since implementation of the current health benefits
design. In addition, Hayek included the following exhibits: a chart showing a percentage
breakdown of the membership into singles, couples and families; member health benefit
surveys; documentation regarding employer contributions, insurance rates and premium costs;
and e-mails from members documenting financial hardship.
3

Hayek’s new allegations and supporting evidence do not aid Hayek in establishing a
prima facie breach of the duty of fair representation. Hayek is correct that none of the Board
decisions cited in the dismissal letter involve the precise issue of whether a union breaches its
duty of fair representation when it negotiates for a composite rate based health care design that
places a disproportionate burden on members who are single. While the facts of the prior
decisions may vary, the basic principles do not. As the Board agent explained, a union’s duty
of fair representation requires it to refrain from representing its members “arbitrarily,
discriminatorily, or in bad faith.” (.Rocklin Teachers Professional Association (Romero)
(1980) PERB Decision No. 124; Redland Teachers Association (Faeth and McCarty) (1978)
PERB Decision No. 72.) Although the duty of fair representation includes a union’s
negotiating conduct, as a general rule, an exclusive representative enjoys a wide range of
bargaining latitude. As the United States Supreme Court stated in Ford Motor Co. v. Huffman
(1953) 345 U.S. 330, 338 (FordMotor):
Inevitably differences arise in the manner and degree to which the
terms of any negotiated agreement affect individual employees
and classes of employees. The mere existence of such
differences does not make them invalid. The complete
satisfaction of all who are represented is hardly to be expected. A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in the
exercise of its discretion.
The mere fact that an agreement reached by an employee organization has an
unfavorable effect on some members is not sufficient to demonstrate a violation. (California
School Employees Association (Chacon) (1995) PERB Decision No. 1108.) The question is
whether the employee organization exercised its discretion in good faith and with honesty of
purpose. (FordMotor at p. 338.) Here, the factual allegations do not establish that BPEA
acted otherwise.
4

ORDER
The unfair practice charge in Case No. LA-CO-1438-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
5

S T A T E O F C A L I F O R N I A E D M U N D G. B R O W N JR ., G ov e rn or
PUBLIC EMPLOYMENT RELATIONS BOARD
p u eu c
Los Ange les R egi on al O ff ice
700 N, Central Ave., Suite 20 0
Gle ndale, CA 9 1 2 0 3 - 3 2 1 9
T elepho ne: (8 18) 5 5 1 -2 8 0 4
Fax: (818) 551-2 8 2 0
January 19, 2011
M aritza Hayek
15443 M idcrest Drive
W hittier, CA 90604
Re: M aritza Hayek et al. v. Baldwin P ark Education Association
Unfair Practice Charge No. LA-CO -1438-E
D ISM ISSA L L E T T E R
D ear Ms. Hayek:
The above-referenced unfair practice charge was filed with the Public Em ploym ent R elations
Board (PERB or Board) on June 21, 2010 by M aritza Hayek (Hayek). On June 28, 2010,
Hayek amended the unfair practice charge to include A uretta Ruth A lexander, Rodolpho
Figueroa, Gerald H onadle, Annette Licata, Polly M ahurin, Cariann S. N agam ine, A ndrew
Persad, Lynn Reck, and Grace Scura as Charging Parties to the case. On July 15, 2010, th e
charge was again am ended to add N orm a M. Castro, Virginia Lizette Escobar, and T am m y
Smith as Charging Parties to the case. All o f the signatories to the unfair practice charge w ill
be referred to collectively as “Charging P arties.” Charging Parties allege that the B aldw in
Park Education A ssociation (Union or Respondent) violated section 3543.6(b) o f the
Educational Em ploym ent Relations Act (EERA or A ct)1 by breaching the duty o f fair
representation.
Charging Party was inform ed in the attached W arning Letter dated January 3, 2011, that th e
above-referenced charge did not state a prim a facie case. You were advised that, if there w ere
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should am end the charge. You were further advised that, unless you am ended the
charge to state a prim a facie case or w ithdrew it prior to January 12, 2011, the charge w o u ld be
dism issed. On January 11, 2011, you filed an am ended charge.
In the January 3, 2011 W arning Letter, Charging Parties were inform ed that they did not
establish that the U nion breached the duty o f fair representation by failing to enforce the term s
o f the May 12, 2006 Tentative Agreement. Charging Parties have not included any m ore
inform ation regarding this allegation in the am ended charge. Therefore, PERB will consider
1 EERA is codified at Governm ent Code section 3540 et seq. PERB R egulations are
codified at California Code o f Regulations, title 8, section 31001 et seq. The text o f the E E R A
and PERB Regulations may be found at w w w .perb.ca.gov.

LA-CO-1438-E
January 19, 2011
Page 2
this allegation to be withdrawn by the Charging Parties and the allegation will not be addressed
further in this letter.2
The thrust o f Charging Parties’ claim against the U nion is that the Union negotiated a health
benefits package with the Baldwin Park Unified School District (D istrict) that adversely
affected unit members that were either unmarried or over 40 years-old. As explained in the
January 3, 2011 W arning Letter, the duty o f fair representation extends to a union’s negotiating
conduct, (Service Employees International Union Local 250 (Stewart) (2004) PERB D ecision
No. 1610-M.) However, unions are afforded a w ide range o f discretion in bargaining conduct
and unions are not expected to satisfy the interests o f all members, (I b id C a lifo r n ia School
Em ployees Association and its Chapter 107 (Chacon) (1995) PERB D ecision No. 1108.)
Accordingly, PERB has found no breach o f the duty o f fair representation (i.e., that a union did
not engage in arbitrary, discrim inatory, or bad faith conduct) simply because a negotiated
agreem ent adversely affects som e mem bers or because some members are not satisfied w ith
the term s o f that agreement. (Service Employees International Union L ocal 250 (Stewart),
supra, PERB Decision No. 1610-M; Los Rios College Federation o f Teachers, C FT/A FT
(Violett, et al.) (1991) PERB D ecision No. 889.)
In this case, Charging Parties continue to allege that the Union breached the duty o f fair
representation by failing to negotiate a favorable benefits package. C harging Parties allege
than unmarried unit members are required to pay prem ium s for their health benefits that are
higher than the actual insurance costs while unit m em bers with families pay low er prem ium s.
However, as explained in the January 3, 2011 W arning Letter, Charging Parties do not allege
how any of them were affected, positively or negatively, by this agreement. The am ended
charge does not include the m arital status or age o f any o f the Charging Parties. Thus, th ere is
insufficient inform ation to conclude that the Union breached the duty to represent C harging
Parties fairly and equally.
M oreover, as explained above, the m ere fact that C harging Parties are not satisfied w ith the
health benefits agreem ent is not sufficient to dem onstrate arbitrary, discrim inatory, or bad faith
conduct. (Service Employees International Union L ocal 250 (Stewart), supra, PERB D ecision
No. 1610-M; Los Rios College Federation o f Teachers, CFT/AFT (Violett, et a l), supra, PERB
D ecision No. 889.) A charging party must, at a m inim um , dem onstrate that “the exclusive
representative’s action or inaction was w ithout a rational basis or devoid o f honest ju d g m en t.”
R eed D istrict Teachers Association, CTA/NEA (Reyes) ( 1983) PERB D ecision No. 332,
quoting Rocklin Teachers P rofessional Association (Romero) (1980) PERB D ecision N o. 124.)
2 To the extent that Charging Parties did not intent to withdraw this allegation, it is
dism issed for the reasons specified in the January 3, 2011 Warning Letter.
3 To the extent that Charging Parties are alleging a violation on b eh alf o f em ployees
that are not named as parties to this unfair practice charge, Charging Parties lack standing to do
so. (IB E W L ocal 1245 (Tacke) (2006) PERB D ecision No. 1857-M [“an em ployee has no
standing to challenge a violation o f another em ployee’s rights”].)

LA-CO-1438-E
January 19, 2011
Page 3
Charging Parties allege that the negotiated health benefits package adversely affects
approxim ately 28 percent o f the bargaining unit. H owever, this is not sufficient to dem onstrate
a breach o f the duty o f fair representation. Other than this alleged disparate im pact, C harging
Parties have not provided facts establishing that the U nion’s conduct was “w ithout a rational
basis or was devoid o f honest judgm ent.” (Reed D istrict Teachers Association, CTA/NEA
(Reyes), supra, PERB D ecision No. 332, quoting Rocklin Teachers Professional A ssociation
(Romero), supra, PERB D ecision No. 124.)4
Right to Appeal
Pursuant to PERB R egulations,5 Charging Party may obtain a review o f this dism issal o f the
charge by filing an appeal to the Board itself w ithin twenty (20) calendar days after service o f
this dism issal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any docum ent filed w ith the B oard
m ust contain the case name and number, and the original and five (5) copies o f all docum ents
m ust be provided to the Board.
A docum ent is considered “filed” when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A docum ent is also considered “filed” when received by facsim ile transm ission before the
close o f business together with a Facsim ile Transm ission Cover Sheet which meets the
requirem ents o f PERB Regulation 32135(d), provided the filing party also places the original,
together w ith the required num ber o f copies and p ro o f o f service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The B oard’s address is:
Charging Parties also appear to contend that the U nion breached the duty o f fair
representation by agreeing with the D istrict to use “Interest Based Problem Solving,” to
negotiate the health benefits agreement, but then failing to do so. However, Charging Parties
do not dem onstrate that the U nion has failed to use “ Interest Based Problem Solving” in its
negotiations with the District. As explained in the January 3, 2011 W arning Letter, m ere
conclusory statem ents are not sufficient to dem onstrate a violation. {United Teachers-
Los Angeles (Ragsdale) (1992) PERB D ecision No. 944.) In addition, as already explained
above, C harging Parties have not established that the U n io n ’s negotiating conduct breached the
duty o f fair representation.
5 PERB Regulations are codified at C alifornia Code o f Regulations, title 8, section
31001 et seq.

LA-CO-1438-E
January 19, 2011
Page 4
Public Em ploym ent R elations Board
Attention: Appeals A ssistant
1031 18th Street
Sacram ento, CA 95811-4124
(916)322-8231
FAX: (916) 327-7960
If you file a tim ely appeal o f the refusal to issue a com plaint, any other party may file w ith the
Board an original and five copies o f a statem ent in opposition within tw enty (20) calendar days
following the date o f service o f the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
Service
All docum ents authorized to be filed herein must also be “served” upon all parties to the
proceeding, and a “proof o f service” m ust accompany each copy o f a docum ent served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The docum ent will be considered properly “ served” when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A docum ent
may also be concurrently served via facsim ile transm ission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension o f Time
A request for an extension o f tim e, in w hich to file a docum ent w ith the Board itself, m ust be
in writing and filed with the Board at the previously noted address. A request for an extension
m ust be filed at least three (3) calendar days before the expiration o f the tim e required for
filing the docum ent. The request m ust indicate good cause for and, if know n, the position o f
each other party regarding the extension, and shall be accom panied by p roof o f service o f the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

LA-CO-1438-E
January 19, 2011
Page 5
Final Date
If no appeal is filed within the specified time limits, the dism issal will becom e final w hen the
tim e limits have expired.
Sincerely,
WEND I L. ROSS
Interim General Counsel
Regional Atf<5rney
A ttachm ent
cc: Robert E. Lindquist

S T A T E O F C A L I F O R N I A E D M U N D G. B R O W N J R ., G o v e r n o r
PUBLIC EMPLOYMENT RELATIONS BOARD
Los A ngeles R egion al O ffice
70 0 N. Central Ave., Suite 200
G lend ale, C A 9 1 2 0 3 -3 2 1 9
Tele phone: (8 18 ) 551-2 804
F a x : ( 8 1 8 ) 5 5 1 -2 820 '
January 3, 2011
M aritza Hayek
Re: M aritza H ayek et al. v. Baldwin P ark Education Association
Unfair Practice Charge No. LA -CO -1438-E
W A R N IN G L E T T E R .
Dear Ms. Hayek:
The above-referenced unfair practice charge was filed with the Public E m ploym ent R elations
Board (PERB or Board) on June 21, 2010 by M aritza Hayek (Hayek). O n June 28, 2010,
Hayek amended the unfair practice charge to include Auretta Ruth A lexander, R odolpho
Figueroa, Gerald Honadle, A nnette Licata, Polly M ahurin, Cariann S. N agam ine, A ndrew
Persad, Lynn Reck, and Grace Scura as Charging Parties to the case. On July 15, 2010, the
charge was again am ended to add N orm a M. Castro, Virginia Lizette Escobar, and T am m y
Smith as Charging Parties to the case. All o f the signatories to the unfair practice charge w ill
be referred to collectively as “Charging Parties.” Charging Parties allege that the B aldw in
Park Education A ssociation (Union or Respondent) violated section 3543.6(b) o f the
Educational Em ploym ent Relations A ct (EERA or A ct)1 by breaching the duty o f fair
representation.
Charging Parties are em ployed at the B aldw in Park U nified School D istrict (D istrict) as
certificated teachers. The U nion is the exclusive representative o f the certificated bargaining
unit at the District. The U nion and the D istrict are parties to a Collective Bargaining
A greem ent (CBA) that is in effect from July 1, 2008 through June 30, 2011. The CBA
provides for the establishm ent o f a Fringe Benefits Committee (FBC) to serve in an advisory
capacity on issues relating to em ployee benefits. The Union has two representatives on the
FBC as do other bargaining units at the District.
Charging Parties draw attention to the following language of the CBA, pertaining to the FBC:
The A ssociation shall have two m em bers on the fringe benefit
com mittee, which will m eet on an ongoing basis throughout the
year. The benefit package selection shall be determ ined using
Interest Based Problem Solving.
1 EERA is codified at G overnm ent Code section 3540 et seq. PERB R egulations are
codified at California Code o f Regulations, title 8, section 31001 et seq. The text o f the EER A
and PERB Regulations may be found at w w w .perb.ca.gov.

LA-CO-1438-E
January 3, 2011
Page 2
On M ay 12, 2006, the Union and the D istrict reached a Tentative A greem ent (TA) on issues
relating to unit m ember benefits. Under the TA, unit m em bers no longer received cash b ack as
part o f the D istrict’s benefits package and the D istrict w ould move to a com posite rate
insurance plan. In addition, em ployees contributed funds to a trust for the purpose o f
m anaging healthcare costs and the salary scale for unit m em bers would increase so that level
“E l 2” will be twice the am ount that o f level “A l . ” On or around June 1, 2006, the m em bers
ratified the TA via a ratification vote. However, unit m em bers at the E12 level o f the salary
schedule did not receive twice the com pensation o f unit members in level A l o f the salary
schedule.
A ccording to the Union, on June 7, 2007 the Union and the District reached another TA on,
am ong other issues, a four percent increase to the certificated em ployees’ salary schedule.
Again, according to the Union, the Union and the D istrict entered into a new CBA effective
July 1,2008.
D iscussion: .
Charging Parties allege that the Union denied Charging Parties the right to fair representation
guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b). The duty o f fair
representation imposed on the exclusive representative extends to grievance handling.
(.Fremont Teachers Association (King) (1980) PERB D ecision No, 125; U nited Teachers o f
Los A ngeles (Collins) (1982) PERB D ecision No. 258.) In order to state a prim a facie
violation o f this section o f EERA, Charging Party m ust show that the R espondent’s conduct
was arbitrary, discrim inatory or in bad faith. In U nited Teachers o f Los A ngeles (Collins), the
Public Em ploym ent Relations Board stated:
A bsent bad faith, discrim ination, or arbitrary conduct, mere
negligence or poor judgm ent in handling a grievance does not
constitute a breach o f the unio n ’s duty. [Citations omitted.]
A union may exercise its discretion to determ ine how far to
pursue a grievance in the em ployee’s behalf as long as it does not
arbitrarily ignore a m eritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an em ployee’s grievance if the chances for success are m inim al.
In order to state a prim a facie case o f arbitrary conduct violating the duty o f fair representation,
a Charging Party:
must at a minimum include an assertion o f sufficient facts from
which it becomes apparent how or in what m anner the exclusive
representative’s action or inaction was without a rational basis or
devoid o f honest judgm ent.

LA-CO-1438-E
January 3, 2011
Page 3
(R eed D istrict Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No, 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB D ecision N o. 124;
em phasis in original.)
W ith regard to when “mere negligence” might constitute arbitrary conduct, the Board observed
in Coalition o f University Em ployees (Buxton) (2003) PERB D ecision No. 1517-H that, u n d er
federal precedent, a union’s negligence breaches the duty o f fair representation “ in cases in
w hich the individual interest at stake is strong and the union’s failure to perform a m inisterial
act com pletely extinguishes the em ployee’s right to pursue his claim .” (Quoting D u trisa c v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v.
Q uantas Empire Airways Lim ited (9th Cir. 1978) 573 F.2d 1082.)
1, Failure to Enforce the May 12, 2006 Tentative A greem ent
In the present case, Charging Parties allege that the U nion fails to enforce the M ay 12, 2 0 0 6
TA. Charging Parties allege that level E l 2 o f the salary schedule was not tw ice the am o u n t o f
level A l o f the salary schedule. PERB Regulation 32615(a)(5) requires, inter alia, that an
unfair practice charge include a “clear and concise statem ent o f the facts and conduct alleged
to constitute an unfair practice,” The Charging P arties’ burden includes alleging the “w ho,
what, when, where and how ” o f an unfair practice. (State o f California (D epartm ent o f F o o d
and Agriculture) (1994) PERB Decision No. 1071-S, citing United Teachers-Los A n g eles
(Ragsdale) (1992) PERB Decision No, 944.) M ere legal conclusions are not sufficient to state
a prim a facie case. (Ibid.; Charter Oak Unified School D istrict (1991) PERB D ecision N o .
873.)
The Charging Parties’ burden also includes alleging facts showing that the unfair practice
charge was tim ely filed; i.e., that the alleged unfair practice occurred no m ore than six m onths
prior to the filing o f the charge. (Los Angeles U nified School D istrict (2007) PERB D ecisio n
No. 1929; City o f Santa Barbara (2004) PERB D ecision No. 1628-M.) PERB is pro h ib ited
from issuing a com plaint w ith respect to any charge based upon an alleged unfair practice
occurring m ore than six months prior to the filing o f the charge. (Coachella Valley M osquito
and Vector Control District v. Public Em ploym ent Relations Board (2005) 35 C al.4th 1072.)
The limitations period begins to run once the charging party knows, or should have k n o w n , o f
the conduct underlying the charge. (Gavilan Joint C om m unity College D istrict (1996) P E R B
D ecision No, 1177.)
In this case, Charging Parties filed the original unfair practice charge on June 21, 2010. This
m eans that the statutory lim itations period extends back until Decem ber 21, 2009. Any
allegations o f wrongdoing by the Union occurring prior to Decem ber 21, 2009 are th erefo re
untim ely unless an exception to the statute o f lim itations applies. To the extent that C harging
Parties allege that the Union failed to enforce the term s o f the M ay 12, 2006 TA at tim es prior
to Decem ber 21, 2009, Charging Parties do not establish that these allegations are tim ely filed.
To the extent that Charging Parties allege that the U nion failed to enforce the term s o f th e May

12, 2006 TA at times within the statutory lim itations period, there is insufficient in fo rm atio n to
dem onstrate a violation for the reasons that follow .2
Charging Parties do not provide sufficient inform ation regarding the current salary schedule to
determine w hether a violation occurred. The Union included in its position statem ent co p ies o f
a later TA dated June 7, 2007 as well as excerpts o f the successor CBA, effective July 1, 2008.
Each o f these docum ents contains different salary term s from what was agreed to in the M ay
12, 2006 TA and appear to, by their terms, supersede the May 12, 2006 TA. Thus, C harging
Parties do not establish that, at any point within the statute o f lim itations period, the U nion was
obligated to enforce the term s o f the May 12, 2006 TA .3
Even if the Union was obligated to enforce the term s o f the M ay 12, 2006 TA, C harging
Parties do not allege that any Charging Party requested that the U nion enforce this agreem ent.
For example, Charging Parties do not allege that any o f them requested that the Union p u rsu e a
grievance or other contract-enforcem ent mechanism on their behalf. In California State
Employees Association (Sandberg) (2004) PERB D ecision No. 1694-S, the Board found no
breach o f the duty o f fair representation where the charging party did not provide sufficient
details about the m anner in which he requested assistance from the union. The Board reasoned
that, without inform ation pertaining to the charging party’s request, the Board could not
determine w hether the unio n ’s actions were arbitrary, discrim inatory, or made in bad faith.
(Ibid.) Similarly in this case, Charging Parties do not dem onstrate that the Union w as aw are
that Charging Parties sought enforcem ent o f the M ay 12, 2006 TA. Thus, PERB is unable to
conclude that the U nion’s conduct was arbitrary, discrim inatory, or made in bad faith. (S ee
Ib id )
LA-CO-1438-E
January 3, 2011
Page 4
~~~ 2 Therefore, Charging Parties do not establish that any exception to the statute o f
limitations period is present. A ccording to the continuing violation doctrine, “a violation
within the statute o f lim itations period may ‘revive’ an earlier violation o f the same type that
occurred outside o f the lim itations period.” (Trustees o f the California State University
(Kyrias) (2009) PERB D ecision No. 2038-H; Compton C om m unity College D istrict (1991)
PERB D ecision No. 915.) The violation within the statute o f lim itations period m ust, how ever,
constitute an independent violation without reference to the earlier violations. (Trustees o f the
California State University (Kyrias), supra, PERB D ecision No. 2038-H, citing N orth O range
County Community College D istrict (1999) PERB D ecision No. 1342.) In this case, because
Charging Parties have not dem onstrated the existence o f an independent, sim ilar violation
occurring w ithin the statute o f lim itationsperiod, the exception does not apply.
3 Charging Parties have not yet filed a reply to the U n io n ’s position statement. T o the
extent that Charging Parties dispute the existence o f the term s o f either the June 7, 2007 T A or
the July 1, 2008 successor CBA, Charging Parties should consider am ending the charge to
include the factual basis for its dispute. (Service Em ployees International Union #790 (Adza)
(2004) PERB D ecision No. 1632-M [Board agent may rely on undisputed facts provided by a
respondent].)

2. Failure to Enforce Provisions o f the CBA Relating to the Fringe Benefits C om m ittee
Charging Parties also allege that the Union failed to enforce provisions o f the CBA relating to
the FBC. Charging Parties cite to the following language o f the CBA:
The A ssociation shall have two m em bers on the fringe benefit
committee, w hich will meet on an ongoing basis throughout the
year. The benefit package selection shall be determ ined using
Interest Based Problem Solving.
It is not immediately clear which portions o f this language Charging Parties contend is at issue
in this case. Charging Parties include the minutes o f multiple FBC m eetings. In the m inutes,
the FBC appears to have m et on a regular basis with two Union representatives present each
meeting. Thus, while not entirely clear, it appears as though Charging Parties contend th a t the
U nion has failed to enforce the portion o f this language pertaining to having the com m ittee
select a benefits package using the Interest Based Problem Solving process. A ssum ing th a t
this is the nature o f Charging P arties’ allegations against the Union, there is insufficient
inform ation to find a breach o f the duty o f fair representation.
As explained above, Charging Parties bear the burden o f providing a “ clear and concise
statem ent o f facts” supporting its claims. (PERB Regulation 32615(a)(5).) Charging Parties
m ust demonstrate how the U nion’s “action or inaction was w ithout a rational basis or devoid
o f honest judgm ent.” (Reed D istrict Teachers Association, CTA/NEA (Reyes), supra, PE R B
D ecision No. 332.) In this case, Charging Parties do not provide any facts supporting its
conclusion that the Union has failed to enforce this provision o f the CBA, M oreover, a review
o f the m inutes does not reveal that the U nion’s actions on the FBC are “w ithout a rational basis
or devoid o f honest reason.” (Ibid.) As explained above, mere legal conclusions are not
sufficient to dem onstrate a violation. (U nited Teachers-Los Angeles (Ragsdale), supra, PE R B
D ecision No. 944.)
3. Failure to N egotiate a Favorable Benefits Package
Charging Parties also allege that the Union breached the duty o f fair representation negotiating
a benefits structure w ithout perform ing adequate research. A lthough the duty o f fair
representation includes a unio n ’s negotiating conduct, as a general rule, an exclusive
representative enjoys a wide range o f bargaining latitude. (Service Em ployees International
Union Local 250 (Stewart) (2004) PERB Decision No. 1610-M (Stew art).)' As the U nited
States Supreme Court stated in F ord M otor Co. v. H uffm an (1953) 345 U.S. 330, 338:
Inevitably differences arise in the m anner and degree to w hich the
term s o f any negotiated agreement affect individual em ployees
and classes o f em ployees. The mere existence o f such
differences does not make them invalid. The com plete
satisfaction o f all who are represented is hardly to be expected. A
LA-CO-1438-E
January 3, 2011
Page 5

wide range o f reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to good faith and honesty o f purpose in the exercise o f its
discretion.
A cknow ledging the need for such discretion, PERB determ ined that an exclusive
representative is not expected or required to satisfy all m em bers o f the unit it represents.
(C alifornia School Employees A ssociation (Chacon) (1995) PERB D ecision No. 1108;
Stew art, supra, PERB Decision No. 1610-M.) M oreover, the duty o f fair representation does
not m ean an employee organization is barred from m aking an agreem ent which may have an
unfavorable effect on some m em bers, nor is an employee organization obligated to bargain a
particular item benefiting certain unit m em bers. (Ibid. ; Los Rios College Federation o f
Teachers (Violett) (1991) PERB D ecision No. 889.) The m ere fact that a charging party w as
not satisfied with the agreem ent is insufficient to dem onstrate a prim a facie violation. (Los
Rios College Federation o f Teachers (Violett), supra, PERB D ecision No. 889; Stewart, supra,
PERB Decision No. 1610-M.) In addition, the decision not to go to the im passe process is
w ithin a union’s bargaining discretion. (Redland Teachers Association (Faeth and M cC arty)
(1978) PERB Decision No. 72.) Even poor judgm ent during negotiations is not sufficient to
breach the duty o f fair representation. (California School Em ployees A ssociation and its
Chapter 107 (Chacon), supra, PERB D ecision No. 1108.)
In this case, Charging Parties do not allege that the negotiated benefits plan adversely affects
any o f them. Even if this were the case, the mere fact that an agreem ent has an unfavorable
effect on some members is not sufficient to dem onstrate a violation. (C alifornia School
Em ployees Association (Chacon), supra, PERB D ecision No. 1108; Stew art, supra, PERB
D ecision No. 1610-M.) Charging Parties do not provide facts dem onstrating that the U n io n ’s
conduct was arbitrary, discrim inatory, or made in bad faith. (U nited Teachers o f Los A ngeles
(C ollins), supra, PERB D ecision No, 2 58.) Therefore, Charging Parties do not dem onstrate
that the Union breached the duty o f fair representation.
For these reasons the charge, as presently w ritten, does not state a prim a facie case.4 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Parties may am end the charge. The am ended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First A m ended
C harge, contain all the facts and allegations you w ish to make, and be signed under penalty o f
perjury by an authorized agent o f Charging Parties. The am ended charge m ust have the case
LA-CO-1438-E
January 3, 2011
Page 6 ‘
4 In Eastside Union School D istrict (1984) PERB D ecision No. 466, the Board
explained that a prim a facie case is established where the Board agent is able to make “a
determ ination that the facts as alleged in the charge state a legal cause o f action and that the
charging party is capable o f providing adm issible evidence in support o f the allegations.
Consequently, where the investigation results in receipt o f conflicting allegations o f fact or
contrary theories of law, fair proceedings, if not due process, dem and that a com plaint be
issued and the matter be sent to form al hearing.” (Ibid.)

num ber w ritten on the top right hand corner o f the charge form. The am ended charge m ust be
served on the Respondent’s representative and the original p roof o f service m ust be filed w ith
PERB. If an amended charge or w ithdraw al is not filed on or before January 12, 2 0 1 1,5 PE R B
will dism iss your charge. If you have any questions, please call me at the above telephone
number.
S incerdy,
LA-CO-1438-E
January 3, 2011
Page 7
fencT/Cu
Regional Attorney
EC
5 A docum ent is “filed” on the date the docum ent is actually received by PERB,
including if transm itted via facsim ile. (PERB Regulation 32135.)