Fillmore Unified Teachers Association (Hood) (PERB 2274E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RICHARD HOOD,
Charging Party, Case No. LA-CO-1499-E
Vv. PERB Decision No. 2274
FILLMORE UNIFIED TEACHERS June 22, 2012
ASSOCIATION,
Respondent.

Appearances: Richard Hood, on his own behalf; California Teachers Association by Brenda E.
Sutton- Wills, Attorney, for Fillmore Unified Teachers Association.

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Richard Hood (Hood) of the PERB Office of the General
Counsel’s dismissal (attached) of his unfair practice charge. The charge, as amended, alleged
that the Fillmore Unified Teachers Association (Association) violated section 3543(a) of the
Educational Employment Relations Act (EERA)' by denying him an equal right to participate
in a contract ratification vote. The Board agent found that most of the allegations were
untimely and that the charge failed to state a prima facie case of interference with protected
employee rights or violation of the duty of fair representation.

The Board has reviewed the dismissal and the record in light of Hood’s appeal and

the relevant law. Based on this review, we find the dismissal and warning letters to be

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

well-reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the dismissal and warning letters as the decision
of
the Board
itself, supplemented by the discussion below.
DISCUSSION
Arguments on Appeal
In his appeal, Hood appears to be attempting to address the Board agent's determination
that the charge failed to allege facts showing that the Association's actions had a "substantial
impact" on his relationship with his employer, the Fillmore Unified School District (District),
in that the changes to the contract with respect to employee transfer and seniority rights "so
severely altered the relationship
of
teachers to the District, that created the conditions which
gave the District cover to treat me unfairly." We find that this issue was adequately addressed
by the Board agent and requires no further discussion here. (California School Employees
Association and its Chapter I 07 (Chacon) (1995) PERB Decision No. 1108; Los Rios College
Federation
of
Teachers, CFT/AFT (Violett, et al.) (1991) PERB Decision No. 889 [the duty
of
fair representation does not mean that an employee organization is barred from making an
agreement that may have an unfavorable effect on some members or that benefits some
members more than others.].)
New Evidence and Allegations on Appeal
his appeal, Hood presents new factual allegations
in the original charge or the amended charge. "Unless good cause is shown, a charging party
not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b);2 see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.) 	Board has found good cause when "the information provided could
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

not have been obtained through reasonable diligence prior to the Board agent's dismissal
of
the
charge." (Sacramento City Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
On December 22, 2011, the Board agent issued a letter advising Hood that the charge
failed to state a prima facie case and warning him that the charge would be dismissed unless he
· amended the charge to state a prima facie case. Hood filed an amended charge on January 12,
2012. On April 13, 2012, the Board agent dismissed the charge. Hood filed an appeal from the
dismissal on May 10, 2012. The appeal includes new factual allegations and evidence provided
for the first time on appeal that all predate the dismissal letter. Specifically, the appeal includes
excerpts from a contract covering the period 2010 - 2013 that Hood asserts "existed before the
vote in question in May, 2011." In addition, the appeal includes a letter dated April 29, 2011
with attached tentative agreements dated March 9, March 25, April 13, and April 27, 2011.
Hood asserts that these documents demonstrate that the Association's actions had a "substantial
impact" on his employment relationship with the District in that they resulted in unfavorable
changes to his transfer and seniority rights. The appeal provides no reason why these documents
and factual allegations could not have been included in the original charge or in the amended
charge. Thus, we do not find good cause to consider these new allegations. Moreover, for the
reasons stated above, even
ifwe
were to consider them, they would not alter our conclusion that
the charge fails to state a prima facie violation
of
the duty
of
fair representation.
ORDER
The unfair practice charge in Case No. LA-CO-1499-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
3

STATE OF CALIFORNIA EDMUND
G.
BROWN
JR.,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700 N.
c;;;tral
Ave.; Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
F
April 13, 2012
Richard Hood
30847 San Martinez Road
Val Verde, CA 91384
Re: 	Richard Hood
v.
Fillmore Unified Teachers Association
Unfair Practice Charge No. LA-CO-1499-E
DISMISSAL LETTER
Dear Mr. Hood:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November
9,
2011. Richard Hood (Charging Party) alleges that the
Fillmore Unified Teachers Association (Association) violated section 3543(a)
of
the
Educational Employment Relations
~(EERA
or Act) 1 by denying him an equal right to
participate in a contract ratification vote.
Charging Party was informed in the attached Warning Letter dated December 22, 2011, that
the charge did not state a prima facie oose. Charging Party was also advised that it was
assumed that the Charging Party also meant to allege a violation ofEERA section 3543.6,
subdivision (b), that the Association interfered with Charging Party's exercise ofrights
guaranteed by the Act. The \Vaming Letter also reviewed Charging Party's allegations to
determine whether they stated a prima facie violation
of
Charging Party's right to fair
representation. The Warning Letter set forth the law relevant to interference and the duty
of
fair representation and concluded the allegations failed to demonstrate unlawful interference or
a failure to meet the duty
of
fair representation.
Charging Party_was advised that,
if
there were any factual inaccuracies or additional facts that
would correct the deficiencies explained in that letter, Charging Party should amend the
charge: Charging Party was further advised that, unless Charging Party amended these
allegations to state a prima facie case or withdrew them prior to January
6,
2012, the charge
would be dismissed. Charging Party requested and obtained an extension
of
time to amend the
charge and on January 12, 2012, Charging Party filed his First Amended Charge.
I. 	Additional Allegations in First Amended Charge
Prior to March 15, 2011, the Fillmore Unified School District (District) issued 46 RIF notices.
Eighteen of the RlFs were for elementary teachers.
1 EERA is codified at Government Code section 3540 et seq. The text of the may be
found at www.perb.ca.gov.

LA-CO-1499-E
April 13, 2012
Page 2
On March 25, 2011 the District and the Association signed a tentative agreement that included
five furlough days for the next school year.
District	On April 29, 2011, the District sent out a bargaining update notifying members that the
was planning-to-rescind the majority
of
the elementary RIFs on May 3, 2011.
On May 4 and
5,
2011, the Association conducted a ratification vote on the tentative contract
at all the campuses. The Association required members
to
vote at central locations at the
Middle School, High School and Continuation School during limited times
of
the day.
of
	On May 6 and 9, 2011, the Association allowed members at Mountain Vista School, one 	the
four elementary schools in the District, to "have until Monday[, May 9, 2011,] 2:30 to vote."
(5/4/2011 e-mail message from Jennifer Fitzpatrick to Mountain Vista Staff, attached to First
Amended Charge.) The e-mail message explained the Mountain Vista staff would have until
May
9,
2011, because members at Mountain Vista did not receive the ratification packet on
Friday, April 29, 2011 like bargaining unit members at other work sites.
of
	On November
7,
2011, Charging Party learned from a bargaining unit member that at two
the four elementary school sites, Association Representatives brought ballot boxes, ballots and
election sign-in sheets to teachers' classrooms during preparation time and urged them to vote
and cast their ballot immediately.2 	·
he	As a result
of
the vote and subsequent contract, Charging Party was given two classes 	had
not previously taught and Charging Party was not afforded the right to transfer. Charging
Party suffered additional stress that lead him to retire early for health reasons, which adversely
affects Charging Party's income and benefits for his family, and lessens his retirement income
for life.
Charging Party complains he was excluded from voting because he was a religious objector
and complains the Association conducted the election in a way that favored participation
of
elementary school employees who have less seniority, were scared
of
losing their jobs, and
were more likely to vote to ratify the tentative agreement.
Discussion
Timeliness
EERA section 354 l.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
2 On April 13, 2012, Charging Party advised this Board Agent during a telephone
conversation that Charging Party could provide more evidence that the Respondent selectively
took ballot boxes to individual members to skew participation.

LA-CO-1499-E
April 13, 2012
Page 3
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating that the
charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024;
State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.) Charging
Party alleges that he learned
of
Respondent's conduct on November 7, 2011. Assuming,
arguendo, the unfair practice charge is not time barred, the charge still fails to state a prima
facie violation
of
EERA as explained herein below. 	·
Duty
of
Fair Representation
It is well-established that PERB does not have jurisdiction over matters concerning internal
union affairs unless they have a substantial impact on the relationship
of
bargaining unit
employees to their employer so as to give rise to a duty
of
fair representation. (Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106;
California State Employees Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-
S.) In California State Employees Association (Hutchinson) (1999) PERB Decision No. 1369-
S, the Board dismissed allegations that the union conducted elections outside the time frame
required by union bylaws; and mailed election ballots, improperly validated ballots, failed to
properly distribute election results, and improperly installed union officers in violation
of
union bylaws. In California State Employees Association (Hackett) (1993) PERB Decision
No. 1012-S, the Board found no substantial impact on the employee-employer relationship
where the union suspended the bargaining team; submitted a proposal to the membership for
ratification that was not approved by the bargaining team; failed to provide a secret ballot; and
failed to give the membership any choice on the ballot except to vote for ratification or strike.
Further, as a general rule, an exclusive representative enjoys a wide range
of
bargaining
latitude. As the United States Supreme Court explained in Ford Motor
Co.
v.
Huffman (1953)
345 U.S. 330:
Any authority to negotiate derives its principal strength from a
delegation to the negotiators
of
discretion to make such
concessions and accept such advantages as, in the light
of
all
relevant considerations, they believe will best serve the interests
of
the parties represented
....
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. 	wide range of reasonableness must be
allowed a statutory bargaining representative 	serving the unit it
represents, subject always to complete good faith and honesty of
purpose in the exercise of its discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members of the unit it represents.
(California School Employees Association and its Chapter 107 (Chacon) (1995) PERB

LA-CO-1499-E
April 13, 2012
Page 4
Decision No. 1108.) Moreover, the duty
of
fair representation does not mean an employee
organization is barred from making an agreement which may have an unfavorable effect on
some members, nor is an employee organization obligated to bargain a particular item
benefiting certain unit members. (Ibid.; Los Rios College Federation
of
Teachers, CFTIAFT
(Violett, et al.) (1991) PERB Decision No. 889.) The mere fact that some employees are not
satisfied with the agreement is insufficient to demonstrate a prima facie violation. (Los
Rios
College Federation
of
Teachers, CFTIAFT (Violett, et al.), supra.)
In contrast, a union violates its duty to fairly represent its members
if
its conduct in
representing bargaining unit employees in contract negotiations is arbitrary, without a rational
basis or devoid
of
honest judgment. (Rocklin Teachers Professional Association (Romero)
(1980) PERB Decision No. 124.) The duty
of
fair representation concerning contract
negotiations requires an exclusive representative to provide "some consideration
of
the views
of
various groups
of
employees and some access for communication
of
those views."
(El Centro Elementary Teachers Association (Willis and Willis) (1982) PERB Decision
No. 232; Kern High Faculty Association, CTAINEA (Maaskant) (2006) PERB Decision
No. 1834 ["union may exclude non-members from voting as long as the union provides them
with an opportunity to communicate their views"].) The burden
is
on the charging party to show
how
an
exclusive representative abused
its
discretion, and not on the exclusive representative to show
how
it
properly exercised its discretion. (United Teachers
-Los
Angeles (Wyler) (1993) PERB
Decision No. 970.)
Charging Party alleges he suffered many unfavorable effects as a result
of
the vote and
subsequent contract. For example, Charging Party was given two classes he had not previously
taught and was not afforded the right to transfer. Charging Party also suffered additional stress
that lead him to retire early for health reasons, which adversely affects Charging Party's
income and benefits for his family, and lessens his retirement income for life. The unfavorable
effects, however, do not demonstrate the Association's election or the contract it agreed to with
the District had a "substantial impact" on Charging Party's employment relationship with the
District. Without allegations demonstrating substantial impact on the employee-employer
relationship, PERB will not intervene in the Association's internal affairs. 	Similarly, the
unfavorable effects, by themselves, do not demonstrate the Association breached its duty
of
fair representation. (California School Employees Association and its Chapter 107 (Chacon),
supra, PERB Decision No. 1108.) Charging Party did not meet his burden to provide facts
demonstrating the Association's conduct was without a rational basis or devoid
of
honest
judgment. (United Teachers - Los Angeles
(TrVyler),
supra, PERB Decision No. 970.) Finally,
Charging Party's allegations do not allege the Association failed to provide opportunities for
Charging Party to communicate his views to the Association. Without allegations
demonstrating substantial impact on Charging Party's relationship with the District, allegations
demonstrating the Association's conduct was without a rational basis or was devoid of honest
judgment, or allegations demonstrating Charging Party was denied opportunity to
communicate his views to the Association, the allegations fail to establish a prima facie case
that the Association breached its duty of fair representation.

LA-CO-14 99-E
April 13, 2012
Page 5
Interference
The December 22, 2011, Warning Letter explained the legal test for interference requires a
showing that the right purportedly infringed by the employee organization must be one
provided by EERA. A right provided by the employee organization itself, for example, the
right to vote on contract ratification,
is
not provided by EERA. The allegations in Charging
Party's First Amended Complaint fail to provide any further information that would
demonstrate the right to vote on contract ratification is a right provided by EERA. Thus,
Charging Party fails to establish a prima facie case that the Association unlawfully interfered
with Charging Party's rights.
Conclusion
For the reasons set forth herein and in the December 22, 2011 Warning Letter, the Charge is
hereby di'smissed.
Right to Appeal
Pursuant to PERB Regulations,3 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. 	(PERB 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.
(PERB Regulations 32135(a) and 32130; see also Gov. Code,§ 11020, subd. (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. (PERB Regulation 32135(b),
(c) and (d); see also PERB Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811 	124
(916) 322-8231
FAX: (916) 327-7960
3 PERB 's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CO-1499-E
April 13, 2012
Page 6
If
Charging Party files a timely appeal
of
the refusal to issue a complaint, any other party may
file with the Board an original and five (5) copies
of
a statement in opposition within twenty
(20) calendar days following the date
of
service
of
the appeal. 	(PERB 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 PERB 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. (PERB
Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (PERB Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
Senior Regional Attorney
Attachment
cc: Brenda Sutton-Wills, Staff Counsel
MW

STATE OF CALIFORNIA 	EDMUND
G.
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818).551-2820
F
December 22, 2011
Richard Hood
30847 San Martinez Road
Val Verde, CA 91384
Re: 	Richard Hood
v.
Fillmore Unified Teachers Association
Unfair Practice Charge No. LA-CO-1499-E
WARNING LETTER
Dear Mr. Hood:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 9, 2011. Richard Hood (Hood or Charging Party)
alleges that the FiIImore Unified Teachers Association (Association or Respondent) violated
section 3543(a)
of
the Educational Employment Relations Act (EERA or Act) 1 by denying him
an equal right to participate in a contract ratification vote. 	For the purpose
of
this Warning
Letter, it is assumed that the charge also means to allege a violation
of
EERA section 3543.6,
subdivision (b) by interfering with Charging Party's exercise
of
rights guaranteed by the Act. 2
I. 	Facts as Alleged
Charging Party was employed by the Fillmore Unified School District (District), but has
retired since the conduct alleged in the charge took place. The charge alleges that Charging
Party was denied an equal right to participate in a contract ratification vote because at his
school site, the Association required him to report to a central location during limited times on
May 4 and 5, 2011, whereas at other sites, the Association brought the ballot box to members
in their classroom, and urged them to vote, during "prep time" on these days. The charge
further alleges that at one site, but not at Charging Party's site, the Association allowed
members to vote also on "Friday, May 6th, and Monday, May 7th," 2011.3
1 EERA is codified at Government Code section 3540 et seq. The text
of
the may be
found at www.perb.ca.gov.
2 The Board Agent may, upon review of an unfair practice charge, determine the
grounds under which the charge should be analyzed. (Los Banos Unified School District
(2007) PERB Decision No. 1935.)
3 It is assumed that the reference to "Monday, May 7th" is in error and that reference to
Monday, May 9, 2011, is intended.

LA-CO-1499-E
December 22, 2011
Page 2
The charge further alleges that "[a]s a result
of
this vote and subsequent contract, [Charging
Party] was given two classes he had not previously taught, and was not afforded a request for
transfer." The charge finally alleges that "this union ratified contract resulted
in
[the] District
being able to save itself money by lowering its share
of
teacher's retirement by
...
publishing
its salary schedule based on reduced school[] days (furlough days)."
As a remedy, the charge requests that the ratification vote "should be conducted over again"
and that Association officers "should be required to sign affidavits that they conduct this revote
in the manner specified by PERB and [Association] guidelines."
II. 	Discussion
A.
	Burden
to
State
a
Prima
Facie Case
PERB Regulation 326 l 5(a)(5)4 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.)
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; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) 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.)
Failure to State a Timely
Prima Fade
Case
1. 	Untimeliness
When calculating the statute
of
limitations, the six month period "is to be computed by
excluding the day the alleged misconduct took place and including 	last day." (Saddleback
Valley Unified School District (1985) PERB Decision No. 558; see also Service Employees
International Union, United Healthcare Workers West (Scholink) (2011) PERB Decision No.
4 PERB Regulations are codified at Code of Regulations, title 8, section 3100 I et seq.
The text of the PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1499-E
December 22, 2011
Page 3
2172-M, holding that where the charging party complained
of
unlawful conduct occurring on
September
8,
2009, the statute
of
limitations period began on September
9,
2009, and
concluded on March
8,
2010, and dismissing the charge as untimely because the charging party
did not file the unfair practice charge until March 9, 20 I 0.)
The instant charge was filed on November
9,
2011. Accordingly, any allegations
of
unlawful
conduct that occurred before May 9, 2011, are untimely. 	The allegations
of
improprieties that
occurred on or before May
7,
2011-specifically,
that the Association required Charging Party
to report
to
a central location during limited times but brought the ballot box to other members
in their classroom during "prep
time''-must,
therefore, be dismissed as untimely. 	Only the
allegations
of
improprieties that occurred on or after May
9,
2011-specifically, that the
Association allowed members at one site, but not Charging Party's site,
to
vote on May
9,
2011-are
timely.
2. 	Interfere nee
The test for whether a
respondent-here,
the
Association-has
interfered with the rights
of
employees under the EERA is the same for employers and employee organizations and does
not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. 	In State
of
California (Department
of
Developmental Services)
(1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB
Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
[I]n order to establish a prima facie case
of
unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA.
(Emphasis supplied.)
Under the above-described test, a violation may only be found
if
EERA provides the claimed
rights. 	By contrast, a violation
of
rights granted under, e.g., the Association's constitution,
bylaws, or other internal governing document does not, without more, state a violation.
In Stationary Engineers Local 39 (May) (2010) PERB Decision No. 2098-M (May), PERB
found that it is well-established that it does not have jurisdiction over matters concerning
internal union affairs unless they have a substantial impact on the relationship
of
bargaining
unit employees to their employer so as to give rise to a duty of fair representation. PERB held
that allegations
of
a union's failure to inform its members of a bargaining decision, provide
them with information, or call a union membership meeting regarding that bargaining decision
did not meet this test. (Ibid) PERB so held despite the allegation that the bargaining decision
at issue there "resulted in additional work assignments" to the charging party in that case,
because "the dispute concern[ ed] internal union operations and communications with union
members, not the ultimate outcome of negotiations between [the union] and [the employer].''

LA-CO-1499-E
December 22, 2011
Page 4
(Ibid.) 	Similarly, in California State Employees Association (Hutchinson) (1999) PERB
Decision No. 1369-S, the Board dismissed allegations that the union conducted elections
outside the timeframe required by union bylaws, mailed election ballots, improperly validated
ballots, failed to properly distribute election results, and improperly installed union officers in
violation
of
union bylaws.
By the same token, PERB does not have jurisdiction over the allegation that the Association
allowed members at one site, but not Charging Party's site, to vote on May
9,
2011, absent a
showing that this conduct had a substantial impact on Charging Party's relationship to the
District. Under Afay, the allegation that "[a]s a result
of
this vote and subsequent contract,
[Charging Party] was given two classes he had not previously taught, and was not afforded a
request for transfer," and that "this union ratified contract resulted in [the] District being able
to save itself money by lowering its share
of
teacher's retirement by
...
publishing its salary
schedule based on reduced school[] days (furlough days)," does
not
establish the required
impact, because "the dispute [over the ratification vote] concerns internal union operations and
communications with union members, not the ultimate outcome
of
negotiations between [the
Association] and [the District]." (May, supra, PERB Decision No. 2098-M.)
3.	
Dutv
of
Fair Representation5
A charge states a prima facie case
of
a violation
of
the duty
of
fair representation under the
circumstances
of
the present case only
if
it appears from the charge that "either the agreement
itself, or the determination not to seek formal ratification [or similar conduct, such as the
decision to allow members at one site, but not Charging Party's site, to vote on May 9, 2011],
was arbitrary, discriminatory[,] or in bad faith." (California School Employees Association
and its Chapter 107 (Marquez) (1995) PERB Decision No. 1097.) The charge does not include
facts from which it appears that the Association's decision to allow members at one site, but
not Charging Party's site, to vote on May 9, 2011, was arbitrary, discriminatory, or in bad
faith. 	Accordingly, an allegation
of
a violation
of
the duty
of
fair representation would have to
be dismissed as well.
III. 	Conclusion
For these reasons 	charge, as presently written, does not state a prima facie case. 6 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
5 The charge does not allege that the Association violated EERA section 3544.9
failing to fairly represent Charging Party. 	This section is included here in the event Charging
Party intended or understood such an allegation to be included in the charge.
6 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or

LA-CO-1499-E
December 22, 2011
Page 5
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 January 6, 2012, 7 PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Bernhard Rohrbacher
Supervising Regional Attorney
BR
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid)
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)