United Educators of San Francisco (Banos) (PERB 1764E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANLEY J. BANOS,
Charging Party,
v.
UNITED EDUCATORS OF SAN FRANCISCO,
Respondent.
Case No. SF-CO-655-E
PERB Decision No. 	1764
A p r i l 	2 1 , 	2005
Appearance: 	Stanley J. Banos, on his own behalf.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Stanley J. Banos (Banos) of a Board agent's dismissal of his
unfair practice charge. 	The charge alleged that the United Educators of San Francisco (UESF)
violated the Educational Employment Relations Act (EERA)1 by failing to adequately
represent him and therefore breaching its duty of fair representation. 	The Board agent
dismissed the unfair practice charge on grounds that the supporting allegations failed to state a
prima facie case and were likely untimely.
On appeal, Banos reasserts his contention that UESF provided inadequate
representation related to his placement on administrative duty and termination, and for the first
time provided the facts related to the basis for these steps.
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

After review of the unfair practice charge, the amended charge, the warning and
dismissal letters, and Banos' appeal, the Board finds that the charge was timely filed, but the
facts alleged in the original and amended charge are insufficient to state a prima facie case.
DISCUSSION
Banos was a probationary teacher at Tenderloin Community School in the
San Francisco Unified School District (District). He was a Special Education teacher for
emotionally disturbed students. In his original charge he stated he was placed on
administrative duty on November 24, 2003, and returned to work on December 15, 2003. He
was questioned by District officials with UESF Representative Jocelyn Won present. 	He was
again removed from the classroom in mid-February 2004. He was a probationary teacher and
the District could terminate his employment with or without cause. He was notified on
March 9, 2004, that he would not be rehired. In his amended charge he noted that negative
documents had been placed in his personnel file.
Banos met with UESF President Dennis Kelly (Kelly) on or about February 15, 2004,
and was told that the union would investigate the disciplinary matter. He met with a new
Representative, Mary Anne Ahtye (Ahtye), on February 24 and several other times. He last
met with her in mid or late March 2004. He told her at some point that he had retained private
counsel, but still continued to meet with her. He knew he had been rejected on probation and
would not return the next semester but he wanted the District to remove certain documents
from his personnel file. 	He believed they were negative and might impact his future
employment.
After approximately one month since the last meeting with Ahtye, Banos became
concerned because he had not heard from her. He called her on April 22, 2004, and found out
she had left town on personal business. He called Kelly the next day and again on April 27
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without any response from Kelly. Just prior to his final meeting with the District (May 12,
2004) he called Kelly for the last time. 	He did not speak with Kelly but left a message
. conveying his feeling that he had not been represented appropriately and requested his union
dues be returned.
Banos was represented by counsel at the final meeting with the District but there is no
information in the charge indicating when the attorney was actually hired.
NOTICE
The Board agent incorporated facts from UESF's position statement in the warning and
dismissal letters. 	The statement was not served on Banos or signed under penalty of perjury.
Without first requiring UESF to provide a copy to Banos, with the signature under penalty of
perjury, the Board agent should not have relied on UESF's position statement. PERB
Regulation 32620(c)2 requires:
The respondent shall be apprised of the allegations, and may state
its position on the charge during the course of the inquiries. Any
written response must be signed under penalty of perjury by the
party or its agent with the declaration that the response is true and
complete to the best of the respondent's knowledge and belief.
Service and proof of service pursuant to Section 32140 are
required.
In addition, PERB's introductory letter informs the parties, in bold type, that:
Any written response must be signed under penalty of perjury
with a declaration that the response is true and complete to the
best of the Respondent's knowledge and belief and must be
served on the Charging Party. [3]
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
3Because UESF's position statement was not filed within the parameters of PERB
Regulation 32620(c) the Board did not consider it in formulating this decision.
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TIMELINESS
The Board agent found that the charge was likely untimely. In cases alleging a breach
of the duty of fair representation, the six-month statutory limitation period begins to run on the
date when the charging party, in the exercise of reasonable diligence, knew or should have
known that further assistance from the union was unlikely. 	(Los Rios College Federation of
Teachers, CFT/AFT (Violett. et al.) (1991) PERB Decision No. 889.)
The charge was filed on October 28, 2004. The six-month statutory limitations period
began to run April 28, 2004. To be timely filed Banos must have known or reasonably should
have known on or after April 28, 2004, that UESF was no longer assisting him.
Banos called Kelly on April 27. It is reasonable to assume that Banos was expecting a
response from Kelly to update him on the status of his case. It was not until just before his last
meeting with the District on May 12, 2004, that Banos called Kelly one last time to complain
about his lack of representation and request a refund of his union dues. 	This evidence indicates
Banos did not understand until sometime between April 27 and the first two weeks of May
2004 that UESF would not provide further assistance. 	This shows that Banos timely filed his
charge within six months of when he reasonably believed there would be no further assistance
from UESF.
Even if Banos did hire an attorney as early as March 2004, obtaining an attorney does
not automatically terminate a union's duty to represent a unit member fairly. 	In Valley of the
Moon Teachers Association. CTA/NEA (McClure) (1996) PERB Decision No. 1165, the
employee had the assistance of both the union and a private attorney. 	There, the employee's
attorney advised her to seek the union's representation in matters involving contract violations
while the attorney presumably represented her in extra-contract matters. At the employee's
request, the union filed a grievance on her behalf and continued to represent her at meetings
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with the school district. The union would not, however, provide information directly to her
attorney. The Board stated that in areas where an employee chooses self representation, the
union does not have an obligation to provide assistance. The holding there was that the union
did not violate the duty of fair representation when it refused to provide information regarding
the employee grievance directly to her private attorney. Retaining an attorney does not
automatically terminate a union's duty of fair representation.
DUTY OF FAIR REPRESENTATION
Banos has alleged that the exclusive representative denied him 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 (UTLA (Collins)).) In
order to state a prima facie violation of this section of EERA, charging party must show that
the respondent's conduct was arbitrary, discriminatory or in bad faith. In UTLA (Collins), the
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.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance if the chances for success are minimal.
In order to state a prima facie case of arbitrary conduct violating the duty of fair
representation, a charging party:
" . . . must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. 	(Emphasis added.)"
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(Reed District Teachers Association, CTA/NEA (Revest (1983)
PERB Decision No. 332, p. 9, 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 act completely extinguishes the employee's right to pursue his claim." (Quoting
Dutrisac v. Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at
p. 1274; see also, Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082
[98 LRRM 2090].)
Here, the first UESF representative attended the investigatory meeting with Banos. 	She
stopped the meeting and took him outside to ask him what was going on. Banos also discussed
his case with Kelly, the UESF president. Further, Banos asked for and received a second
representative and he spoke with her several times.
Banos has not provided facts that indicate an arbitrary or bad faith effort on the part of
UESF. As noted above, the union may exercise its discretion on how far to pursue a grievance
so long as it does not arbitrarily ignore a meritorious grievance.
Even after receipt of the warning latter, Banos did not provide evidence to support a
prima facie case of arbitrary or bad faith action or inaction by UESF. 	Therefore, even though
timely filed, he did not meet his burden on the merits.
NEW ALLEGATIONS ON APPEAL
PERB Regulation 32635(b) provides that "[u]nless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence." Banos
has failed to demonstrate good cause for the presentation of new allegations and/or supporting
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evidence on appeal, and nothing in the documents filed related to the appeal indicates there is
good cause.
ORDER
The unfair practice charge in Case No. SF-CO-655-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Shek joined in this Decision.
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