United Faculty of Grossmont-Cuyamaca Community College District (Tarvin) (PERB 2133E)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
JAMES FREDERICK TARVIN,	JAMES FREDERICK TARVIN,
Charging Party,	Charging Party,
v
V..
UNITED FACULTY OF GROSSMONT-	UNITED FACULTY OF GROSSMONT-
CUYAMACA COMMUNITY COLLEGE	CUYAMACA COMMUNITY COLLEGE
DISTRICT,	DISTRICT,
Respondent.	Respondent.
Case No. LA-CO-1361-E	Case No. LA-CO-1361-E
PERB Decision No. 2133	PERE Decision No. 2133
September 21, 2010	September 21, 2010
Appearance:	Appearance: James Frederick Tarvin, on his own behalf.	James Frederick Tarvin, on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.	Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
DECISION	DECISION
c
T
McKEAG, Member: This case comes before the Public Employment Relations Board
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by James Frederick Tarvin (Tarvin)
of
a dismissal (attached)
of
an
(PERB or Board) on appeal by James Frederick Tarvin (Tarvin) of a dismissal (attached) of an
unfair practice charge by a Board agent The charge alleged that the United Faculty
of
unfair practice charge by a Board agent. The charge alleged that the United Faculty of
Grossmont-Cuyamaca Community College District (United Faculty) violated the Educational	
Grossmont-Cuyamaca Community College District (United Faculty) violated the Educational
Employment Relations Act (EERA)1 by failing to adequately represent Tarvin in the grievance
Employment Relations Act (EERA)' by failing to adequately represent Tarvin in the grievance
process. Tarvin alleged that this conduct constituted a breach
of
the duty
of
fair representation
process. Tarvin alleged that this conduct constituted a breach of the duty of fair representation
in violation
of
EERA sections 3543.6(b) and 3544.9.	in violation of EERA sections 3543.6(b) and 3544.9.
factsThe Board agent found that Tarvin failed to plead sufficient facts to demonstrate the	The Board agent found that Tarvin failed to plead sufficient 	to demonstrate the
charge was timely. 	In addition, the Board agent found that even
if
the charge was timely,
harge was timely. In addition, the Board agent found that even if the charge was timely,
Tarvin failed to plead sufficient facts to demonstrate that United Faculty breached its duty of
arvin failed to plead sufficient facts to demonstrate that United Faculty breached its duty of
1
EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,	EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.	all statutory references herein are to the Government Code.

2
fair representation. Accordingly, the Board agent dismissed the charge for failure to establish
fair representation. Accordingly, the Board agent dismissed the charge for failure to establish
a prima facie case.	a prima facie case.
theWe have reviewed the entire record in this matter and find the warning and dismissal	We have reviewed the entire record in this matter and find 	warning and dismissal
letters were well-reasoned, adequately supported by the record and in accordance with
letters were well-reasoned, adequately supported by the record and in accordance with
applicable law. Accordingly, we adopt the warning and dismissal letters as a decision
of
the
applicable law. Accordingly, we adopt the warning and dismissal letters as a decision of the
Board itself, subject to the following discussion regarding Tarvin's appeal.	Board itself, subject
to
the following discussion regarding Tarvin's appeal.
DISCUSSION	DISCUSSION
p	32635(b	PERB Regulation 32635(b)	PERB Regulation	
)2
provides: "Unless good cause is shown, a charging party	rovides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (See, e.g.,
may not present on appeal new charge allegations or new supporting evidence." (See, e.g.,
Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School
Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School
(2002) PERB Decision No. 1486.) The purpose
of
this regulation "is to require theDistrict (2002) PERB Decision No. 1486.) The purpose of this regulation "is to require the	District
charging party to present its allegations and supporting evidence to the Board agent in the first
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	
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)
issue a complaint or dismiss the case." (South San Francisco Unified School District (1990)
PERB Decision No. 830.)	PERB Decision No. 830.)
Relevant to the instant appeal, the Board has denied finding good cause to consider
Relevant to the instant appeal, the Board has denied finding good cause to consider
new allegations presented on appeal when the evidence underlying the allegations was
new allegations presented on appeal when the evidence underlying the allegations was
available to the charging party prior to the dismissal
of
the charge and the appeal fails to
available to the charging party prior to the dismissal of the charge and the appeal fails to
explain
vv1~1:y
tl1e
allegations could not
l1ave
been
rr1ade
to the Board
ager1t
during the
explain why the allegations could not have been made to the Board agent during the
investigation. (See e.g., California School Employees Association & its Chapter 183
investigation. (See e.g., California School Employees Association & its Chapter 183
PERB regulations are codified at California Code of Regulations, title 8,PERB regulations are codified at California Code of Regulations, title 8,
ssec	ection 31001, et seq.	tion 3 1001, et seq.
2

3
(Richards) (2004) PERB Decision No. 1716; University
of
California (Lawrence Berkeley	Richards) (2004) PERB Decision No. 1716; University of California (Lawrence Berkeley
Laboratory) (1993) PERB Decision No. 998-H.)	Laboratory) (I 993) PERB Decision No. 998-H.)
Here, Tarvin's appeal contains a myriad
of
new facts and allegations. The timeframeHere, Tarvin's appeal contains a myriad of new facts and allegations. The timeframe
for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter
vvas	for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter was
issued on January
8,
2009, these allegations clearly predate the dismissal, and there is	issued on January 8, 2009, these allegations clearly predate the dismissal, and there is
nothing in the record to suggest they were not known to Tarvin prior to the dismissal
of
hisnothing in the record to suggest they were not known to Tarvin prior to the dismissal of his
charge. Tarvin's appeal fails to explain why this new evidence could not have been	charge. Tarvin's appeal fails to explain why this new evidence could not have been
presented to the Board agent prior to the dismissal
of
his charge. Accordingly, since Tarvin
presented to the Board agent prior to the dismissal of his charge. Accordingly, since Tarvin
knew of this information prior to the issuance of the dismissal, we do not find good cause to	knew
of
this information prior to the issuance
of
the dismissal, we do not find good cause to
consider Tarvin' s new evidence and aliegations on appeal. ( Coalition
of
Universityconsider Tarvin's new evidence and allegations on appeal. (Coalition of University
Employees (Hall) (2010) PERB Decision No. 2095-H.)	Employees (Hall) (2010) PERB Decision No. 2095-H.)
fileIn his appeal, Tarvin claims he should be excused from failing to file an amended	
In his appeal, Tarvin claims he should be excused from failing to 	an amended
charge because he is not a lawyer, and he is
unfamiliar with PERB process. The Board,
charge because he is not a lawyer, and he is unfamiliar with PERB process. The Board,
however, has ruled that ignorance
of
the law is no excuse and, therefore, insufficient tohowever, has ruled that ignorance of the law is no excuse and, therefore, insufficient to
warrant a finding
of
good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB
warrant a finding of good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB
Decision No. 1780-M.)	Decision No. 1780-M.)
Last, Tarvin claims he should be excused from failing to file an amended chargeLast, Tarvin claims he should be excused from failing to file an amended charge
because the warning letter was issued during the holiday season. Notwithstanding this barebecause the warning letter was issued during the holiday season. Notwithstanding this bare
assertion, the charge fails to explain how the timing of the issuance
of
the warning letter
assertion, the charge fails to explain how the timing of the issuance of the warning letter
precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not	precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not
warrant a finding of good cause.	warrant a finding of good cause.
3

we	Based on the foregoing, we do not find good cause to consider Tarvin's new	
Based
on the foregoing, 	do not find good cause to consider
Tarvin's new
allegations and new supporting evidence and, therefore, do not consider this new information
allegations and new supporting evidence and, therefore, do not consider this new information
in adopting the warning and dismissal letters as a decision
of
the Hoard itself.in adopting the warning and dismissal letters as a decision of the Board itself.
ORDER	ORDER
4
The unfair practice charge in Case No. LA-C0-1361-E is hereby DISMISSEDThe unfair practice charge in Case No. LA-CO-1361-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.	WITHOUT LEA VE TO AMEND.
Calvillo	Chair Dowdin Calvillo and Member Wesley joined in this Decision.	Chair Dowdin 	and Member Wesley joined in this Decision.
4

STATE OF CALIFORNIA	STATE OF CALIFORNIA 	Governor	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER,
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office	Los Angeles Regional Office
3530 Wilshire Blud., Suite 1435	3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334	Los Angeles, CA 90010-2334
Telephone: (213) 736-7697	Telephone: (213) 736-7697
Fax: (213) 736-4901	Fax: (213) 736-4901
January 8, 2009	January
8,
2009
James Frederick Tarvin	James Frederick Tarvin
Re: 	College	Re: 	James Frederick Tarvin
v.
United Faculty of Grossmont-Cuyamaca Community	James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College
District	District
Unfair Practice Charge No. LA-CO-1361-E	Unfair Practice Charge No. LA-CO-1361-E
DISMISSAL LETTER	DISMISSAL LETTER
Dear Mr. Tarvin:	Dear Mr. Tarvin:
The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or	Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or
Charging	Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College	Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College
violated sections 3543.6(b) and 3544.9 of the Educational	District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational	District (Union or Respondent)
Employment Relations Act (EERA)' by breaching its duty of fair representation.	Employment Relations Act (EERA) 1 by breaching its duty of fair representation.
Charging Party was informed in the attached Warning Letter dated December 15, 2008, that	Charging Party was informed in the attached Warning Letter dated December 15, 2008, that
the above-referenced charge did not state a prima facie case. Tarvin was advised that, if there	the above-referenced charge did not state a prima facie case. Tarvin was advised that,
if
there
were any factual inaccuracies or additional facts that would correct the deficiencies explained	were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, Tarvin should amend the charge. Tarvin was further advised that, unless
hein that letter, Tarvin should amend the charge. Tarvin was further advised that, unless he
amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the	amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the
charge	charge would be dismissed.	would be dismissed.
undersigned 	message 	his	On January 5, 2009, the undersigned left a voice-mail message with Tarvin to confirm his	On January 5, 2009, the 	left a voice-mail 	with Tarvin to confirm
receipt of the December 15, 2008 Warning Letter. 	On January 7, 2009, Tarvin spoke withreceipt of the December 15, 2008 Warning Letter. On January 7, 2009, Tarvin spoke with
Sean McKee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter andSean Mckee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter and
his understanding that because he did not file an amended charge within the prescribed time,	his understanding that because he did not file an amended charge within the prescribed time,
his case would be dismissed. Accordingly, the above-referenced unfair practice charge is	his case would be dismissed. Accordingly, the above-referenced unfair practice charge is
hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter.	hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter.
1
EERA is codified at Government Code section 3540 et seq. The text of the EERA and	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	the Board's Regulations may be found on the Internet at wwww.perb.ca.gov	ww.perb.ca.gov ..

LA-CO-1361-E	LA-CO-1361-E
January 8, 2009	January 8, 2009
Page 2	Page 2
Right to Appeal	Right to Appeal
Pursuant to PERE Regulations,2 Charging Party may obtain a review of this dismissal of the	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	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	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 contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.	must be provided to the Board.
A	A document is considered "filed" when actually received during a regular PERB business day.	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,	(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	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 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	of PERE 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,	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.)	secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:	The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	1031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916) 322-8231	(916) 322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
If Tarvin files a timely appeal of the refusal to issue a complaint, any other party may file with	If Tarvin files 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	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).)	days following the date of service of the appeal. 	(Cal. Code Regs, tit. 8, sec. 32635(b ). )
Service	Service
All documents authorized to be filed herein must also be "served" upon all parties to the	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	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	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	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	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.	may also be concmrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec .. 32135(c).)	(Cal. Code Regs, tit. 8, sec. 32135(c).)
2
PERB's Regulations are codified at California Code of Regulations, title 8, section	PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2
1001 et seq.	3

LA-CO-1361-E	LA-CO-1361-E
January 8, 2009	January 8, 2009
Page 3	Page 3
Extension of Time	Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself,
must
be
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	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
must be filed at least three (3) calendar days before the expiration of the time required for
position
of
filing the document. The request must indicate good cause for and, if known, the position of	filing the document. The request must indicate good cause for and, if known, the
each other party regarding the extension, and shall be accompanied by proof of service
of
the
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.)
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)
Final Date	Final Date
If	If no appeal is filed within the specified time limits, the dismissal will become final when the	no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired	time limits have expired.
Sincerely,	Sincerely,
TAMIR. BOGERT	
TAMI
R. BOGERT
General	General Counsel	Counsel
By
______________
_
By
Truc Nguyen	
True Nguyen
Board Agent	Board Agent
Attachment	Attachment
cc:	cc: Michael P. Baranic	Michael P. Baranic

STATE OF CALIFORNIA	STA'iill OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office	Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435	3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334	
Los
Angeles, CA 90010-2334
Telephone: (213) 736-7697	Telephone: (213) 736-7697
Fax: (213) 736-4901	Fax: (213) 736-4901	
PER-B
December 15, 2008	December 15, 2008
James Frederick Tarvin	James Frederick Tarvin
Re:	Re: 	James Frederick Tarvin
v,
United Faculty of Grossmont-Cuyamaca Community College	James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College
District	District
Unfair	Unfair Practice Charge No. LA-CO-1361-E	Practice Charge No. LA-CO-1361-E
WARNING	WARNING LETTER	LETTER
Dear Mr. Tarvin:	Dear Mr. Tarvin:
was	The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge 	filed with the Public Employment Relations
or	Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or	Board (PERB or Board) on November 4, 2008. Mr. J arnes Frederick Tarvin (Tarvin
Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College	Charging Party) alleges that the United Faculty of Grossrnont-Cuyarnaca Community College
or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational	District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational	District (Union
Employment Relations Act (EERA)' by breaching its duty of fair representation.	Employment Relations Act (EERA) 1 by breaching its duty of fair representation.
Background	Background
Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca	Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca
Community College (District). The Union is the exclusive representative for the faculty at the	Community College (District). The Union is the exclusive representative for the faculty at the
District.	District.
Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed	Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed
his disability to the District and to the Union. During this time, he did not request	his disability to the District and to the Union. During this time, he did not request
accommodation for his disability.	accommodation for his disability.
Upon disclosure of his disability, Tarvin met with the District representatives in a series of	Upon disclosure of his disability, Tarvin met with the District representatives in a series of
meetings Tarvin refers to as the "interactive process" in order obtain reasonable	meetings Tarvin refers to
as
the "interactive process" in order obtain reasonable
accommodation for his disability, According to the charge, the Union did not participate in the	accommodation for his disability. According to the charge, the Union did not participate in the
"interactive process." Further, the charge also alleges that Tarvin has been "denied access to	"interactive process." Further, the charge also alleges that Tarvin has been "denied access to
the grieving [sic] process, denied access to union lawyers" by the Union.	the grieving [sic] process, denied access to union lawyers" by the Union.
1
EERA is codified at Government Code section 3540 et seq. The text of the BERA and	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	the Board's Regulations may be found on the Internet at www.perb.ca.gov	www.perb.ca.gov.,

LA-CO-1361-E	LA-CO-1361-E
December 15, 2008	December 15, 2008
Page 2	Page 2
Discussion	Discussion
I.
I. Statute of Limitations	Statute
of
Limitations
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any	EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to
"any
charge based upon an alleged unfair practice	charge based upon an alleged unfair practice occurring more than six months prior to the filing	occurring more than six months prior to
the
filing
of	of the charge." The limitations period begins to run once the charging party knows, or should	the charge." The limitations period begins to run once the charging party knows, or shouldhave known,
of
the conduct underlying the charge.	have known, of the conduct underlying the charge. (Gavilan Joint Community College District	(Gavilan Joint Community College District
( 1996)	(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the	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;	charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024;
State
of
California (Department	State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.) The statute	
of
Insurance) (1997) PERB Decision No. 1197-S.)
The
statute
of	of limitations has also been raised by the respondent as an affirmative defense in this case.	limitations has also been raised by the respondent as an affirmative defense in this case.
(Long	Long Beach Community College District (2003) PERB Decision No. 1564.)	Beach Community College District (2003) PERB Decision No. 1564.)
It is not clear from the charge filed whether the charge was timely filed and thus, whether	It is not clear from the charge filed whether the charge was timely filed and thus, whether
PERB has	PERB has jurisdiction over the unfair practice. The charge filed with PERB does not provide	jurisdiction over the unfair practice. The charge filed with PERB does not
providethe	the date of when Tarvin and the District engaged in the "interactive process." Further, the	date
of
when Tarvin and the District engaged in the "interactive process." Further,
the
charge	charge does not provide the dates of when Tarvin was "denied access to the grieving [sic]	does not provide the dates
of
when Tarvin was "denied access to the grieving [sic]
process, denied	process, denied access to union lawyers." In order to determine whether the alleged unfair	access to union lawyers." In order to determine whether the alleged
unfairpractice was timely filed,	practice was timely filed, the charge must provide dates of when the alleged unfair practice	the charge must provide dates of when the alleged unfair practice
occurred.	occurred.
In cases alleging a breach of the duty of fair representation, the six month statutory limitations	In cases alleging a breach
of
the duty of fair representation, the six month statutory limitations
period begins to run on the date when the charging party, in the exercise of reasonable diligence,	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	knew or should have known that further assistance from the union was unlikely. (Los Rios
College	College Federation of Teachers. CFT/AFT (1991) PERB Decision No. 889; United Teachers of	Federation of Teachers, CFT/AFT (1991) PERB Decision No. 889; United Teachers ofLos	Los Angeles (2001) PERB Decision No. 1441.)	Angeles (2001) PERB Decision No. 1441.)
However, even if	However, even if the charge was timely filed, the Charging Party has not demonstrated that the	the charge was timely filed, the Charging Party has not demonstrated that the
Union	Union has violated the EERA for the following reasons.	has violated the EERA for the following reasons.
II.	II. The Duty to Bargain and Scope of Representation	The Duty to Bargain and Scope of Representation
Tarvin alleges that the Union breached	Tarvin alleges that the Union breached its duty of fair representation. EERA section 3544.9	its duty
of
fair representation. EERA section 3544.9
expressly imposes a	expressly imposes a statutory duty of fair representation upon employee organizations,	statutory duty of fair representation upon employee organizations,
providing
th'.'lt·	providing that:
[t]he employee	[t]he employee organization recognized or certified as exclusive	organization recognized or certified as exclusive
representative for the purpose of meeting and negotiating shall	representative for the purpose of meeting and negotiating shall
fairly represent each and every employee in the appropriate unit.	fairly represent each and every employee in the appropriate unit.
In order to state a prima facie	In order to state a prima facie violation of this section of EERA, the Charging Party must show	violation of this section of EERA, the Charging Party must show
that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United	that the Respondent's conduct was arbitrary, discriminatory or in bad faith. 	In United
Teachers of Los Angeles	Teachers of Los Angeles (Collins), the Public Employment Relations Board stated:	(Collins), the Public Employment Relations Board stated:

LA-CO-1361-E	LA-CO-1361-E
December 15, 2008	December 15, 2008
Page	Page 33
Absent bad faith, discrimination, or arbitrary conduct, mere	Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not	negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. 	[Citations omitted.]	constitute a breach of the union's duty. [Citations omitted. ]
A union may exercise its discretion	A union may exercise its discretion to determine how far to	to determine how far to
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.
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed	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	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	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	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.	act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Ouantas	Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)	Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
A.	A. Duty to Union to Engage in the "Interactive Process"	Duty to Union to Engage in the "Interactive Process"
Tarvin alleges that the Union breached its duty of fair representation by refraining from	Tarvin alleges that the Union breached its duty of fair representation by refraining from
participation in the so-called "interactive process." Respondent asserts that the "interactive	participation in the so-called "interactive process." Respondent asserts that the "interactive
process" regarding accommodation of an employee's disability is a component of the Fair	process" regarding accommodation of an employee's disability is a component of the Fair
Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair	Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair
representation.	representation.
The duty of fair representation extends to grievance handling. (Fremont Teachers Association	The duty of fair representation extends to grievance handling. (Fremont Teachers Association
(King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982)	(King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982)
PERB Decision No. 258.) However, the Board has long held that the duty of fair	PERB Decision No. 258.) However, the Board has long held that the duty of fair
representation is limited to contractually-based remedies under the union's exclusive control.	representation is limited to contractually-based remedies under the union's exclusive control.
(Capistrano Unified Education Association, CTA/NEA (La Marca) (2001) PERB Decision	(Capistrano Unified Education Association. CTA/NEA (La Marca) (2001) PERB Decision
No.	No. 1422.) Accordingly, the duty of fair representation does not attach to an exclusive	1422.) Accordingly, the duty of fair representation does not attach to an exclusive
representative in extra-contractual proceedings before agencies such as the Department of Fair	representative in extra-contractual proceedings before agencies such as the Department of Fair
Employment and Housing or the State Personnel Board. (California State Employees	Employment and Housing or the State Personnel Board. (California State Employees
Association (Carrillo) (1997) PERB Decision No. 1199-S; California Union of Safety	Association (Can-illo) (1997) PERB Decision No. 1199-S; California Union of Safety
Employees (John) (1994) PERB Decision No. 1064-S; see also SEITJ Local 790 (Hein) (2004)	Employees (John) (1994) PERB Decision No. 1064-S; see also SEIU Local 790 (Hein) (2004)
PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a	PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a
civil service commission or in an ADA action).)	civil service commission or in an ADA action).)
As stated above, the duty of fair representation is limited to contractually-based remedies	As stated above, the duty of fair representation is limited to contractually-based remedies
under the exclusive control of the Union. In this case, Tarvin, has not specified the terms of	under the exclusive control of the Union. 	In this case, Tarvin, has not specified the terms of
the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the	the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the
collective bargaining agreement addresses violations under the FEHA or that the "interactive	collective bargaining agreement addresses violations under the FEHA or that the "interactive
process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does	process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does
not establish that the Union possesses exclusive control over the "interactive process" and that	not establish that the Union possesses exclusive control over the "interactive process" and that

LA-CO-1361-E	LA-CO-1361-E
December 15, 2008	December 15, 2008
Page 4	Page 4
the Union breached its duty of fair representation by its lack of participation in the "interactive	the Union breached its duty
of
fair representation by its lack
of
participation in the
"interactive
process."	process."
E.	B. Duty of Union to Provide Access to Grievance Process	Duty
of
Union to Provide Access to Grievance Process
In order to state a prima facie case of arbitrary conduct violating the duty of fair representatio	In order to state a prima facie case
of
arbitrary conduct violating the duty of fair representati
a Charging Party	a Charging Party must at a minimum include an assertion of sufficient facts from which it	must at a minimum include an assertion
of
sufficient facts from which it
becomes	becomes apparent how or in what manner the exclusive representative's action or inaction wa	apparent how or in what manner the exclusive representative's action or inaction w
without	without a rational basis or devoid of honest judgment. (Reed District Teachers Association,	a rational basis or devoid
of
honest judgment. (Reed District Teachers Association,
CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9, quoting Rocklin Teachers	CTA/NEA (Reyes) (1983) PERE Decision No. 332, p. 9, quoting Rocklin Teachers
Professional	Professional Association (Romero) (1980) PERB Decision No. 124; emphasis in original.)	Association (Romero) (1980) PERE Decision No. 124; emphasis in original.)
n,	on,
sas
2 equires, inter alia, that an unfair practice charge	requires, inter alia, that an unfair practice
charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair	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	practice." The Charging Party's burden includes alleging the "who, what, when, where
andhow"
of
an unfair practice.	how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994)	(State
of
California (Department
of
Food and Agriculture) ( 1994)
PERE Decision	PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB	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.	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.)	(Ibid.; Charter Oak Unified School District (1991) PERE Decision No. 873.)
In addition, PERB Regulation 32615(a)(5)	In addition, PERE Regulation 32615(a)(5" r	)
In	In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how	this case, Tarvin has not provided a "clear and concise statement
of
the facts" regarding how
the	the Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).)	Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).)
Tarvin has not provided facts as to what he requested from the Union, when he made the	Tarvin has not provided facts as to what he requested from the Union, when he made
the
request	request and how his request was related to the grievance process. (State of California	and how his request was related to the grievance process. (State
of
California
(Department
of
Food and Agriculture),	(Department of Food and Agriculture), supra, PERB Decision No. 1071-S.) Instead, Tarvin	supra, PERB Decision No. 1071-S.) Instead,
Tarvinhas only	has only stated he was denied access to the grievance process. The instant charge fails to	stated he was denied access to the grievance process. The instant charge fails to
provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily, or in	provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily,
or
in
bad faith	bad faith by denying him access to the grievance process. (Reed District Teachers	by denying him access to
t11e
grievance process. (Reed District Teachers
Association, CTA/NEA	Association, CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has asserted a mere	(Reyes), supra, PERE Decision No. 332.) Tarvin has asserted a mere
legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School	legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School
District,	District, supra, PERB Decision No. 873.)	supra, PERB Decision No. 873.)
C.
	C. Duty of Union to Provide Access to Lawyers	Duty of Union to Provide Access to Lawyers
As stated above, the Charging Party has the burden of providing at minimum, sufficient facts	As stated above, the Charging Party has the burden
of
providing at minimum, sufficient facts
to determine in	to determine in what manner the exclusive representative's action or inaction was without a	
Vv'hat
1nanner the c1~clusive represe11tati-ve' s
actio11
or ir1actiori
\Vas
vvitl1out a
rational basis or devoid of honest judgment. (Reed District Teachers Association, CTA/NEA	rational basis or devoid of honest judgment. (Reed District Teachers Association, CT AJNEA
(Reyes),	(Reyes), supra, PERB Decision No. 332.)	supra, PERB Decision No. 332.)
In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how	In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how
the Union denied him access to union lawyers. (Reed District Teachers Association,	the Union denied him access to union lawyers. (Reed District Teachers Association,
2
PERB's Regulations are codified at California Code of Regulations, title 8, section	PERE' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.	31001 et seq.
(

LA-CO-1361-E	
LA-C0-1361-E
December 15, 2008	December 15, 2008
Page 5	Page 5
CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he made a	CT A/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he
made
a
request for a lawyer and that the Union has denied a request to have a union provided lawyer.	request for a lawyer and that the Union has denied a request to have a union provided lawyer.
Even assuming the duty of representation includes some responsibility	Even assuming the duty of representation includes some responsibility to provide Tarvin with	to provide Tarvin with
legal representation, Tarvin does not establish that the Union's decision not to do so in this	legal representation, Tarvin does not establish that the Union's decision not to do so in this
case was arbitrary, discriminatory or made in bad faith. Tarvin has only stated he was denied	case was arbitrary, discriminatory or made in bad faith. 	Tarvin has only stated he was denied
ar-cess	access to lawyers; which is a mere legal conclusion that is insufficient to state a prima facie	....,	
tr.	
1..V
1.1
annrPrC''	
vt
JY.1.iJ'
nrl,1'ch	
VVJ...1.	
.1.
1·s
a
mprp	
J..V.1.V
]p(Tal	
.1.v5 	conclus1'on
i.
th	
\....LJ..
atl-
'S	
J..	
1J.J..1.
"'suff1'c1'ent	
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.1.l-
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c-te>tP
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far-iP	
-.l-
case. (Charter Oak Unified School District, supra, PERB Decision No. 873.)	ease. 	(Charter Oak Unified School District, supra, PERB Decision No. 873.)
For these reasons	For these reasons the charge, as presently written, does not state a prima facie case. If there	the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter	are any factual inaccuracies in this letter or additional facts that would correct the deficiencies	or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge.	explained above, Charging Party may amend the charge. The amended charge should be	The amended charge should
be
prepared on a standard PERB unfair practice charge	prepared on a standard PERB unfair practice charge form, clearly labeled First Amended	form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of	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	perjury by an authorized agent of Charging Party. The amended charge must have the
case
number written on the	number written on the top right hand corner of the charge form. The amended charge must be	top right hand corner
of
the charge form. 	The amended charge
must
be
served on the	served on the Respondent's representative and the original proof of service must be filed with	Respondent's representative and the original proof of service must be filed with
PERB.	
If
an amended charge or	PERB. If an amended charge or withdrawal is not filed on or before December 24, 2008,	withdrawal is not filed on or before December 24, 2008,
PERB will dismiss your charge. If you have any questions, please call me at the above	PERB will dismiss your charge.	
If
you have any questions, please call me at the above
telephone number.	telephone number.
Sincerely,	Sincerely,
Truc Nguyen	True
Nguy<tJ.,f.
Board Agent	Board Agent
TN	
TN