California School Employees Association (Erwin) (PERB 2240E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JACK ERWIN,
Charging Party, Case No. SF-CO-745-E
Vv. PERB Decision No. 2240
CALIFORNIA SCHOOL EMPLOYEES February 24, 2012
ASSOCIATION,
Respondent.

Appearances: Jack Erwin, on his own behalf; Maureen C. Whelan, Attorney, for California
School Employees Association.

Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Jack Erwin (Erwin) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the California School
Employees Association (CSEA) breached its duty of fair representation under the Educational
Employment Relations Act (EERA)! by failing to adequately represent him concerning an
involuntary transfer by his employer, the Vallejo City Unified School District. The Board
agent found that the charge failed to state a prima facie violation of the duty of fair
representation.

The Board has reviewed the dismissal and the record in light of Erwin’s appeal,
CSEA’s response, and the relevant law. Based on this review, we find the dismissal and

warning letters to be well-reasoned, adequately supported by the record, and in accordance

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

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
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635(a),2 an appeal from dismissal must:
(
1)	
State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must sufficiently
place the Board and the respondent "on notice
of
the issues raised on appeal." (State
Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H
(State Employees Trades Council); City & County
of
San Francisco (2009) PERB Decision
No. 2075-M.) An appeal that does not reference the substance
of
the Board agent's dismissal
fails to comply with PERB Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt)
(2009) PERB Order No. Ad-381 (Pratt); Lodi Education Association (Hudock) (1995) PERB
Decision No. 1124; United Teachers - Los Angeles (Glickberg) (1990) PERB Decision No. 846.)
Likewise, an appeal that merely reiterates facts alleged in the unfair practice charge does not
comply with PERB Regulation 32635(a). (Pratt; State Employees Trades Council; Contra Costa
County Health Services Department (2005) PERB Decision No. 1752-M; County
of
Solano
(Human Resources Department) (2004) PERB Decision No. 1598-M.)
PERB regulations are codified at California Code of Regulations, title 8,
sec ti on 3 1001 et seq.
2

The appeal in this case merely restates facts alleged in the original charge that
CSEA
failed to adequately represent Erwin concerning his transfer. It fails, however, to reference any
portion
of
the Board agent's determination or otherwise identify the specific issues
of
procedure, fact, law or rationale to which the appeal is taken, the page or part
of
the dismissal
to which appeal is taken, or the grounds for each issue. Thus, it is subject to dismissal
on
that
basis. (City
of
Brea (2009) PERB Decision No. 2083-M.)
New Evidence and Allegations on Appeal
In his appeal, Erwin presents new factual allegations that were not presented in the
original charge or the amended charge. "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b); see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.) The Board has found good cause when "the information provided could
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 30, 2009, the Board agent issued a letter advising Erwin that the charge
failed to state a prima facie case and warning him that the charge would be dismissed unless he
amended the charge by January 13, 2010 to state a prima facie case. Erwin did not file an
amended charge, but filed additional information in support
of
the charge on January 26 and
February 4, 2010. Thereafter, the Board agent dismissed Erwin's charge on February 16, 2010.
Erwin filed an appeal from the dismissal on March 8, 2010. The appeal includes new factual
allegations and evidence provided for the first time on appeal that all predate the dismissal letter.
The appeal provides no reason why they could not have been alleged in the original charge or in
an amended charge. Thus, we do not find good cause to consider these new allegations.
3

ORDER
The unfair practice charge in Case No. SF-C0-745-E is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Member McKeag joined in this Decision.
Member Huguenin's concurrence begins on page
5.
4

HUGUENIN, Member, concurring: I concur in the result reached by the majority,
which is to dismiss the unfair practice charge for failure to state a prima facie violation of the
duty of fair representation. I write separately to express concern over another issue discussed
in the majority's opinion.
Having affirmed the Public Employment Relations Board (PERB) agent's dismissal on
the merits, the majority then backtracks by suggesting that the appeal "is subject to dismissal"
on the basis that Jack Erwin failed to comply with PERB's appeal procedures. If that is the
case, then in my view PERB should so hold, and not reach the merits. Either we dismiss the
appeal outright for its procedural defects, or we hold the procedural defects to be insufficient
for that purpose, and reach the merits. I can support either, but not both.
5

STATE OF CALIFORNIA 	\RNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
February 16, 2010
Jack Erwin
1779 Paulson Way
Napa, CA 94558
Re: 	Jack Erwin
v.
California School Employees Association
Unfair Practice Charge No. SF-CO-745-E
DISMISSAL LETTER
Dear Mr. Erwin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 17, 2009. Jack Erwin (Mr. Erwin or Charging Party)
alleges that the California School Employees Association (CSEA or Respondent) failed to
properly represent him and thus violated the Educational Employment Relations Act (EERA or
Act). 1
Charging Party was informed in the attached Warning Letter dated December 30, 2009, that
the above-referenced charge did not state a prima facie case. You were advised that,
iftherewere any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, you should amend the charge. You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it prior to January 13, 2010, the
charge would be dismissed.
Mr. Erwin did not file an amended charge but did file additional information in support
of
his
charge on January 26 and February 4, 2010.2
Discussion
The charge filed by Mr. Erwin focuses on a claim that CSEA's representation
of
another
bargaining unit member adversely affected Mr. Erwin. The earlier Warning Letter explained
that Mr. Erwin had failed to demonstrate that CSEA's conduct violates the EERA, given the
discretion that the Board, and the federal courts, have determined is appropriate for an
exclusive representative (California School Employees Association and its Chapter 107
(Chacon) (1995) PERB Decision No. 1108), or that CSEA's conduct was "without a rational
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
2 The materials "filed" on January 26, 2010 were received by PERB on January 19,
2010 but proof of service on the Respondent was not provided until the later date.

SF-CO-745-E
February 16, 2010
Page 2
basis or devoid of rational judgment." (Rocklin Teachers Professional Association (Romero)
(1980) PERB Decision No. 124.)
The additional materials filed by Mr. Erwin in support of his charge largely consist of
documents relating to the employment history of the other employee, and the Last Chance
Agreement negotiated by CSEA and the Vallejo City Unified School District (District) with
respect to that other employee. Also submitted, however, is a copy of a grievance filed by
CSEA on behalf of Mr. Erwin, dated November 19, 2009. In that grievance, CSEA appears to
address the harm allegedly done to Mr. Erwin by the District by its implementation of the Last
Chance Agreement. No information on the disposition of that grievance is provided with the
charge.
As was explained in greater detail in the Warning Letter, 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. (California School Employees Association and its
Chapter 107 (Chacon), supra, PERB Decision No. 1108; Los Rios College Federation of
Teachers, CFTIAFT (Violett,	. 	et al.). 	(1991)	. 	- PERB Decision No. 889.) Here, even if CSEA
negotiated an agreement that had an adverse effect on Mr. Erwin, the charge and the
supplemental materials provided by Mr. Erwin simply fail to demonstrate how CSEA acted in
a manner that was "without a rational basis or devoid of rational judgment," and thus breached
its statutory duty of fair representation. (Rocklin Teachers Professional Association (Romero),
supra, PERB Decision No. 124.)3
Therefore, the charge is hereby dismissed based on the facts and reasons set forth herein, as
well as in the December 30, 2009 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,4 Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (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.
It is further noted that charging party's burden to provide a "clear and concise
statement" of the charge is not satisfied merely by referencing facts contained in documents
attached to the charge, but not set forth in the charge itself. (Regents of the University of
California (2004) PERB Decision No. 1585-H; see, also, Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.)
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-745-E
February 16, 2010
Page 3
A document 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 document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, 	which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

SF-CO-745-E
February 16, 2010
Page 4
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By	
Lee-
Les Chisholm
Division Chief
Attachment
cc: Maureen
C.
Whelan

STATE OF CALIFORNIA 	lRNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
December 30, 2009
Jack Erwin
1779 Paulson Way
Napa, CA 94558
Re: 	Jack Erwin v. California School Employees Association
Unfair Practice Charge No. SF-CO-745-E
WARNING LETTER
Dear Mr. Erwin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 17, 2009. Jack Erwin (Mr. Erwin or Charging Party)
alleges that the California School Employees Association (CSEA or Respondent) violated
section 3541.5 of the Educational Employment Relations Act (EERA or Act). 1
Mr. Erwin is an employee of the Vallejo City Unified School District (District). According to
PERB' s case files, CSEA is the exclusive representative of a bargaining unit including the
District's classified employees. The statement of the charge reads in its entirety and verbatim
as follows:
I applied for and was selected for a promotion to Maintenance
Task/Project Leader on 06/01/2009 with a stipulation that if the
previous employee received a valid California Drivers License by
08/25/2009 I would step down to my old position as Carpenter.
Unbeknownst to me or my immediate supervisors CSE.A altered
the agreement so that the date was changed to 09/03/2009. I then
was given an involuntary transfer back to my old position and my
old rate of pay as of09/14/2009. An involuntary transfer is a step
back but should be at the same rate of pay as the Maintenance
Task/Project Leader. My union did not work for my best interest
when changing the dates of the above mentioned stipulation. I
seek to be reinstated to the Maintenance Task/Project Leader
position that I am highly qualified for or to receive all back pay
and current pay rate of the difference between the Carpenter
position and the Maintenance Task/Project Leader pay.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB's Regulations may be found at www.perb.ca.gov.

SF-CO-745-E
December 30, 2009
Page 2
Discussion
As noted, Charging Party alleges on the face of his charge form that CSEA has violated EERA
section 3541.5. However, section 3541.5 describes the authority and jurisdiction of the Board
to adjudicate unfair practice charges filed by employees, employee organizations and
employers, and does not establish any duty or responsibility of an employee organization that
might be violated by, for example, CSEA. Based on the statement of the charge, it appears to
be more appropriate to consider the instant charge as an allegation that CSEA has breached the
duty of fair representation established by EERA section 3544.9,2 in violation of EERA section
3543.6(b).
The duty of fair representation imposed on an exclusive representative applies both to the
negotiations process and grievance handling. (Fremont Teachers Association (King) (1980)
PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision
No. 258.) In order to state a prima facie violation ofthis section of EERA, Mr. Erwin must
show that CSEA's conduct was arbitrary, discriminatory or in bad faith. 	(Ibid.)
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: 3
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 good faith and honesty of purpose in the exercise of its
discretion.
2 EERA section 3544.9 reads as follows:
The employee organization recognized or certified as the
exclusive representative for the purpose of meeting and
negotiating shall fairly represent each and every employee in the
appropriate unit.
3 When interpreting EERA, it is appropriate to take guidance from cases interpreting the
National Labor Relations Act and California labor relations statutes with parallel provisions.
(Los Angeles Unified School District (1976) EERB* Decision No. 5 (*Prior to January 1, 1978,
PERB was known as the Educational Employment Relations Board, or EERB.); Fire Fighters
Union v. City a/Vallejo (1974) 12 Cal.3d 608.)

SF-CO-745-E
December 30, 2009
Page 3
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 (Chacon) (1995) PERB 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 (Violett) (1991) PERB Decision No. 889.)
The mere fact that an employee is not satisfied with an agreement is insufficient
to
demonstrate
a prima facie violation. (Ibid.)
\Vith respect to grievance representation, the Board has stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far 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.
(United Teachers
of
Los Angeles (Collins), supra, PERB Decision No. 258.)
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.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
Here, Mr. Erwin's statement
of
the charge makes clear that he is displeased with an agreement
entered into by CSEA with the District. The charge, however, does not provide sufficient facts
from which a conclusion may fairly be drawn that CSEA's conduct violates the EERA, given
the discretion that the Board, and the federal courts, have determined is appropriate for an
exclusive representative. There are no facts presented with the charge, for example, that
establish CSEA' s conduct was "without a rational basis or devoid of rational judgment."
(Rocklin Teachers Professional Association (Romero), supra, PERB Decision No. 124.)

SF-CO-745-E
December 30, 2009
Page 4
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.)
For these reasons the charge, as presently written, does not state a prima facie case. 4
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should
beprepared 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 13, 2010,5 PERB
will dismiss your charge.
If
you have any questions, please call me at the above telephone
number.
Sincerely,
Les Chisholm
Division Chief
4 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
"adetermination 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
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.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)