Palos Verdes Faculty Association (Stever) (PERB 2289E)

OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARY STEVER,
Charging Party,
V.
PALOS VERDES FACULTY ASSOCIATION,
Respondent.
Case No. LA-CO-1517-E
PERB Decision No. 2289
October 15, 2012
Appearances: 	Mary Stever, on her own behalf; California Teachers Association by Brenda E.
Sutton-Wills, Attorney, for Palos Verdes Faculty Association.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Mary Stever (Stever) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleged that the Palos Verdes Faculty
Association (Association) breached its duty of fair representation under the Educational
Employment Relations Act (EERA) 	by failing to adequately represent her in resolving
grievances filed against her employer, the Palos Verdes Unified School District (District). 	The
Board agent found that the charge failed to state a prima facie violation of the duty of fair
representation.
1
The Board has reviewed the dismissal and the record in light of Stever' s appeal, the
Association'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
1 EERA is codified at Government Code section 3540 et seq.
F

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,
section 31001 et seq.
2

The appeal in this case merely restates facts alleged in the original charge that the
Association failed to adequately represent Stever concerning her grievances filed against the
District. 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 her appeal, Stever 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, SEJU 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 June 19, 2012, the Board agent issued a letter advising Stever that the charge failed to
state a prima facie case and warning her that the charge would be dismissed unless she amended
the charge by June 29, 2012, to state a prima facie case. On June 25, 2012, Stever filed an
amended charge. Thereafter, on July 24, 2012, the Board agent dismissed Stever's charge.
Stever filed an appeal from the dismissal on August 20, 2012. The appeal includes new factual
allegations and evidence provided for the first time on appeal that all predate the dismissal letter,
including documents dated June 15, June 27, June 29 and July 16, 2012. The appeal provides no
reason why they could not have been alleged in the original charge, the amended charge, or in a
subsequent amended charge. Thus, we do not find good cause to consider these new allegations.
3

ORDER
The unfair practice charge in Case No. LA-CO-1517-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
4

OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave".';"Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2806
Fax: (818) 551-2820
July 24, 2012
Mary Stever
6600 Beachview Drive, #400
Rancho Palos Verdes, CA 90275
Re: 	Mary Steverv. Palos Verdes Faculty Association
Unfair Practice Charge No. LA-CO-1517-E
DISMISSAL LETTER
Dear Ms. Stever:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 12, 2012 and amended on June 25, 2012 (First Amended
Charge). Mary Stever (Charging Party) alleges that the Palos Verdes Faculty Association
(Association or Respondent) violated the- Educational Employment Relations Act (EERA or
Act) 	by.breaching its duty of fair representation.	I
Charging Party was informed in the attached Warning Letter dated June 19, 2012 (Warning
Letter), that the abcwe-referenced charge did not state a prima facie case .. Charging Party was
advised that, if there were any factual inaccuracies or additional facts that would correct the
deficiencies explained in that letter, she should amend the charge. Charging Party was further
advised that, unless she amended the charge to state a prima facie case or withdrew it on or
before June 29, 2012, the charge would be dismissed. On June 25, 2012, this office received
the First Amended Charge.
Facts as Amended
Sandra Goins is the Executive Director of South Bay United Teachers. Ms. Goins is also an
Association representative. 	Kathy Santarosa is the Association's President. Charging Party is
a Special Education Teacher employed by the Palos Verdes Unified School District (District).
In August 2011, Charging Party filed a grievance alleging that the District involuntarily
transferred her 	violation of the collective bargaining agreement (CBA). Ms. Goins
represented Charging Party at the grievance meeting and also proposed to the District a written
resolution., The District denied the grievance and did not offer a counterproposal. Iyis. Goins
continued to represent Charging Party at additional grievance meetings in December 2011 with
the District. The parties did not reach an agreement and the grievance currently remains
unresolved.
1 EERA is .codified at Government Code section 3540 et seq. The text of the EERA and
PERE Regulations may be found at www.per~.ca.gov.
F 	F

LA-CO-1517-E
July 24, 2012
Page 2
In December 2011, Charging Party filed a second grievance against the District alleging that
the District changed her evaluation forms in violation
of
the CBA. 	Ms. Goins represented
Charging Party at successive steps in the grievance process including making proposed written
offers to the District. However, in March 2012, the parties were unable to resolve the
gnevance.
·,
On June 13, 2012, Ms. Stever, Ms. Goins and Ms. Santarosa attended a mediation session with
District representatives. During the mediation, Ms. Santarosa advised Charging Party to take
an early retirement incentive to resolve the grievance. Ms. Santarosa informed her that this
was a "good deal" and encouraged her to accept the offer. After considering the offer,
Charging Party refused and informed Ms. Goins and Ms. Santarosa that she "would not
negotiate with snakes." After exhausting mediation, the District and Ms. Stever did not reach
an agreement
to
resolve the grievances.
Discussion
Charging Paiiy asserts that the Ms. Santarosa "breached her union duty
of
fair representation
by her continued display
of
outrageous conduct which was arbitrary, discriminatory and in bad
faith."
The attached Warning Letter explained in detail why the above-referenced charge did not
initially state a prima facie case. The Warning Letter included an explanation
of
the pleading
burden that a charging party must satisfy in order to have a complaint issue and set forth
criteria for establishing a prima facie breach
of
the duty
of
fair representation allegation.
Charging Party was informed that in order to state a prima facie breach
of
the duty
of
fair
representation, Charging Party must show through allegations
of
specific facts that the
Respondent's conduct was arbitrary, discriminatory or in bad faith. 	(Fremont Teachers
Association (King) (1980) PERB Decision No. 125; United Teachers
ofLos
Angeles (Collins)
(1982) PERB Decision No. 258.) Mere legal conclusions are not sufficient to state a prima
facie case. 	(Charter Oak Unified School District (1991) PERB Decision No. 873.)
Facts show that the Association's representative, Ms. Goins, represented Ms. Stever in two
separate grievance matters and during a mediation session with the goal to resolve both
of
Charging Party's grievances. Additionally, Ms. Santarosa was also present during the
mediation session to offer her representation.
	In
particular, Ms. Santarosa advised Charging
Party to accept an early retirement because she believed it was a "good deal." Nothing in the
charge suggests that Ms. Santarosa's conduct was arbitrary, discriminatory, or in bad faith.
Accordingly, the charge does not establish a prima facie violation.
Conclusion
Therefore, the charge is hereby dismissed based on the facts and reasons set forth in this and
the June 19, 2012 Warning Letter.

LA-CO-1517-E
July 24, 2012
Page 3
Right to Appeal
Pursuant to PERB Regulations, 2 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.
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 do_cument is also considered "filed''
v1hen
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
ff 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).)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1517-E
July 24, 2012
Page 4
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. (Cal. Code Regs., tit.
8,
§ 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
By YaronPartovi	
~
Regional Attorney
Attachment
cc: Kathy Santarosa Miraleste

OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 9 l 203-3219
Telephone: (818) 551-2806
Fax: (818) 551-2820
June 19, 2012
Mary Stever
6600 Beachview Drive, #400
Rancho Palos Verdes, CA 90275
Re: 	Mary Steverv. Palos Verdes Faculty Association
Unfair Practice Charge No. LA-CO-1517-E
WARNING LETTER
Dear Ms. Stever:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 12, 2012. Mary Stever (Charging Party) alleges that the
Palos Verdes Faculty Association (Association or Respondent) violated the Educational
Employment Relations Act (EERA or Act) 	by breaching its duty of fair representation.1
Investigation of the charge revealed the following relevant information. The Association is the
exclusive representative of certificated employees of the Palos Verdes Unified School District
(District). The District and the Association are parties to a collective bargaining agreement
(CBA). 	Charging Party is a Special Education teacher employed by the District.
Grievance Regarding Involuntary Transfer
The charge provides a timeline of events relating to a grievance Charging Party filed with the
District on August 17, 2011, alleging that the District violated the CBA by transferring her
from Palos Verdes High School to Point Vicente Elementary School. Facts show that the
Association's representative, Sandra Goins, attended a grievance meeting with Charging Party
on September 9, 2011 and proposed to the District a written resolution. The District denied the
grievance and did not provide a counter offer to the Association's resolution. Ms. Stever
alleges facts showing that her fourth-level grievance was not resolved in December 2011.
On December 13, 2011, Ms. Goins met with the District's Superintendent and made another
written proposal. On December 20, 2011, the District sent Ms. Stever an e-mail message that
included a document attachment. Since Ms. Stever could not open the attachment, she asked
Ms. Goins for assistance, but was informed that Ms. Goins was on vacation until January 3,
2012.
1 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.
F 	F

LA-CO-1517-E
June 19, 2012
Page 2
Grievance Regarding Ms. Stever's Evaluation
In early December 2011, Ms. Stever filed a grievance alleging that the District "unilaterally
changed [her] evaluation forms and process" in violation
of
the CBA. Ms. Goins and Charging
Party attended a second-level grievance meeting on January 10, 2012. The District denied the
second-level grievance. 	On January 23, 2012, Ms. Stever filed a third-level grievance.
On
February 2, 2012, Ms. Goins and Ms. Stever met with the District's Superintendent to discuss
resolving all grievances filed since August 18, 2011. Later that day (February 2, 2012), Ms.
Goins and Ms. Stever also met with other District representatives concern1ng Ms. Stever's
evaluation. On February 14, 2012, the District provided a response to the third-level
grievance.	
J\As.
Stever
v1as
not satisfied
Yvith
the response and on February 20, 2012 made a
"proposed resolution" to the District. The District denied that there were any contract
violations and, by March 21, 2012, the District and Charging Party were unable to resolve the
gnevance.
Discussion
Charging Party has alleged that the exclusive representative denied Charging Party 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 Unified District Teachers Association, CTA/NEA (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
of
this section
of
EERA, Charging Party must
show
that the Respondent's conduct was arbitrary, discriminatory, or in bad faith. 	In United
Teachers
of
Los Angeles (Collins), the Public Employment Relations 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 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
VH!)CUv,~.:,
for success are
uu.uu,.,~,
[Citations omitted.]
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.

LA-CO-1517-E
June 19,2012
Page 3
(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.)
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 "to cases in
which
th.e
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. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also Robesky
v.
Quantas
Empire Airways, Ltd. (9th Cir. 1978) 573 F.2d 1082.)
Additionally, PERB Regulation 32615(a)(5)2 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 may do so by 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.)
As presently written, nothing in the charge demonstrates how the Assocation's alleged conduct
was arbitrary, discriminatory, or in bad faith, and thus does not establish a prima facie
violation. Indeed, the facts show that Ms. Goins attended the grievance meetings with Ms.
Stever and made proposals to the District to resolve the underyling disputes in Ms. Stever's
grievances regarding alleged CBA violations. To the extent Charging Party alleges that the
Association breached its duty
of
fair representation by failing to pursue her grievances, the
Board has held that a union has the discretion whether or not to pursue a grievance. (United
Teachers
of
Los Angeles (Thomas) (2010) PERB Decision No. 2150.) Refusal to pursue a
grievance the union believes is umneritorious is not a violation, as long as the refusal is not
arbitrary, discriminatory, or in bad faith. 	(Ibid.) It is the charging party's burden to allege
facts which demonstrate that the refusal was arbitrary, discriminatory, or in bad faith. 	(Ibid.)
Where charging party failed to do so, the charge failed to establish a prima facie case for
breach
of
the duty
of
fair representation. (Ibid.) Regardless, as previously stated, nothing in
the charge demonstrates how the Association's alleged conduct was arbitrary, discriminatory,
or in bad faith, and thus the charge does not establish a prima facie violation.3
2 PERB Regulations are codified at California Code of Regulations, title 8,
3 I 00 1 et seq.
3 Additionally, PERB Regulation 32615(a)(8) requires that the charge contain "[a]
statement of the remedy sought by the charging party." The original charge fails to provide a
statement of the requested remedy. 	Charging Party should correct this deficiency should she
wish to file an amended charge.

LA-CO-1517-E
June 19, 2012
Page 4
Conclusion
4	
For these reasons the charge, as presently written, does not state a prima facie case.	
If
thereare 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
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
PE
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will dismiss your charge.
	If
you have any questions, please call me at the above telephone
number.
.
Sincerely,
Varon Partovi
Regional Attorney
yp
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
"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 	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.)