National Education Association-Jurupa (Norman) (PERB 2371E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFEREY L. NORMAN,
Charging Party,
V.
NATIONAL EDUCATION ASSOCIATION
JURUPA,
Respondent.
Case No. LA-CO-1564-E
PERB Decision No. 2371
April 18, 2014
Appearances: Law Offices of Richard Ackerman by Richard D. Ackerman, Attorney, for
Jefferey L. Norman; California Teachers Association by Robert E. Lindquist, Staff Attorney,
for National Education Association-Jurupa.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Jefferey L. Norman (Norman) of a Board agent's dismissal of
an unfair practice charge alleging that the National Education Association - Jurupa (NEA-J)
violated the Educational Employment Relations Act (EERA)1 by refusing to provide an
attorney to represent Norman in an administrative hearing concerning his dismissal as a
permanent teacher. Norman alleged that this conduct violated the duty of fair representation
and was undertaken in retaliation against him, allegedly violating EERA sections 3543.6(a),
(b), and (c) and 3544.9.
The Board has reviewed the warning and dismissal letters, and the record in light of
charging parties' appeal, the NEA-J's response thereto, and the relevant law. Based on this
review, we affirm the dismissal for the reasons discussed below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

SUMMARY OF ALLEGATIONS
Norman's Initial Unfair Practice Charge
Norman filed his initial unfair practice charge on February 4, 2013, alleging that
NEA-J, his exclusive representative, and the California Teachers Association (CTA)2 promised
that Norman would be provided with an attorney throughout the period he was placed on
administrative leave, starting November 2, 2011. The unfair practice charge was accompanied
by hundreds of e-mail messages describing events from 2008 to February 2013, including the
fact that NEA-J represented Norman in 2008 in an arbitration concerning involuntary transfer
and administrative leave.
Norman's timely allegations describe that he was promised by CTA and NEA-J that he
would be provided an attorney "throughout my being placed on administrative leave
(November 2, 2011) ... I received no representation by a union attorney in my dismissal
hearing or anytime after September 5, 2012." The charge also alleges that CT A's website
promises that CTA will provide legal representation in teacher for-cause dismissal hearings up
to a maximum of $20,000, but that Norman received nothing.
The Office of the General Counsel reviewed the voluminous e-mails and summarized
the relevant background information contained in them. On September 3, 2012, Director of
Citrus-belt Uniserve,3 Michael Kress (Kress)4 sent Norman a letter stating, in relevant part:
"You were assigned an attorney for one purpose and one purpose only [sic] to represent you at
your dismissal hearing." CTA initially provided Norman with an attorney, Marianne Reinhold
CTA is not a named respondent.
3 Citrus-belt Uniserve is not a named respondent. Norman does not describe the
relationship between Citrus-belt Uniserve and NEA-J.
4 The e-mail attachments to Norman's charge indicate that Kress was an employee of
CTA during the relevant time period.
2

(Reinhold), to represent him in the initial stages
of
Norman's disciplinary proceedings in mid
December 2011. Once the Jurupa Unified School District (District) served a notice
of
intended
disciplinary action against Norman, he refused to contact Reinhold because she was allegedly
"very angry and upset" with him. (Warning Ltr.,
p.
6.) By April 9, 2012, the "Union" had
procured another Attorney, Matt Singer (Singer), to represent Norman in the for-cause
dismissal hearing. Singer represented Norman from April 2012 until September
5,
2012, when
an administrative law judge from the Office
of
Administrative Hearings granted Singer's
request to be relieved as counsel. On August 29, 2012, Norman called Kress and asked for a
new group legal services (GLS)5 attorney to be appointed and/or that CTA pay for a private
attorney. On the same day, Singer wrote to Norman informing him that Singer believed a
conflict had arisen between the two that prevented Singer from "competently and zealously"
representing Norman. (Warning Ltr., p. 10.)
Kress refused to provide a third GLS attorney or to compensate a private non-GLS
attorney. He also stated that Norman retained the right to have CTA represent him at his
dismissal hearing.
Norman alleges he received no representation by a union attorney in his January 2013
dismissal hearing or any time after September
5,
2012. Norman was left to self-represent
(pro per) at his Skelly hearing.6 Norman also alleges that he was never given the opportunity to
GLS is not a named respondent.
6 The California Supreme Court's decision in Skelly
v.
State Personnel Board (1975)
15 Cal.3d 194,215 (Skelly) requires that prior to punitive action being taken against a
permanent employee, the public employer must provide the employee with certain due process,
including a notice of the proposed action, the reasons therefore, a copy of the charges upon
which the action is based, and the right to respond to the authority initially imposing the
discipline.
3

participate in his Skelly hearing or pre-hearing conference. Norman was left to file all
discovery requests against the District.
It
appears the California Office
of
Administrative Hearings conducted a dismissal
hearing in January 2013, and Norman was without representation at the hearing.
It
appears
that Norman was dismissed from employment with the District on or about January 18, 2013.
Office
of
the General Counsel's Warning Letter
The Office
of
the General Counsel issued a warning letter on June 5, 2013.
It
noted
that PERB would not issue a complaint based on conduct occurring more than six months
before the charge was filed.
The Office
of
the General Counsel determined that many
of
the allegations contained in
the charge concern conduct occurring more than six months before the charge was filed. 	For
example, the allegations that NEA-J failed to fulfill its promise to provide Norman with an
attorney "throughout [Norman's] administrative leave (November 2, 2011)," failed to represent
Norman at his Skelly hearing on or about March 29, 2012, and failed in its representation
of
Norman on his grievance that asserted Norman had a contractual right to call witnesses in
response to the District's summary
of
allegations against him, were considered untimely, and
PERB lacks jurisdiction to issue a complaint with respect to any
of
these untimely allegations.
Moreover, according to the Office
of
the General Counsel, even
if
allegations concerning
extra-contractual proceedings like the Skelly hearing were timely, such proceedings were
beyond the extent
of
the duty
of
fair representation.
The Office of the General Counsel determined that the charge did not include
information demonstrating that NEA-J's representation at a for-cause dismissal/suspension
hearing arises out of an obligation found in the collective bargaining agreement. Such
representation, according to the Office of the General Counsel, appeared to be beyond the
4

extent
of
the duty
of
fair representation. Similarly, according to the Office
of
the General
Counsel, the provision
of
a GLS attorney and union assistance in propounding discovery
requests appeared to be extra-contractual.
The Office
of
the General Counsel determined that the charge did not allege facts that
demonstrate NEA-J's conduct regarding contractual remedies under NEA-J's exclusive control
was arbitrary, discriminatory, in bad faith, lacked a rational basis, or was devoid
of
honest
judgment. According to the Office
of
the General Counsel, there were also no allegations
demonstrating that NEA-J failed to perform a ministerial act which completely extinguished
Norman's right to pursue his claim.
The Office
of
the General Counsel determined that the charge did not provide
information demonstrating NEA-J took an adverse action against Norman, because the
information does not demonstrate that a reasonable person under the same circumstances
would consider NEA-J's decision to cease providing representation to have an adverse impact
on Norman's employment. Therefore, according to the Office
of
the General Counsel, Norman
was warned that his initial unfair practice charge did not state a prima facie case.
The Office
of
the General Counsel did not address Norman's allegation that NEA-J had
breached EERA section 3543.6(a) (causing or attempting to cause the District to violate EERA
section 3543.5) and EERA section 3543.6(c) (refusal or failure to meet and negotiate in good
faith with a public school employer).
Norman's First Amended Charge
Norman filed a first amended charge on or about June 20, 2013. Norman alleges that
the NEA-J violated EERA sections 3543.6 (without specifying subsections (a), (b), or (c), as
he did in his initial charge) and 3544.9. He referred to proceedings governed by the California
Education Code, his "property interest" in his job and reputation, the need to equalize power
5

between employer and employee, and the difficulty in finding an affordable attorney to
represent his interests. Norman states that he is "asking for fair practices relative to what has
actually been promised in writing by CTA/NEAJ which is a collaborative effort." Norman
alleges that membership in NEA-J gives him membership in CTA, which offers legal services
that he needed and that are the subject of the present unfair practice charge. Norman's hearing
involved a "permanent dismissal" case "with all appurtenant discovery and related rights
pursuant to the California Administrative Procedures Act."
Norman states that:
"any expectations that would be developed by either the union or
the employee are governed by the representations made in the
context of the [collective bargaining agreement] CBA
relationship between the unit member, union, and employer,
which, of course, is negotiated for and by the parties to the CBA
and any appendices/[memorandum of understanding] MOUs.
The duty of fair representation arises directly out of the CBA
relationship and the promises made therein and through related
membership benefits that can only be had by virtue of
participation as a unit member in the dues-required union."
(Emphasis in original.)
Norman cites to the California court of appeal case Lane v. I. U O.E. Stationary
Engineers, Local 39 (1989) 212 Cal.App.3d 164 (Lane) in support of his allegation that "a duty
to take on representation, per the CBA relationship of the parties was undertaken voluntarily
by NEA-J and they had a duty to complete the course of representation."
Norman alleges that Singer did not allow enough notice for Norman to respond to his
motion to withdraw from representation. Norman alleges that he was left to self-represent
(pro per) for his Skelly hearing (that he was never given an opportunity to participate in), his
pre-hearing conference, and filing all discovery (e.g., interrogatories, admissions, and requests
for production) against the District.
6

Norman alleges he had his dismissal hearing without his union attorney and was
dismissed from District employment as of January 18, 2013.
NEA-J's Position Statement
NEA-J asserts several defenses to the first amended charge, including that many factual
allegations were untimely and that there were insufficient facts alleged to state a prima facie
case that NEA-J breached any provision of EERA or to draw an inference that NEA-J:
(1) caused any public school employer to violate Norman's EERA rights; (2) threatened,
interfered with or retaliated against Norman; (3) violated its duty to bargain in good faith with
Norman's employer; or (4) failed to provide Norman with fair representation. NEA-J also
alleges that Norman failed to exhaust the GLS program's procedure for appealing the
program's representation decisions and failed to comply with the participation requirements of
the GLS program, and that failure to exhaust a union's internal appeal procedures is a complete
bar to recovery.
However, NEA-J's position statement was not filed in conformance with PERB
Regulation 32620(c),7 which requires that any response to an unfair practice charge be "signed
under penalty of perjury by the party or its agent with the declaration that the response is true
and complete to the best of respondent's knowledge and belief." Consequently, we will not
consider NEA-J's response to the unfair practice charge, including facts asserted therein, in
determining this case. (United Educators of San Francisco (Banos) (2005) PERB Decision
No. 1764.)
7 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
7

Office of the General Counsel's Dismissal Letter
The Office of the General Counsel dismissed the first amended charge for many of the
reasons discussed in the warning letter. In the dismissal letter, the Office of the General
Counsel declined Norman's invitation to expand the scope of the duty of fair representation to
statutory proceedings and concluded that:
Allegations that the Union failed to fulfill promises or provide
services such as representation at Charging Party's for-cause
dismissal/suspension hearings concern conduct that is beyond the
contractual remedies under the Union's exclusive control and
may not form the basis of a PERB complaint. Again, the duty of
fair representation, as administered by PERB, does not extend to
extra-contractual conduct, despite Charging Party's desire to
extend the duty of fair representation to promises the Union
makes regarding group legal services and Charging Party's
assertion that CT A's extra-contractual conduct "should be
corrected as a matter of Collective Bargaining Agreement [CBA]
and CTA Membership rights as well as public policy."
(Dismissal Ltr., p. 4, citations omitted.)
The Office of the General Counsel dismissed both the duty of fair representation and
retaliation charges, concluding that Norman had failed to demonstrate that NEA-J's alleged
decision to cease representation in the dismissal proceedings had an adverse impact on his
employment.
Norman's Appeal
Norman's appeal of the dismissal reiterates his claim that Lane, supra,
212 Cal.App.3d 164 imposes on NEA-J a duty of fair representation in the for-cause dismissal
proceeding because NEA-J voluntarily undertook the representation. Norman also argues that
NEA-J was required to provide him with an attorney in the dismissal case because CTA
promised that it would do so.
8

NEA-J's Response to Appeal
NEA-J's response to Norman's appeal argues that the PERB Regional Attorney
properly dismissed the case because:
(1) 	Norman's charge failed to state a prima facie case
of
a violation;
(2) 	The charge concerned matters beyond the scope
ofNEA-J's
duty
of
fair
representation, since the duty arises only under contractual disputes where the
union exclusively controls the means by which an employee can seek redress for
alleged employer misconduct; and
(3) 	Norman failed to exhaust the internal union remedies provided for by CT
A's
GLS program. 8
NEA-J also argues in its response that Norman failed to perfect an appeal from the
Regional Attorney's refusal to issue a complaint because:
(1) 	The appeal failed to specify the Regional Attorney errors
of
fact;
(2) 	The appeal failed to specify the Regional Attorney's erroneous conclusions
of
law.
DISCUSSION
Untimely Claims
Because PERB may not "[i]ssue a complaint in respect
of
any charge based upon an
alleged unfair practice occurring more than six months prior to the filing
of
the charge,"
(EERA, § 3541.S(a)(l)), we affirm the Office of the General Counsel's finding that many
of
8 This is a fact that we do not consider because it was initially asserted in NEA-J's
unverified position statement.
9

the allegations contained in the charge concern conduct occurring more than six months before
the charge was filed and are therefore untimely.9
EERA section 3 541. 5(a)( 1) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) At the charge investigation stage, a charging party
bears the burden of demonstrating that the charge is timely filed. (Los Angeles Unified School
District (2014) PERB Decision No. 2359-E, p. 22; Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
Norman's allegations that NEA-J failed to fulfill its promise to provide Norman with an
attorney "throughout [Norman's] administrative leave (November 2, 2011)," failed to represent
Norman at his Skelly hearing on or about March 29, 2012, and failed in its representation of
Norman on his grievance that asserted Norman had a contractual right to call witnesses in
response to the summary of allegations, are untimely, and PERB lacks jurisdiction to issue a
complaint with respect to any of those untimely allegations.
Duty of Fair Representation Charge
PERB has long held that the duty of fair representation extends only to contractually
based remedies under the exclusive control of the exclusive representative. (Bay Area Air
Quality Management District Employees Association (Mauriello) (2006) PERB Decision
9 Although PERB will not issue a complaint based on conduct occurring more than six
months before the unfair practice charge was filed, older allegations may be considered to
provide background or characterize conduct that does fall within the statute of limitations.
(Jurupa Unified School District (2012) PERB Decision No. 2283, fn. 18, and cases cited
therein.)

No. 1808-M; Professional Engineers in California Government (Lopez) (1989) PERB Decision
No. 760-S; California State Employees Association (Parisi) (1989) PERB Decision No. 733-S
[duty of fair representation extends only where union is acting in its capacity as the exclusive
representative].) An exclusive representative owes no duty of fair representation to a unit
member unless the exclusive representative possesses the exclusive means by which such
member can vindicate an individual right, and the right in question derives from a collective
bargaining agreement. (International Union of Operating Engineers, Local 501, AFL-CIO
(Hujj) (2000) PERB Decision No. 1382-S; California State Employees' Association (Darzins)
(1985) PERB Decision No. 546-S [union's refusal to provide representation in an extra
contractual proceeding does not bar individual from seeking redress on his own]; Los Rios
College Federation a/Teachers, Local 2279, CFTIAFT, AFL-CIO (Deglow) (1993) PERB
Decision No. 992.)
In this case, Norman alleged that NEA-J violated its duty of fair representation by
failing to appoint a third attorney at the union's expense to represent him in his for-cause
permanent teacher dismissal hearing. As the Office of the General Counsel noted, Norman
alleged no facts showing that any of the procedural steps for which he allegedly sought
representation arose out of a collectively bargained agreement between NEA-J and the District.
Permanent teacher dismissal proceedings are governed exclusively by the Education Code, 10
and are beyond the scope of negotiations under EERA. (EERA section 3543.2(a) and (b);
Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269.) Therefore, it was
legally impossible for permanent teacher dismissal proceedings to be a term and condition
contained in a CBA between the District and NEA-J. NEA-J, the exclusive bargaining
representative, owed no duty of fair representation for the statutory teacher dismissal
10 Education Code section 44932 et seq.
11

procedure. We affirm the conclusion by Office of the General Counsel that Norman failed to
state a prima facie case that NEA-J violated the duty of fair representation by failing to provide
Norman with an attorney to represent him in this statutory proceeding.
Norman also alleged that CTA made promises to provide him with a GLS attorney in
his dismissal case, and that it broke those promises in violation of the duty of fair
representation. However, CTA was not named as a respondent to Norman's unfair practice
charges. Even if it had been, the charge would still have to be dismissed because PERB has
held that CTA is not the exclusive representative for certificated bargaining units, and
therefore owes no duty of fair representation. (California Teachers Association and Oakland
Education Association (Welch) (2006) PERB Decision No. 1850 (Welch), pp. 1-2, Proposed
Dec., p. 2.) Norman's allegations against CTA, GLS, Citrus-Belt Uniserve, or any entity other
than NEA-J, do not satisfy the principal element of the prima facie violation of the duty of fair
representation, namely, that the charged entity is the exclusive representative of a bargaining
unit in which Norman is a member.
To the extent that Norman's unfair practice charge can be read to allege that CTA
breached a contract made to its members to provide legal representation in teacher dismissal
cases, this claim must also be dismissed. As noted above, CTA was not named as a party to
Norman's unfair practice charge, and is not a party to the CBA. Any alleged contract to
provide legal services to members is not part of a collective bargaining agreement negotiated
between the District and NEA-J, but instead an alleged promise made only to CTA members.
PERB does not have jurisdiction to enforce such contracts. PERB's jurisdiction over employee
organizations is confined to remedying alleged violations of EERA, including EERA
sections 3543.6 and 3544.9. Nothing in EERA requires employee organizations to offer
members economic benefits such as legal services, and nothing in EERA envisions PERB
12

enforcing such alleged individual contracts between an employee organization and its
members, especially where the employee organization is not the exclusive representative.
(See, e.g., Valley of the Moon Teachers Association, CTAINEA (McClure) (1996) PERB
Decision No. 1165, Warning Ltr., p. 5 [CTA group legal services manual requiring that a unit
member either chose an attorney affiliated with that program or waive his or her right to an
attorney from CT A does not violate the duty of fair representation].)
In order to state a prima facie violation of the duty of fair representation, Norman must
show that NEA-J's conduct was arbitrary, discriminatory, or in bad faith. (United Teachers of
Los Angeles (Collins) (1982) PERB Decision No. 258 (Collins).) As stated by the Board in
Collins:
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.
(Id., Dismissal Ltr., p. 5; citation 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.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
emphasis in original; quoting Rocklin Teachers Professional Association (Romero) (1980)
PERB Decision No. 124.)
13

Norman has alleged no facts that demonstrate that any action, or lack of action NEA-J
took was without rational basis or devoid of honest judgment.
Norman alleges no facts that NEA-J, the only named respondent, denied representation
to Norman at any stage of his dismissal-related procedure. Norman only alleges facts
indicating that CTA, Citrus-belt Uniserve, and their respective employees or agents made and
broke various promises to provide Norman with representation with regard to his dismissal.
However, Norman does not allege any specific facts indicating that NEA-J or NEA-J President
John Vigrass (Vigrass) made or broke such promises, only unsupported conclusions to this
effect.
Norman alleges that Vigrass directed Norman to CTA and GLS to seek representation
for his dismissal-related proceedings. However, Norman has not alleged that any of the above
referenced entities were alter egos or agents of each other. I I Vigrass' action would indicate
that he was specifically refraining from making any promises of representation on NEA-J' s
behalf by directing him to inquire about representation from entities other than NEA-J.
Norman has therefore failed to allege a prima facie violation ofNEA-J's duty of fair
representation.
On appeal Norman reiterates his claim that Lane, supra, 212 Cal.App.3d 164
establishes that NEA-J has a duty of fair representation in Norman's for-cause dismissal case
because it voluntarily undertook to represent him in that proceeding. PERB, however, has
never adopted this theory as the basis for an unfair practice charge. (Service Employees
International Union, Local 1021 (Horan) (2011) PERB Decision No. 2204-M; Welch, supra,
PERB Decision No. 1850; see also, California Union of Safety Employees (John) (1994) PERB
11 The warning and dismissal letters make reference to "Union Citrus-belt Uniserve."
However, the facts alleged in the charge do not indicate what relationship exists between
NEA-J and Citrus-belt Uniserve.
14

Decision No. 1064-S, p. 11, fn. 5 [reversing in part proposed decision finding breach of duty
based on Lane, supra, 212 Cal.App.3d 164 theory, the Board found it unnecessary "to
determine whether a Lane duty of fair representation attaches to union representation in extra
contractual services"].) Rather, PERB has viewed the court's decision in Lane as implicating a
cause of action in state court outside PERB' s jurisdiction. (Oakland Education Association
(McKee!) (2000) PERB Decision No. 1383; California State Employees Association (Cohen)
(1993) PERB Decision No. 980-S.)
We need not decide here whether to adopt the Lane, supra, 212 Cal.App.3d 164 theory
in this case, because Norman has failed to demonstrate that his exclusive representative, as
opposed to CT A, undertook the representation, or made the decision not to appoint a third
attorney to represent Norman.
Union Activity To Influence District Charge
The Office of the General Counsel did not address Norman's allegation from his .
original charge that NEA-J had violated EERA section 3543.6(a), possibly because Norman's
first amended charge dropped any reference to specific subsections ofEERA section 3543.6.
Even if Norman had still intended to invoke subsection (a) of EERA section 3543.6, we find
the Office of the General Counsel's omission to be harmless error. Norman has failed to allege
any facts that NEA-J violated EERA section 3543.6(a) by causing or attempting to cause the
District to violate EERA section 3543.5. Additionally, Norman's appeal of dismissal fails to
object to the Office of the General Counsel's lack of consideration of this charge. We
therefore dismiss this allegation.
Retaliation Charge
The Office of the General Counsel dismissed this claim because the charge did not
provide information demonstrating that a reasonable person under the same circumstances
15

would consider NEA-J's decision to cease providing representation to have an adverse impact
on Norman's employment. We affirm the dismissal
of
this claim, but for different reasons than
those relied on by the Office
of
the General Counsel.
To establish a prima facie case
of
discrimination or retaliation in violation
of
EERA
section 3543.5(a), the charging party must show that: (1) the employee exercised rights
guaranteed by EERA; (2) the employer had knowledge
of
the employee's exercise
of
those
rights; (3) the employer took action against or adverse to the interest
of
the employee; and
(4) the employer acted because
of
the employee's exercise
of
the guaranteed rights. (Novato
Unified School District (1982) PERB Decision No. 210 (Novato).)
In
AFT
Part-Time Faculty United, Local 6286 (Peavy) (2011) PERB Decision
No. 2194 (Peavy), the Board applied the Novato, supra, PERB Decision No. 210 test to an
allegation that an employee organization retaliated or discriminated against an employee:
In analyzing allegations
of
discrimination that also violate the
duty
of
fair representation, the Board follows the principles
applicable for violations
of
EERA section 3543.5(a), a parallel
provision prohibiting employer interference and reprisals.
(Los Rios College Federation ofTeachers/CFTIAFT/Local 2279
(Deglow) (1999) PERB Decision No. 1350 (Los Rios College
Federation a/Teachers); Service Employees International Union,
Local 99 (Kimmett) (1979) PERB Decision No. 106, at p. 13.) In
order to prevail on a discrimination theory, the charging party
must establish: (1) the employee exercised rights guaranteed by
EERA; (2) the employee organization had knowledge
of
the
employee's exercise
of
those rights; (3) the employee
organization took adverse action against the employee; and
(4) the employee organization took the action because of the
exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 at pp. 5-6 (Novato).)
In determining whether evidence of adverse action is established,
the Board uses an objective test and will not rely upon the
subjective reactions of the employee. (Palo Verde Unified School
District (1988) PERB Decision No. 689.) The test is not whether
the employee found the employee organization's action to be
adverse, but whether a reasonable person under the same
circumstances would consider the action to have an adverse
16

impact on the employee's employment. (Newark Unified School
District (1991) PERB Decision No. 864.)
(Id. at pp. 12-13, emphasis in original.)
Prior to the Peavy, supra, PERB Decision No. 2194 decision, the Board held in
California Union
of
Safety Employees (John) (1994) PERB Decision No. 1064-S that an
employee organization's refusal to represent an employee before the State Personnel Board
because
of
his support for an allegedly rival union satisfies the adverse action element
of
a
discrimination prima facie case. (Id. at pp. 12-13.)
We assume, arguendo, that withdrawing legal representation from an employee
on
the
eve
of
his dismissal hearing is an adverse action.
However, under the facts alleged here, Norman has still failed to plead two
of
the prima
facie elements
of
a retaliation/discrimination charge. He did not indicate that he engaged in
any protected conduct for which NEA-J allegedly retaliated against him. Nor do the
allegations show facts tending to show a retaliatory motive on the part ofNEA-J. On these
grounds, we dismiss Norman's allegation that NEA-J violated EERA section 3543.6(b).
Failure to Bargain In Good Faith Charge
Although the Office
of
the General Counsel did not specifically address charging
party's allegation that NEA-J violated EERA section 3543.6(c), this is harmless error, since
Norman lacked standing to file a charge under this section. (See, e.g., Alameda County
Medical Center (2004) PERB Decision No. 1620-M, p. 3). We therefore dismiss this claim.
ORDER
The unfair practice charge in Case No. LA-CO-1564-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Huguenin and Banks joined in this Decision.
17