California School Employees Association and its Chapter 130 (Simpson) (PERB 1550E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RITA ANN SIMPSON,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 130,
Respondent.
Case No. LA-CO-1087-E
PERB Decision No. 	1550
October
	17,
	2003
Appearances: Sherri L. Honer, Attorney, for Rita Ann Simpson; California School Employees
Association by Douglas Herbek, Attorney, for California School Employees Association & its
Chapter
13
0.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Rita Ann Simpson (Simpson)
of
a Board agent's dismissal (attached)
of
her unfair practice charge. The charge alleges that the California School Employees
Association & its Chapter 130 (CSEA) denied Simpson the right to fair representation
guaranteed by Section 3544.9
of
the Educational Employment Relations Act (EERA)1
and
thereby also violated Section 3543.6(b).
1 BERA is codified at Government Code section 3540 et seq. All statutory references
are to the Government Code. 	Section 3544.9 states:
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.
EERA Section 3 543 .6(b) states, in part:
It shall be unlawful for an employee organization to:

After reviewing the entire record in this case, the Board dismisses Simpson's charge based on
the discussion below.
BACKGROUND
According to the charge, Simpson was a bus driver for the Fullerton School District
(District) and in the bargaining unit represented by CSEA. On February 2, 2000, she was
placed on administrative leave pending an investigation into her alleged intimidating behavior
toward other employees. 	Simpson contacted CSEA President Daniel Smith (Smith) for
assistance. Initially, he did not return her calls and later indicated that he knew nothing about
the charges against her.
Upon Simpson's return to work on March 6, 2000, she received a notice
of
proposed
disciplinary action for insubordination and threatening behavior. The notice was amended
March 14, 2000, to include allegations
of
dereliction
of
duty and dishonesty, and again four
days later for willful violation
of
rules. Simpson states in her charge that she attempted "to
secure representation by the union and its representatives." However, because Simpson could
not secure representation from Smith, she hired private counsel to challenge her dismissal
before the employer's personnel commission (commission). In a letter, dated March 15, 2000,
CSEA confirmed that it was not representing Simpson in the disciplinary proceedings.
In July and August 2001, a hearing was held before the commission. At the hearing,
Smith testified that in December 1999, he had encouraged another employee, Teri Gonzalez
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
2

(Gonzalez), to go to management with her concerns about Simpson. According to Simpson,
this was the first time she became aware of Smith's "role" in the complaint filed by Gonzalez
against her.
According to the charge, Simpson discovered during the commission hearings that
Smith had encouraged Gonzalez to file a complaint with the employer. 	Simpson alleges that
Smith did so without providing her any opportunity to defend herself or explain her side of the
story. At the hearing, Smith also testified, "I could not handle the problem because it was over
my head." Without providing details, the charge states that Smith testified "against" Simpson
at the hearing, and made himself available to do so at a workers' compensation hearing.
The commission eventually exonerated Simpson. The unfair practice charge seeks
reimbursement for attorney fees that Simpson incurred during the commission proceedings.
BOARD AGENT'S DISMISSAL
The Board agent dismissed the charge, in part, because the alleged unfair practice
occurred more than six months prior to the filing of the charge. Specifically, Simpson was
notified on March 15, 2000, that CSEA would not represent her during the disciplinary
proceedings. However, Simpson did not file her charge until January 14, 2002. Simpson
argued that her charge was not time-barred because she did not discover the full extent of
Smith's involvement until the July 19, 2001, hearing. The Board agent agreed that the "new
information" Simpson discovered during the July 19, 2001, hearing fell within the six-month
limitations period.
Although part of the charge was found to be timely, the Board agent dismissed the
remainder of the charge on the basis that Simpson had failed to demonstrate that CSEA,
through Smith's actions, violated the duty of fair representation. The Board agent considered
Simpson's allegation that Smith had advised another CSEA member to file a complaint against
3

her, yet Smith told Simpson he had no knowledge about the complaint. Smith also failed to
represent Simpson during the disciplinary process and he testified "against" Simpson at the
commission hearing.
	In
addition, the Board agent considered Simpson's allegations that Smith
had not performed his duties as described in CSEA training modules and had breached his
"fiduciary duty" toward her. After considering all the allegations, the Board agent concluded
that Smith's conduct, even
if
true, did not demonstrate sufficient "arbitrary, discriminatory or
bad faith" representation as to demonstrate a breach
of
the duty
of
fair representation.
Accordingly, the Board agent dismissed Simpson's charge.
SIMPSON'S APPEAL
In her appeal, Simpson argues that the Board agent erred in dismissing her charge.
Simpson argues that the Board agent should have focused on Smith's failure to follow his
CSEA training which required him to investigate the allegations against Simpson. Further,
Simpson argues that Smith ignored his own admitted practice
of
mediating disputes between
employees. Finally, Simpson points to the allegation that Smith instructed another employee
to file a complaint against Simpson and accompanied that employee to the supervisor's office
to ensure the complaint was lodged. Taken in total, Simpson argues, Smith's actions clearly
violated his CSEA training as well as his duty to Simpson as her union representative.
CSEA'S RESPONSE
CSEA argues that Simpson's charge fails to state a prima facie case
of
the breach
of
the
duty
of
fair representation. In addition, CSEA contends that Simpson has inappropriately
added new factual allegations to her appeal without good cause being shown. Further, CSEA
contests the factual allegations as set forth by Simpson. CSEA asserts that Smith did not
initiate the proceedings against Simpson, but merely suggested to another employee that she
take her complaint about Simpson to her supervisor. CSEA argues that Simpson has not
4

demonstrated that Smith had facts regarding the District's investigation in February 2000,
when he told her he had no knowledge
of
it. Finally, CSEA argues that Smith's testimony at
the commission hearing was not a violation
of
the duty
of
fair representation and that
CSEA's
case-handling manual is inapplicable to this case.
DISCUSSION
Duty
of
Fair Representation
Simpson alleges that CSEA violated its duty
of
fair representation by refusing to
represent her at the commission hearing in July 2001. This charge must be dismissed, because
the duty
of
fair representation does not apply in proceedings before the commission. This is
because the duty
of
fair representation only applies to proceedings where representation is
exclusively provided by the union.
The duty
of
fair representation applies
to
negotiation and administration
of
the labor
agreement. (Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106.) An exclusive representative violates this obligation when its conduct
toward a bargaining unit member is "arbitrary, discriminatory, or in bad faith" in contract
negotiations or grievances involving contract enforcement. (Rocklin Teachers Professional
Association (Romero) (1980) PERB Decision No. 124.) The duty
of
fair representation arose
from judicial concerns that the union's status as the exclusive representative could be abused.
(Steele v. Louisville and Nashville Railroad (1944) 323 U.S. 192 [65 S.Ct. 226].) In Vaca
v.
Sipes (1967) 386 U.S.
171 [87 S.Ct. 903], the Supreme Court specifically recognized that the
source
of
the duty
of
fair representation was the union's status as exclusive representative.
Accordingly, the duty
of
fair representation requires that "a union represent fairly the interest
of all bargaining-unit members during the negotiation, administration and enforcement
of
5

collective bargaining agreements". (Electrical Workers (IBEW)
v.
Foust (1979) 442 U.S. 42
[99 S.Ct. 2121].)
Following private sector precedent, PERB has long held that the duty
of
fair
representation is limited to negotiations and contractually based remedies under the union's
exclusive control. (Los Angeles City and County School Employees Union, Local 99
(Morgan) (1987) PERB Decision No. 645 (charge alleging poor representation before
personnel commission dismissed).) There is no duty
of
fair representation owed a bargaining
unit member unless the union "possesses the exclusive means by which such employee can
obtain a particular remedy." (San Francisco Classroom Teachers Association, CTA/NEA
(Chestangue) (1985) PERB Decision No. 544 (duty not extended to mental illness proceeding
under the Education Code); California Union
of
Safety Employees (John) (1994) PERB
Decision No. 1064-S (CAUSE) (no duty
of
fair representation in a disciplinary matter before
the State Personnel Board).) One court has interpreted the Meyers-Milias-Brown Act
(MMBA)2 to impose a "duty akin" to the duty
of
fair representation
if
the union voluntarily
chooses to represent an employee in a forum that does not require exclusive representation by
the union. (Lane v. I.U.O.E. Stationary Engineers (1989) 212 Cal. App.3d 164 [260 Cal.Rptr.
634] (alleged poor representation before civil service commission) (Lane).)3 However, PERB
has interpreted Lane to be limited to that situation in which "the union had affirmatively
undertaken representation" and not in a case in which the union considered and rejected
representation. 	(CAUSE.)
2 The MMBA is codified at Government Code section 3500 et seq.
3 As noted below, the Board has not yet had the opportunity to consider whether the
"duty akin" doctrine should be extended beyond the MMBA.
6

Accordingly, the general rule is that when bargaining unit members are free to represent
themselves or hire an attorney to pursue their claim, the union is not bound
by
the duty
of
fair
representation. Here, the record reveals that Simpson was successfully represented before the
commission by a non-CSEA attorney. Thus, CSEA did not control the exclusive means
by
which Simpson could represent herself before the commission. Under the PERB precedent
discussed above, the duty
of
fair representation does not apply in this situation.
Simpson also alleges that CSEA violated its duty
of
fair representation by choosing to
represent Gonzalez in Gonzalez' complaint against Simpson and by allowing Smith to testify
against Simpson at the commission hearing in July 2001. In essence, Simpson alleges that
CSEA violated its duty
of
fair representation by choosing to represent one bargaining unit
member over another. Simpson's appeal implicitly urges the Board to extend the "duty akin"
doctrine recognized in Lane to EERA and to impose some sort
of
a duty on the union
when
it
voluntarily chooses to represent one unit member to the detriment
of
another. Although there
are strong arguments in favor
of
such an extension, the Board declines Simpson's invitation
because, even assuming that her allegations are timely4, Simpson has failed to allege facts to
support her conclusory allegations. 	(PERB Reg. 32615(a)(5).5)
4 Any alleged unfair practices that occurred prior to July 2001, must be dismissed as
untimely. Simpson was notified in writing on March 15, 2000, that CSEA would not represent
her in the disciplinary proceedings. Accordingly, any charge arising from those facts should
have been filed by September 16, 2000. (EERA sec. 3541.S(a)(l).)
5 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001, et. seq. Regulation 32615(a)(5), states, in part:
(a) A charge may be filed alleging that an unfair practice or
practices have been committed. The charge shall be in writing,
signed under penalty of perjury by the party or its agent with the
declaration that the charge is true, and complete to the best of the
charging party's knowledge and belief, and contain the following
information:
7

First, despite being provided an opportunity, Simpson never articulates how Smith
testified "against" her. In her brief, Simpson argues that Smith "voluntarily" testified against
her. However, Simpson admits in a footnote that she had in fact subpoenaed Smith herself.
Having subpoenaed Smith, Simpson cannot complain that the District took the opportunity to
place him on the stand.
Further, the facts do not support Simpson's allegation that CSEA chose to "represent"
Gonzalez. The original and amended charges merely allege that Smith suggested to Gonzalez
that she could take her concerns to management. There is no evidence CSEA provided any
representation to Gonzalez. Again, Simpson was provided an opportunity to cure this defect
by filing an amended charge with more facts. However, Simpson's amended charge fails to
provide any more facts about CSEA's "representation"
of
Gonzalez. Thus, Simpson has failed
to allege facts demonstrating that CSEA provided representation to Gonzalez or that CSEA
advocated against her before the commission. Accordingly, Simpson's charge must be
dismissed.
ORDER
The unfair practice charge in Case No. LA-CO-1087-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neirna joined in this Decision.
(5) A clear and concise statement of the facts and conduct
alleged to constitute an unfair practice
8

•\	
ST
ATE
OF CALIFORNIA 	1 	( 	' 	GRAY DAVIS, Governor
--------------
	,;,-------------
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 I 8th Street
Sacramento,
CA
95814-4174
Telephone: (9 l 6) 327-8384
Fax: (916) 327-6377
April f I, 2002
Rita Ann Simpson
1454 W. Orangethorpe Avenue
Fullerton,
CA
92833
Re: 	Rita Ann Simpson v. California School Employees Association & its Chapter 130
Unfair Practice Charge No. LA-CO-1087-E
DISMISSAL LETTER
Dear Ms. Simpson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 14, 2002. As Charging Party, you allege that the
California School Employees Association & its Chapter 130 violated the Educational
Employment Relations Act (EERA)1 by breaching its duty
of
fair representation.
I indicated to you in my attached letter dated March 11, 2002, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which 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 March 21, 2002, the charge would be dismissed. I
spoke with you by phone on March 19, 2002, and you requested a one week extension to file
an amended charge. I agreed and extended the deadline for amending this charge until March
28, 2002. I received the amended charge on April 2, 2002.
In brief the original charge alleges that CSEA through Chapter 130 President Daniel Smith
breached its duty
of
fair representation by failing to assist you throughout the disciplinary
process, 2 by breaching your right to confidentiality and by testifying against you at the
disciplinary hearing.
The amended charge contains the following information. On July 19, 2001, during a hearing
before the District's Personnel Commission, Mr. Smith testified against you and during his
testimony you discovered the following information.3 In December 1999, Mr. Smith met with
Teri Gonzalez and another employee to discuss complaints against you. Although Mr. Smith
1 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 www.perb.ca.gov.
2 In February 2000, you were piaced on administrative leave due to complaints brought
against you by co-workers.
3 You are unaware of whether or not Mr. Smith was subpoenaed to testify before the
Personnel Commission.

LA-CO-1087-E
April 11, 2002
Page 2
(
met with and discussed the complaint with Ms. Gonzalez, he failed to meet with you regarding
the complaints. In February 2000, when you asked Mr. Smith about the complaints against
you, he denied any knowledge
of
them. However, you discovered during his testimony in July
2001 that this statement was untrue. Mr. Smith testified that he had a duty to mediate when a
problem arose between bargaining unit members. When asked why he had not tried to resolve
the dispute between you and Ms. Gonzalez, Mr. Smith testified "
...
I could not handle this
problem because it was way over my head."
In your amended charge you make the following allegations against Mr. Smith. First,
youallege that Mr. Smith acted in an arbitrary manner by failing to provide a rational basis
or
explanation for his lack ofrepresentation on your behalf. Second, you allege that Mr. Smith
breached the duty
of
fair representation
by
testifying against you. Third, you allege that CSEA
through Daniel Smith violated CSEA's Modules 301 and 302 as they relate to and define the
"Duty
of
Fair Representation.',4 These Modules are used by CSEA during the training
of
jobstewards. Fourth, you assert that Mr. Smith violated CSEA policy 606
by
not requesting
assistance from the State Association with the complaints in late 1999 and early 2000.	
In
the
amended charge, you state that policy 606 provides that
if
a chapter refuses to provide
assistance and/or request assistance for a member confronted by disciplinary action from the
District, the member may appeal the chapter's refusal and request assistance from the State
Association. 5 Finally, you argue that Mr. Smith's decision to testify against you was a breach
of
the union's fiduciary duty.
On April 9, 2002, at my request you faxed me a copy
of
a letter sent to you
by
CSEA Labor
Relations Representative William A. Lokay on March 15, 2000. Therein Mr. Lokay states
because you hired outside counsel to represent you in your disciplinary proceedings,
CSEAwas disassociating itself from any and all disciplinary representation efforts on your behalf.
Discussion
As stated in the March 11, 2002 warning letter, BERA section 3541.S(a)(l) prohibits PERBfrom 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
In
your amended charge you cite the Modules as defining the Duty
of
Fair
Representation as:
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. (emphasis in
amended charge.)
5 You did not appeal to the State Association.

LA-CO-1087-E
April 11, 2002
Page 3
(
the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.)
The charging party bears the burden of demonstrating that the charge is timely filed.
(Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
(Department ofinsurance) (1997) PERB Decision No. 1197-S.) The Board has found that in
duty of fair representation cases, a claim accrues when the Charging Party, in the exercise of
reasonable diligence, knew or should have known that further assistance from the union was
unlikely. 	(California School Employees Association (LaFountain) (1992) PERB Decision
No. 925.)
Because this charge was filed on January 14, 2002, only alleged misconduct of which you
became aware on or after July 14, 2001 meets the requisite statute oflimitations. CSEA sent
you a letter on March 15, 2000, stating that it would no longer represent you. Thus you had six
months from that day, until September 15, 2000, to argue that CSEA's lack ofrepresentation of
you during the disciplinary process was violative of its duty of fair representation. Because
you filed this charge on January 2002, this allegation is outside the requisite statute of
limitations and must be dismissed.
However, the new information you acquired during the July 19, 2001 hearing is within the six
month statute of limitation.
You allege that the exclusive representative denied you the right to fair representation
guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b). 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.]
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a Charging Party:
" ... must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
As stated in the March 11 letter, you have not presented any facts to demonstrate that Mr.
Smith's meeting and discussing matters with Ms. Gonzalez in December 1999 was "arbitrary,
discriminatory or in bad faith." In addition, the fact that he met with Ms. Gonzalez and then

LA-CO-1087-E
April 11, 2002
Page4
told you he knew nothing about the complaint does not in and
of
itself demonstrate bad faith
on Mr. Smith's part and is thus not violative
of
the union's duty
of
fair representation.
In addition, you allege that Mr. Smith acted in an arbitrary manner by failing to provide a
rational basis or explanation for his lack
of
representation on your behalf and that his
testimony about being over his head is indicative
of
his arbitrary actions. 	As stated above in
order to state a prima facie case
of
arbitrary conduct,
as
Charging Party ·you must at a
minimum include an assertion
of
sufficient facts from which it becomes apparent how
or
in
what manner CSEA's action or inaction was without a rational basis or devoid
of
honest
judgment. You do not assert any facts to show how Mr. Smith's inaction, and that his being in
over his head, was without a rational basis or devoid
of
honest judgment. Thus you have not
shown that Mr. Smith's lack
of
an explanation violated CSEA's duty
of
fair representation.
Further, the fact that Mr. Smith testified against you in July 2001 does not in and
of
itself
breach CSEA' s duty
of
fair representation. It is not clear whether Mr. Smith testified against
you voluntarily or because he was subpoenaed to testify. You present no facts to demonstrate
that Mr. Smith's testifying against you was done in bad faith in violation
of
CSEA's duty
of
fair representation.
Again as stated in the March
11
warning letter, PERB Regulation 32615(a)(5) 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." Thus, 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.)
You allege that Mr. Smith's violation
of
CSEA's training modules and CSEA policy 606
demonstrate a breach
of
the duty
of
fair representation. For a determination
of
whether or not
CSEA violated the duty
of
fair representation under EERA and PERB case law, the training
modules do not provide an independent standard. Thus as Charging Party it is your burden to
demonstrate how Mr. Smith did not follow these modules and how that action by Mr. Smith
was "arbitrary, discriminatory or in bad faith." You do not do so here. Instead you state the
legal conclusion that he violated the modules which in tum violated CSEA's duty
of
fair
representation, which is insufficient to state a prima facie violation
of
EERA. As for CSEA's
policy 606, you note that under the policy that a member whose chapter refuses to provide
assistance in a disciplinary action may appeal this decision to the State Association. You made
no such appeal and therefore have not shown "how" or "what" Mr. Smith did to violate the
policy and CSEA's duty of fair representation.
Finally you allege that CSEA violated its fiduciary duty. However, you do not provide
sufficient facts to demonstrate how CSEA violated this duty. Nor have you demonstrated the
"who, what, when, where and how" the breach of a fiduciary duty violates CSEA's duty of fair
representation. You do not satisfy the PERB 's requirement that an unfair practice charge

LA-CO-1087-E
April 11, 2002
Page 5
(
include a clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice.
Therefore, I am dismissing the charge based on the facts and reasons contained above and in
my March 11, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,6 you 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. (Regulation 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 be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed
by
certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
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. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to theproceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
6 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1087-E
April 11, 2002
Page 6
( 	C
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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. (Regulation 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,
ROBERT THOMPSON
General Counsel
Marie A. Nakamura
Regional Attorney
Attachment
cc: Douglas Herbek
MAN

STATE
OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
GRAY
DA
VIS, Governor
March 11, 2002
Rita Ann Simpson
1454 W, Orangethorpe A venue
Fullerton, CA 92833
Re: 	Rita Ann Simpson
v.
California School Employees Association & its Chapter 130
Unfair Practice Charge No. LA-CO-1087-E
WARNING LETTER
Dear Ms. Simpson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 14, 2002. As Charging Party, you allege that the California
School Employees Association & its Chapter 130 violated the Educational Employment
Relations Act (EERA) 1 by breaching its duty
of
fair representation.
Facts
You worked as a bus driver for the Fullerton School District and were a member
of
CSEA.
On February 2, 2000, you were placed on administrative leave. The entirety
of
the letter
informing you
of
the administrative leave states:
Effective immediately, you are placed on Paid Administrative
Leave until further notice while an investigation is conducted
concerning alleged intimidation
of
other Transportation
Department employees.
You are hereby directed to remain off District premises and to
refrain from contact with District employees at the work site
during the course
of
the investigation.
When you were placed on administrative leave, no one explained to you what was meant by
"intimidation
of
other Transportation Department Employees." No union representative was
present when you received the letter.
After being placed on leave, you attempted to call CSEA Chapter 130 President Daniel Smith
for assistance. Initially he did not return your phone calls. 	When you did speak with him he
was "cold" towards you and indicated that he knew nothing about the charges against you.
1 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 www.perb.ca.gov.

LA-CO-1087-E
March 11, 2002
Page 2
(
Because you had been placed on sedatives by your doctor, you were unable to return to work
for a month. During the month you were taken
off
of
work by the doctor, no one from CSEA
contacted you.
On March 6, 2000, you returned to work. After your morning bus route, you found a
document in your in-box entitled Notice
of
Proposed Disciplinary Action. 	The notice alleges
that you violated the following rules:
160.1.4.3 Insubordination-Knowingly refusing to perform lawful
and reasonably assigned duties.
160.1 .4.13 Abusive or threatening behavior towards a pupil, a
member
of
the public, another District employee, or a District
official.
The notice sets forth three charges against you. The first charge alleges that on December 16,
1999, you spoke with Bus Driver Terry Gonzalez and that you became agitated and upset
because Ms. Gonzalez wanted to drop one
of
her bus routes. Ms. Gonzalez felt intimidated by
your aggressive and threatening response. The second charge alleges that on January 27, 2000,
you confronted substitute Bus Driver Rosalva Cruz2 and in a "threatening" manner you
demanded to know how many hours Ms. Cruz was working. Ms. Cruz stated that she felt
harassed and intimidated by your conversation and that she felt as though you were accusing
her
of
"stealing someone else's hours." The third charge alleges that on January 31, 2000, Ms.
Gonzales was speaking with Bus Driver Homer Sanchez and that you allegedly said in a loud
voice, "Homer, have you heard anything about the senior drivers treating the new drivers
badly?" Ms. Gonzalez felt uncomfortable and intimidated by the conversation.
The remainder
of
the notice addresses "Past Remediation," "Your Right To Representation,"
and your "Right To Hearing Before Superintendent."
On March 14, 2000, the District provided you with an Amended Notice
of
Proposed
Disciplinary Action. The amended notice alleges that you violated two additional rules:
160.1.4.4 Inattention to or Dereliction
of
Duty-A pattern
of
continued or dereliction in the performance of assigned duties.
160.1.4.20 Dishonesty, theft, willful misuse, destruction or
mishandling
of
District property.
The amended notice contains an additional alleged charge. On March 7, 2000, you were
unable to locate the radio/cell phone assigned to you by the department. The amended notice
states "[i]t is your responsibility to ensure that the phone is secured at all times."
In your charge you state that Ms. Cruz was not a member of CSEA.

LA-CO-1087-E
March 11, 2002
Page 3
On March 18, 2000, the District provided you with a Second Amended Notice
of
Proposed
Disciplinary Action wherein the District alleges that you violated the following additional rule:
160.1.45 Willful and persistent violation
of
the Education Code,
of
rules and Regulations or procedures adopted by the District or
a department when such procedures are made known to the
employee in writing.
The second amended notice contains what the District characterizes as six additional charges.
However, the six charges all relate to one incident on April 26, 2000 when you allegedly
backed into a fence and broke the left rear tum signal and bulb
of
the bus you were driving.
You reported the incident to Services Mechanic Jon Andrews, who replaced the lens. The
second amended notice proceeds to explain that you did not follow the proper procedure for
reporting accidents and that because you had more than one preventable accident a
Performance Improvement Plan was developed for you.
Although you attempted to work in March and April 2000, by May 2000 your doctor removed
you from work. After your sick leave and vacation time were exhausted, you resigned from
the District in February 2001. Throughout the disciplinary process you received no assistance
from Mr. Smith or CSEA.
On July 19, 20, and August 9 and 15, 2001, a hearing was held before the District's Personnel
Commission. On July 19, Mr. Smith testified that he had met with Ms. Gonzalez in December
1999 and that he had encouraged her to go to management and file charges against you. 	This
testimony contradicts Mr. Smith's statements to you in February 2000 that he was unaware
ofthe charges against you. He also testified that during a meeting with Ms. Cruz he had
apologized on your behalf. Prior to July 2001, you were unaware
of
either
of
these
conversations.
After the hearing the Personnel Commission found that the testimony and evidence presented
by the District failed to meet the District's burden
of
proof and therefore all charges against
you were dropped.
Article 24.1
of
the collective bargaining agreement states in part that "[p ]rocedures for
Disciplinary and Action and Appeal are governed by Chapter 160
of
the Personnel
Commission's Rules and Regulations
of
the Classified Service."
Discussion
Although you allege that CSEA through Daniel Smith breached its duty
of
fair representation
by failing to assist you throughout this process, by breaching your right to confidentiality and
by testifying against you at the hearing, this charge fails to establish that CSEA breached its
duty of fair representation.
First, EERA section 3541.5(a)(l) 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

LA-CO-I 087-E
March 11, 2002
Page 4
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. 1024; State
of
California (Department ofinsurance) (1997) PERB Decision No.
1197-S.) The Board has found that in duty
of
fair representation cases, a claim accrues when
the Charging Party, in the exercise
of
reasonable diligence, knew or should have known that
further assistance from the union was unlikely. (California School Employees Association
(Lafountain) (1992) PERB Decision No. 925.)
Because this charge was filed on January 14, 2002, only alleged misconduct
of
which you
became aware on or after July 14, 2001 meets the requisite statute
of
limitations. You allege
that CSEA breached its duty
of
fair representation when it failed to assist you throughout the
disciplinary proceedings. You were originally placed on leave in February 2000, which was
almost two years prior to the filing
of
this charge. You requested assistance from CSEA and
Mr. Smith soon after you were placed on leave. Although you requested assistance from Mr.
Smith in February 2000, assistance from Mr. Smith and CSEA was not forthcoming. 	You did
not request further assistance from the union. By February 2001, when you retired from the
District and had not yet received any assistance from CSEA, you should have known that
further assistance from the union was unlikely. You had six months from February 2001 to file
a charge based on that allegation. You have not met your burden
of
demonstrating that the
allegation that CSEA breached its duty
of
fair representation when it failed to assist you was
raised in a timely manner.
Second, PERB Regulation 32615(a)(5) 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." Thus, 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.)
You allege that Mr. Davis breached your right to confidentiality. However, neither the charge
nor the additional information received during this investigation provide any factual support to
this allegation. Therefore as for that allegation you have not provided the requisite "clear and
concise statement
of
facts and conduct" to constitute a breach
of
CSEA' s duty
of
fair
representation within the requisite statute
of
limitations.
Third, you allege that CSEA denied you the right to fair representation guaranteed by EERA
section 3544.9 and thereby violated section 3543 .6(b) when Daniel Smith met with Ms.
Gonzalez and encouraged her to file a complaint against you and met with Ms. Cruz and
apologized on your behalf. 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:

LA-CO-1087-E
March 11, 2002
Page 5
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.]
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a Charging Party:
"
...
must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid
of
honest judgment. (Emphasis added.)"
[Reed District Teachers Association,
CTNNEA
(Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
Because you did not learn
of
Mr. Smith's conversations until July 19, 2001 and you filed this
charge on January 14, 2002, these allegations are within the six month statute oflimitations.
However, you have not presented any facts to demonstrate that Mr. Smith's meeting and
discussing matters with Ms. Gonzalez and Ms. Cruz was "arbitrary, discriminatory
or
in bad
faith." Nor have you presented any facts to demonstrate that Mr. Smith's initial denial in
February 2000 regarding his k_nowledge
of
the basis
of
the charges against you was "arbitrary,
discriminatory or in bad faith." Thus his actions do not amount to a breach
of
the union's duty
of
fair representation.
For these reasons the charge, as presently written, does not state a prima facie case.
	Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please 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 the
charging party. The amended charge must have the case number written on the top right hand
comer
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
I do not receive an
amended charge or withdrawal from you before Thursday, March 21, 2002, I shall dismiss
your charge.	
If
you have any questions, please call me at the above telephone number.
?~~'--Marie A. Nakamura
Regional Attorney
MAN