California School Employees Association and Its Chapter 183 (Richards) (PERB 1716E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARL E. RICHARDS,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 183,
Respondent.
Case Nos. LA-CO-1159-E
LA-CO- 1160-E
PERB Decision No. 	1716
November 	3 0 , 	2004
Appearance: 	Carl E. Richards, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Carl E. Richards (Richards) of a Board agent's dismissal
(attached) of his unfair practice charges. 	The charges allege that the California School
Employees Association and its Chapter 183 (CSEA) violated the Educational Employment
Relations Act (EERA) ' by breaching its duty of fair representation. 	Charges were filed
separately against CSEA as Case No.'s LA-CO-1159-E and LA-CO-1160-E, respectively but
were consolidated by the Board agent since they are nearly identical.
The Board has reviewed the entire record in this matter, including the unfair practice
charges, the amended unfair practice charges, the warning and dismissal letters and Richards'
appeal. Based on this review, the Board adopts the Board agent's dismissal as a decision of the
Board itself.
EERA is codified at Government Code section 3540, et seq.

On appeal, Richards raises new evidence via declarations from two coworkers
regarding the District's reduction of maximum carryover to 40 hours per year and the
detrimental effect to them. Richards states that he has raised this evidence to show that
CSEA has failed to investigate the issue thoroughly.
PERB Regulation 32635(b)2 states that, "unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence."
These declarations comprise new supporting evidence; however, Richards has not explained
the need to raise this new evidence at this time, and not in his unfair practice charge or
amended unfair practice charge. The Board therefore finds that Richards has not shown
good cause to raise the new evidence on appeal.
ORDER
The unfair practice charge in Case No. LA-CO-1159-E and Case No. LA-CO-1160-E
are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
22

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027	PERB
December 12, 2003
Theodore Osorio
2385 Peacock Ave.
San Bernardino, CA 92346
Re: 	Carl E. Richards v. California School Employees Association
Unfair Practice Charge No. LA-CO-1159-E
Carl E. Richards v. CSEA Chapter 183
Unfair Practice Charge No. LA-CO-1160-E
DISMISSAL LETTER
Dear Mr. Osorio:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 4, 2003. Carl E. Richards alleges that the California
School Employees Association and CSEA Chapter 183 violated the Educational Employment
Relations Act (EERA)1 by violating the duty of fair representation. I indicated to you in my
attached letter, that the above-referenced charges did not state a prima facie case. 	Richards
was advised that, if there were any factual inaccuracies or additional facts which would correct
the deficiencies explained in that letter, he should amend the charges. 	He was further advised
that, unless he amended the charges to state a prima facie case or withdrew them the charge
would be dismissed. He amended both of the charges.
Richards' grievance alleged the District violated the parties' vacation policy. 	CSEA denied
Richards' request to appeal the grievance to Level III and explained the grievance did not
articulate contract violations.
The warning letter explained that the collective bargaining agreement provided for the
accumulation of twenty-five vacation days and that the charge failed to demonstrate CSEA had
acted in an arbitrary, discriminatory or bad faith manner. 	The first amended charges allege
CSEA violated its duty of fair representation by: arbitrarily ignoring supporting evidence for
his grievance, issuing emails in bad faith, and failing to provide attention to details.
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
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LA-CO- 1159-E
December 12, 2003
Page 2
Richards' grievance states, in pertinent part:
The past practice of article xiv section 16 paragraph bl and all
other relevant articles and practice be restored and that all
classified personnel be made whole and/or all relevant remedies,
[sic]
The section specified in Richards' grievance does not exist in the parties' latest CBA, which is
quoted below. However, that particular reference corresponds to the parties' 1987 CBA, which
allowed employees to accumulate thirty days.
Article XIV of the parties' latest CBA provides, in pertinent part:
B. Full-time unit members shall be allowed to carry over up to a
total of five (5) vacation days into the next fiscal year.
(1) With the approval of the immediate supervisor and the
District's chief Human Resources officer or his designee, a unit
member may carry over more than five (5) days, but not to
exceed a total accumulation of twenty-five (25) days, [emphasis
added.]
(2) If a unit member has been prevented from using vacation
credit as a result of the needs of the District, the District shall pay
for all of the unit member's accumulated vacation in excess of the
maximum accumulation.
Section 6.10 of the District's Personnel Manual provides:
At the option of a twelve-month employee, unused vacation may
be accumulated from year to year at the rate of not more than 5
days per year and shall be limited to a maximum cumulative
amount of 30 days; except that if an employee is not permitted by
his/her supervisor to take his/her annual vacation the amount not
taken shall accumulate for use in the next year or be paid for in
cash at the option of the Board of Education.
On February 8, 2003 CSEA emailed Richards explaining that the District had not changed the
parties' policy and the employees could still accumulate forty hours per year up to a total of
200 hours. On February 11, 2003, CSEA explained to Richards that it would correct
misconceptions regarding the District's policy shortly. On February 26, 2003 and
March 7, 2003, CSEA participated in informational meetings to clarify the policy.
The above-stated information fails to state a prima facie violation for the reasons that follow.
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LA-CO- 1159-E
December 12, 2003
Page 3
As stated in the warning letter, to state a prima facie violation of the duty of fair representation
the charging party must demonstrate the exclusive representative acted in an arbitrary,
discriminatory or bad faith manner.
The charges do not demonstrate CSEA's refusal to pursue Richards' grievance to Level HI was
arbitrary, discriminatory or in bad faith. The collective bargaining agreement limits the
number of days that can be accumulated to twenty-five. 	CSEA's reliance on the collective
bargaining agreement cannot be considered arbitrary conduct even if the language of the
personnel manual differs. Nor does CSEA's correspondence on the subject demonstrate bad
faith as CSEA promptly responded to Richards' concerns and sought to clarify the parties'
policy. Thus, for the above-stated reasons and those stated in the warning letter the charge
must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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LA-CO-1159-E
December 12, 2003
Page 4
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 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 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
By Tammy Samsel
Regional Attorney
_T. ... .. Sunset~
Attachment
cc: Charmaine L. Huntting
_,_,
By - 	I. ,,_ ,..

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (510) 622-1027
November 18,2003
Carl E. Richards
5710 Belvedere Avenue
Highland, CA 92346
Re: 	Carl E. Richards v. California School Employees Association
Unfair Practice Charge No. LA-CO-1159-E
Carl E. Richards v. CSEA Chapter 183
Unfair Practice Charge No. LA-CO-1160-E
WARNING LETTER
Dear Mr. Richards:
The above-referenced unfair practice charges were filed with the Public Employment Relations
Board (PERB or Board) on November 4, 2003. Carl E, Richards alleges the California School
Employees Association and the CSEA Chapter 183 violated the Educational Employment
Relations Act (EERA)1 by violating their duty of fair representation. 	Although filed against
different respondents, the charges present identical facts and are therefore addressed together.
On November 17, 2003, I left a message for you concerning these charges.
The San Bernardino City School District employs Carl E. Richards in the classified bargaining
unit exclusively represented by the California School Employees Association and its Chapter
183 (CSEA). Richards alleges CSEA conspired with the District to override the grievance
procedure.
On February 3, 2003, the District issued a memorandum providing, in pertinent part:
. . . all vacation carry over for classified employees in excess of
five (5) days must be approved in writing by the Classified
Human Resources office. Due to the state of the current budget
crisis that we are. facing, all administrators/supervisors are to
immediately monitor vacation time that classified employee have
accumulated to date and ensure that this time is scheduled and
used prior to the end of the 2002-2003 school year.
On February 8, 2003, Richards asked CSEA Representative Marcia Kushner about the
District's memo. 	Kushner advised Richards that the District was following the parties'
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.
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C 	CLA-CO-1160-E
November 18, 2003
Page 2
collective bargaining agreement. 	Richards expressed concern regarding the District's policy.
On February 11, 2003, Kushner explained that Richard's misconceptions would be corrected
by the end of the week.
On February 12, 2003, Richards filed a grievance on this issue. On February 21, 2003,
Richard's immediate supervisor denied his grievance.
On February 24, 2003, the District issued a memo clarifying the issue. 	On February 26, 2003
and March 7, 2003, CSEA and District representatives held informational meetings regarding
this issue. On March 7, 2003, Richards raised his grievance to Level II. On March 17, 2003,
the District denied the grievance at Level II. 	Richards requested that CSEA appeal the
grievance to Level III. 	On May 10, 2003, CSEA's Executive Board denied Richard's request,
explaining the grievance did not articulate contract violations.
Article XIV, Section B of the parties' CBA provides:
Full-time unit members-shall be allowed to carry over up to a
total of five (5) vacation days into the next fiscal year.
(1) With the approval of the immediate supervisor and the
District's Chief Human Resource Officer or his designee, a unit
member may carry over more than five (5) days, but not to
exceed a total accumulation of twenty-five (25) days.
(2) If a unit member has been prevented from using vacation
credit as a result of the needs of the District, the District shall pay
for all of the unit member's accumulated vacation in excess of the
maximum accumulation.
Richards alleges the District reduced the maximum cumulative amount of days of vacation
from 30 days to 25 days.
The above-stated information fails to state a prima facie violation for the reasons that follow.
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 Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation 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:
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LA-CO-1160-E
November 18,2003
Page 3
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.
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.]
The District's February 3, 2003 memorandum provides that employees may carryover five
vacation days per year, and that any excess carryover must be approved by the Classified
Human Resources office. The parties' CBA also indicates that no more than twenty-five days
may be accumulated in total. Although Richards contends the District reduced the limit on the
number of total days that can be accumulated from thirty to twenty-five, the parties' CBA
states otherwise. 	CSEA quickly responded to Richards' concerns, participated in informational
meetings for the employees on this issue, and explained its decision for not appealing
Richard's grievance. 	The charges do not provide facts demonstrating CSEA acted in an
arbitrary, discriminatory or bad faith manner. 	Thus, the charges must be dismissed.
For these reasons the charges, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charges. 	The amended charges 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 charges must have the case number written on the top right hand
corner of the charge form. 	The amended charges 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
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LA-CO-1160-E
November 18, 2003
Page 4
amended charge or withdrawal from you before November 26, 2003, I shall dismiss your
charges. If you have any questions, please call me at the above telephone number.
Sincerely,
Tawny Saund
Tammy Samsel
Regional Attorney
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