Santa Ana Educators Association (O'Neil, et al.) (PERB 2087E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Case No. LA-CO-1170-E
PERB Decision No. 2087
December 30, 2009
Respondent.
Appearances: Patricia O'Neil, for Patricia O'Neil, Ernest Salgado and Emil Barham;
California Teachers Association by Robert E. Lindquist, Staff Attorney, for Santa Ana
Educators Association.
Before Mckeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Patricia O'Neil (O'Neil), Ernest Salgado (Salgado) and Emil
Barham (Barham) (collectively Charging Parties) of the dismissal of their unfair practice charge
(UPC).' The UPC alleged that the Santa Ana Educators Association (SAEA or Association)
violated the Educational Employment Relations Act (EERA) by denying Charging Parties the
opportunity to participate in union activities and by failing to meet its duty of fair
representation. The Charging Parties alleged that this conduct constituted a violation of EERA
sections 3543.6(a), 3543.6(b) and 3544.9.
The original Charging Parties included O'Neil, Salgado and Barham. Although only
O'Neil's name appears on the appeal documents filed with the Board, the documents indicate
that they were filed on behalf of all of the Charging Parties named in the charge.
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PATRICIA O'NEIL, ERNEST SALGADO and	PA TRICIA O'NEIL, ERNEST SALGADO and
EMIL BARHAM,	EMIL BARHAM,
Charging Parties,
V.
SANTA ANA EDUCATORS ASSOCIATION,	SANTA ANA EDUCATORS ASSOCIATION,
Respondent.
Case No. LA-CO-1170-E
PERB Decision No. 2087
December 30, 2009
Appearances: Patricia O'Neil, for Patricia O'Neil, Ernest Salgado and Emil Barham;
California Teachers Association by Robert E. Lindquist, Staff Attorney, for Santa Ana
Educators Association.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUW ALD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Patricia O'Neil (O'Neil), Ernest Salgado (Salgado) and Emil
Barham (Barham) (collectively Charging Parties) of the dismissal of their unfair practice charge
(UPC). 1 The UPC alleged that the Santa Ana Educators Association (SAEA or Association)
violated the Educational Employment Relations Act (EERA)2 by denying Charging Parties the
opportunity to participate in union activities and by failing to meet its duty of fair
representation. The Charging Parties alleged that this conduct constituted a violation of EERA
sections 3543.6(a), 3543.6(b) and 3544.9.
1 The original Charging Parties included O'Neil, Salgado and Barham. Although only
O'Neil's name appears on the appeal documents filed with the Board, the documents indicate
that they were filed on behalf of all of the Charging Parties named in the charge.
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this matter, including, but not limited to,
the UPC, the amended UPC, the warning and two dismissal letters, the Charging Parties'
appeal of the dismissal and the Association's response to the appeal. Based on our review, we
affirm the dismissal of the charge for the reasons set forth herein.
PROCEDURAL HISTORY
On April 15, 2004, Charging Parties filed a UPC alleging that the Association denied
them the opportunity to participate in union activities and violated the duty of fair
representation in connection with obtaining member ratification of two agreements reached
through collective bargaining. Charging Parties filed a First Amended Charge on April 16,
2007." On June 5, 2007, a Board agent dismissed the UPC, finding that that charge, as
amended, failed to state a prima facie case.
BACKGROUND/FACTS
SAEA is the exclusive representative for approximately 3100 certificated employees
(including Charging Parties) in the Santa Ana Unified School District (District).
February 27, 2004 Memo to Bargaining Unit Members
On February 27, 2004, SAEA's Co-Executive Directors Gladys Hall-Kessler (Hall-
Kessler) and Joe Krause (Krause) issued a memo to bargaining unit members outlining the
efforts to reach an agreement with the District on a successor collective bargaining agreement
(CBA). The February 27 memo described the District's financial condition as "desperate" due
to both a $29 million shortfall for the following fiscal year and the State's education spending
fter the charge was initially dismissed based upon a Board agent's determination
that the charge did not state a prima facie case, the Board remanded the case for further
investigation based upon Charging Parties' assertion that they did not receive the Board
agent's letter warning them that the charge would be dismissed if they did not file an amended
charge. (Santa Ana Education Association (O'Neil, et al.) (2005) PERB Decision No. 1776.)
2
The Board has reviewed the entire record in this matter, including, but not limited to,
the UPC, the amended UPC, the warning and two dismissal letters, the Charging Parties'
appeal
of
the dismissal and the Association's response to the appeal. 	Based on our review, we
affirm the dismissal
of
the charge for the reasons set forth herein.
PROCEDURAL HISTORY
On April 15, 2004, Charging Parties filed a UPC alleging that the Association denied
them the opportunity to participate in union activities and violated the duty
of
fair
representation in connection with obtaining member ratification
of
two agreements reached
through collective bargaining. Charging Parties filed a First Amended Charge on April 16,
2007.3 On June 5, 2007, a Board agent dismissed the UPC, finding that that charge, as
amended, failed to state a prima facie case.
BACKGROUND/FACTS
2
SAEA is the exclusive representative for approximately 3100 certificated employees
(including Charging Parties) in the Santa Ana Unified School District (District).
February 27, 2004 Memo to Bargaining Unit Members
On February 27, 2004, SAEA's Co-Executive Directors Gladys Hall-Kessler (Hall-
Kessler) and Joe Krause (Krause) issued a memo to bargaining unit members outiining the
efforts to reach an agreement with the District on a successor collective bargaining agreement
(CBA). The February 27 memo described the District's financial condition as "desperate" due
to both a $29 million shortfall for the following fiscal year and the State's education spending
AAfter the charge was initially dismissed based upon a Board agent's determination
that the charge did not state a prima facie case, the Board remanded the case for further
investigation based upon Charging Parties' assertion that they did not receive the Board
agent's letter warning them that the charge would be dismissed if they did not file an amended
charge. (Santa Ana Education Association (O'Neil, et al.) (2005) PERB Decision No. 1776.)

cuts. The memo described the severity of the financial crises by emphasizing that the District
began the 2002-2003 school year "with a razor thin margin in [its] reserve." The memo stated,
in relevant part:
The State doesn't allow school districts to go bankrupt. So the
District was forced to come to us to get needed money. At the
table, they continued to demand medical benefits cuts and caps,
step and column freezes, furlough days, and longer hours. When
we wouldn't budge, they tried cutting programs, and several were
cut. They tried getting rid of class size reduction, but it didn't
turn out to save them anywhere near the four and half million
dollars they were hoping for. So in the end, they still needed
money and they were either going to get taken over by the state
(in lieu of bankruptcy), impose a settlement on teachers and face
a strike, or find a way to settle with SAEA on a bail out.
Obviously we weren't looking forward to being taken over by the
State. The State would have the right to do all the cuts without
negotiations, if that happened. The District would be in the hands
of appointed overseers from outside for however long it took to
get things in order. And our contract and its protections would be
seriously curtailed. The idea of an imposition by the District was
equally disturbing. After going through impasse mediations, we
would then go on to a fact-finding hearing which would produce
a recommendation which could be ignored by the District, a
process called imposition. After that we could strike. That is not
a pretty solution because even after striking, we would still be
$29 million short of meeting our budget over the next couple of
years. We might be able to stop the District from imposing by
winning an unfair labor practice charge for failing to bargain in
good faith. If we win that ruling, the District would be allowed to
impose, but they would still need $29 million in order to stay
afloat.
The long and the short of it is that no matter how we get there, we
will have to find $29 million to bail the District out. There are no
alternatives to that.
[] . . . []
We don't like this[,] but the alternative is much worse. Even if
we strike, we would be striking for restoration and benefits.
Striking won't find the missing money. Soon, if all goes the way
we think it will, we will be asking you to vote yes to ratify the
contract changes we will be presenting to you. Your Reps will be
given all the information on the changes to the contract along
3
cuts. The memo described the severity
of
the financial crises by emphasizing that the District
began the 2002-2003 school year "with a razor thin margin in [its] reserve." The memo stated,
in relevant part:
The State doesn't allow school districts to go bankrupt. So the
District was forced to come to us to get needed money. At the
table, they continued to demand medical benefits cuts and caps,
step and column freezes, furlough days, and longer hours. When
we wouldn't budge, they tried cutting programs, and several were
cut. They tried getting rid
of
class size reduction, but it didn't
turn out to save them anywhere near the four and half million
dollars they were hoping for. 	So in the end, they still needed
money and they were either going to get taken over by the state
(in lieu
of
bankruptcy), impose a settlement on teachers and face
a strike, or find a way to settle with SABA on a bail out.
Obviously we weren't looking forward to being taken over by the
State. The State would have the right to do all the cuts without
negotiations,
if
that happened. The District would be in the hands
of
appointed overseers from outside for however long it took to
get things in order. And our contract and its protections would be
seriously curtailed. The idea
of
an imposition by the District was
equally disturbing. After going through impasse mediations, we
would then go on to a fact-finding hearing which would produce
a recommendation which could be ignored by the District, a
process called imposition. After that we could strike. That is not
a pretty solution because even after striking, we would still be
$29 million short
of
meeting our budget over the next couple
ofyears. We might be able to stop the District from imposing by
winning an unfair labor practice charge for failing to bargain in
good faith.
	If
we win that ruling, the District would be allowed to
impose, but they would still need $29 million in order to stay
afloat.
The long and the short
of
it is that no matter how we get there, we
will have to find $29 million to bail the District out. There are no
alternatives to that.
[it]
...
[1]
We don't like this[,] but the alternative is much worse. Even ifwe strike, we would be striking for restoration and benefits.
Striking won't find the missing money. Soon, if all goes the way
we think it will, we will be asking you to vote yes to ratify the
contract changes we will be presenting to you. Your Reps will be
given all the information on the changes to the contract along
3

with explanations. If you vote, not [sic] you may be asked to
picket and even strike down the road. However, if we picket and
strike we will still have to bail them out to the tune of $29
million.
The memo advised members that agreeing to the District's demands would not be in the
best interest of unit members. Instead, SAEA proposed that, for the next two years (2004-05
and 2005-06), it would agree to: (1) a reduction in the yearly calendar from 186 days to 185
days (equating to a 1 percent reduction in pay); (2) a 3 percent reduction in per diem pay; and
(3) a "Retirement Incentive Program." The Association's proposal equated to an annual
4 percent reduction in the salary of bargaining unit employees for two years.
Tentative Agreements and Ratification Election
On or about March 1, 2004, SAEA reached the following two tentative agreements with
the District: (1) re-openers from the 2002/2003 and 2003/2004 school years; and (2) a
successor, three-year agreement, effective July 1, 2004. The tentative agreements included the
annual 4 percent salary reduction substantially as described in SAEA's February 27 memo.
On March 2, 2004, the voters passed Proposition 57, a measure that Charging Parties
assert "generated significant additional revenue for the District."
On March 3, 2004, SAEA held an Emergency Representative Council meeting, at
which a vote was taken to determine whether the tentative agreements would be sent to the
membership for ratification. Each site representative in attendance at this meeting was
provided a packet of information, including the tentative agreements, and directed to leave
copies in the front office and the teachers' lounge and to inform members that they could
obtain a copy of the tentative agreements on the Association's website. Charging Parties
allege that this meeting was held in violation of the Association's bylaws.
Also on March 3, 2004, the District school board held a meeting. During that meeting,
one of the representatives on the superintendent's Teachers' Cabinet asked the District
with explanations. If you vote, not [sic] you may be asked to
picket and even strike down the road. However,
if
we picket and
strike we will still have to bail them out to the tune
of
$29
million.
The memo advised members that agreeing to the District's demands would not be in the
best interest
of
unit members. Instead, SAEA proposed that, for the next two years (2004-05
and 2005-06), it would agree to: (1) a reduction in the yearly calendar from 186 days to 185
days (equating to a 1 percent reduction in pay); (2) a 3 percent reduction in per diem pay; and
(3) a "Retirement Incentive Program." The Association's proposal equated to an annual
4 percent reduction in the salary
of
bargaining unit employees for two years.
Tentative Agreements and Ratification Election
On or about March
1,
2004, SAEA reached the following two tentative agreements with
the District: (1) re-openers from the 2002/2003 and 2003/2004 school years; and (2) a
successor, three-year agreement, effective July 1, 2004. The tentative agreements included the
annual 4 percent salary reduction substantially as described in SAEA's February 27 memo.
On March 2, 2004, the voters passed Proposition 57, a measure that Charging Parties
assert "generated significant additional revenue for the District."
On March 3, 2004, SAEA held an Emergency Representative Council meeting, at
which a vote was taken to determine whether the tentative agreements would be sent to the
membership for ratification. Each site representative in attendance at this meeting was
provided a packet
of
information, including the tentative agreements, and directed to leave
copies in the front office and the teachers' lounge and to inform members that they could
obtain a copy of the tentative agreements on the Association's website. Charging Parties
allege that this meeting was held in violation of the Association's bylaws.
Also on March 3, 2004, the District school board held a meeting. During that meeting,
one of the representatives on the superintendent's Teachers' Cabinet asked the District
4

superintendent whether it was true the District faced a State takeover in two weeks. The
superintendent replied that, although the District needed to reduce expenditures, it was not
facing an imminent State takeover. The same day, District Superintendent Al Mijares
(Mijares) issued a memorandum informing the Associaton that ratification of the tentative
agreements would help save the Class Size Reduction (CSR) program. Additionally, a
memorandum dated January 23, 2004 from Superintendent Mijares informed employees that
"The Board President has stated publicly that State takeover of SAUSD is not an option."
Charging Parties also allege that, at an unspecified time, representatives from the Orange
County Department of Education Fiscal Management Department stated that the District was
"fine for this year."
After the SAEA representative council approved the tentative agreements, SAEA
scheduled a ratification election from March 5 to March 12, 2004, in which members were
asked to vote whether to accept or reject the March 2004 tentative agreements." SAEA
conducted three informational meetings, on March 8, 9 and 10, 2004, to explain the terms of
the tentative agreements to employees." In addition, SAEA sent each member a ballot and a
synopsis of the tentative agreements, and informed the membership that the full tentative
agreements could be accessed on a website. Charging Parties alleged that, at the March 8,
2004 informational meeting, when Salgado attempted to speak against the ratification, he was
interrupted by President Tom Harrison (Harrison) and told that "this was their forum, not his."
(Italics in original.) Charging Parties further alleged that, at the March 10, 2004 informational
The meetings and voting occurred during the cycle change of the District's year-round
school schedule, when the largest number of Association members would be available.
The first meeting occurred at Saddleback High School. The second and third
meetings occurred at the Association's headquarters.
5
superintendent whether it was true the District faced a State takeover in two weeks. 	The
superintendent replied that, although the District needed to reduce expenditures, it was not
facing an imminent State takeover. The same day, District Superintendent Al Mijares
(Mijares) issued a memorandum informing the Associaton that ratification
of
the tentative
agreements would help save the Class Size Reduction (CSR) program. Additionally, a
memorandum dated January 23, 2004 from Superintendent Mijares informed employees that
"The Board President has stated publicly that State takeover
of
SAUSD is not an option."
Charging Parties also allege that, at an unspecified time, representatives from the Orange
County Department
of
Education Fiscal Management Department stated that the District was
"fine for this year."
5
After the SAEA representative council approved the tentative agreements, SAEA
scheduled a ratification election from March 5 to March 12, 2004, in which members were
asked to vote whether to accept or reject the March 2004 tentative agreements.4 SAEA
conducted three informational meetings, on March 8, 9 and 10, 2004, to explain the terms
of
the tentative agreements to employees. 5 In addition, SAEA sent each member a ballot and a
synopsis
of
the tentative agreements, and informed the membership that the full tentative
agreements could be accessed on a website. Charging Parties alleged that, at the March 8,
2004 informational meeting, when Salgado attempted to speak against the ratification, he was
interrupted by President Tom Harrison (Harrison) and told that "this was their forum, not his."
(Italics in original.) Charging Parties further alleged that, at the March 10, 2004 informational
* The meetings and voting occurred during the cycle change of the District's year-round
school schedule, when the largest number of Association members would be available.
5 The first meeting occurred at Saddleback High School. The second and third
meetings occurred at the Association's headquarters.

meeting, Hall-Kessler "rose and went to the front of the assembly where she attempted to end
Mr. Salgado's questions and comments."
Throughout the ratification process, O'Neil actively opposed the tentative agreements.
She believed that the Association had failed to negotiate an adequate agreement because there
was "an inadequate exchange in compensation made for four percent (4 percent) pay cut" and
because other alternatives to a pay cut were possible and could have been negotiated by SAEA.
Charging Parties further alleged that, on March 5, 2004, during a visit to Hoover
Elementary School, Hall-Kessler and President Harrison stated that, "if we did not ratify this
contract, we would 'very possibly be taken over by the State in two weeks and faced with a
potential 10% pay cut and nullification of our contract' (emphasis added)." Charging Parties
also assert that members were told at this meeting and others that saving the CSR program
depended upon ratification of the contract."
Use of Employee Mailboxes
On March 8, 2004, Charging Parties attempted to use employee mailboxes to distribute
materials urging members to vote against ratification of the contract. The first page of the
materials, entitled "Unanswered Questions and Other Reasons to Vote 'NO' on the Contract
Ratification," indicates that it was prepared by O'Neil in her capacity as "[SAEA Board of
Directors (non-voting) resignation submitted]." The second page is entitled "Vote 'NO' on the
Settlement," and indicates that it was promulgated by the "Coalition of Concerned Teachers of
Santa Ana Unified." That day, President Harrison issued a memorandum to SABA site
representatives and District secretaries requesting that "an anonymous yellow flyer" called
"Vote NO on the Settlement" that had been deposited in District mailboxes be removed
harging Parties also alleged that, at the March 5 meeting, Hall-Kessler embarrassed
O'Neil in public before her peers. Charging Parties did not appeal the dismissal of that portion
of the charge that alleged that this conduct constituted unlawful discipline or retaliation.
meeting, Hall-Kessler "rose and went to the front
of
the assembly where she attempted to end
Mr. Salgado's questions and comments."
Throughout the ratification process, O'Neil actively opposed the tentative agreements.
She believed that the Association had failed to negotiate an adequate agreement because there
was "an inadequate exchange in compensation made for four percent ( 4 percent) pay cut" and
because other alternatives to a pay cut were possible and could have been negotiated by SAEA.
Charging Parties further alleged that, on March 5, 2004, during a visit to Hoover
Elementary School, Hall-Kessler and President Harrison stated that,
"if
we did not ratify this
contract, we would 'very possibly be taken over by the State in two weeks and faced with a
potential I 0%
pay
cut and nullification
of
our contract' (emphasis added)." Charging Parties
also assert that members were told at this meeting and others that saving the CSR program
depended upon ratification
of
the contract. 6
Use
of
Employee Mailboxes
On March
8,
2004, Charging Parties attempted to use employee mailboxes to distribute
materials urging members to vote against ratification
of
the contract. The first page
of
the
materials, entitled "Unanswered Questions and Other Reasons to Vote 'NO' on the Contract
Ratification," indicates that it was prepared by O'Neil in her capacity as "[SAEA Board
of
Directors (non-voting) resignation submitted]." The second page is entitled "Vote
'NO'
on the
Settlement," and indicates that it was promulgated by the "Coalition
of
Concerned Teachers
of
Santa Ana Unified." That day, President Harrison issued a memorandum to SAEA site
representatives and District secretaries requesting that "an anonymous yellow flyer" called
"Vote NO on the Settlement" that had been deposited in District mailboxes be removed
6
CCharging Parties also alleged that, at the March 5 meeting, Hall-Kessler embarrassed
O'Neil in public before her peers. Charging Parties did not appeal the dismissal of that portion
of the charge that alleged that this conduct constituted unlawful discipline or retaliation.

immediately, and asserted that both the District and SAEA agreed that the distribution of such
anonymous flyers was illegal under the CBA.' Charging Parties further allege that Walker
Elementary School Principal Robert Deberry informed Barham that he could not distribute
materials against ratification in the District's mailboxes. Charging Parties further alleged that
Krause informed O'Neil that SAEA would "seek disciplinary action by the District of anyone
who distributed 'Vote No' materials, and that it would be a problem even for those people who
had stopped distributing materials when told to do so."
During the period of March 5 to March 12, 2004, the Association disseminated a flyer
to members entitled "VOTE YES ON THE CONTRACT SETTLEMENT." The flyer stated,
in part:
. A 'YES' guarantees no outside state agency takeover of
the district's budget.
A 'NO' doesn't make $29 million dollars appear out of
thin air.
. A 'No' will delay any resolution on class-size reduction
indefinitely.
The SAEA membership voted to ratify the reopener tentative agreement by a margin of
1804 to 433 with 99 invalid ballots, and to ratify the successor agreement by a margin of 1740
to 494 with 99 invalid ballots.
On March 16, 2004, the District's Board of Education ratified the tentative agreements.
On March 23, 2004, SAEA President Harrison stated that the March 2 vote on
Proposition 57 would not have impacted negotiations because the District had already included
a 1.84 percent COLA in its revenue projections for 2004-2005. Charging Parties assert that, at
some unspecified date, SAEA informed Charging Parties that the District had to immediately
There appears to be no dispute that the "anonymous yellow flyer" referred to at least
the second page of the materials provided by Charging Parties.
7
immediately, and asserted that both the District and SAEA agreed that the distribution
of
such
anonymous flyers was illegal under the CBA. 7 Charging Parties further allege that Walker
Elementary School Principal Robert Deberry informed Barham that he could not distribute
materials against ratification in the District's mailboxes. Charging Parties further alleged that
Krause informed O'Neil that SAEA would "seek disciplinary action by the District
of
anyone
who distributed 'Vote No' materials, and that it would be a problem even for those people who
had stopped distributing materials when told to
do
so."
During the period
of
March 5 to March 12, 2004, the Association disseminated a flyer
to members entitled "VOTE YES ON THE CONTRACT SETTLEMENT." The flyer stated,
in part:
• 	A 'YES' guarantees no outside state agency takeover
of
the district's budget.
• 	A
'NO'
doesn't make $29 million dollars appear out
of
thin air.
• 	A
'No'
will delay any resolution on class-size reduction
indefinitely.
The SAEA membership voted to ratify the reopener tentative agreement by a margin
of
1804 to 433 with 99 invalid ballots, and to ratify the successor agreement by a margin
of
1740
to 494 with 99 invalid baliots.
On March 16, 2004, the District's Board
of
Education ratified the tentative agreements.
On March 23, 2004, SAEA President Harrison stated that the March 2 vote on
Proposition 57 would not have impacted negotiations because the District had already included
a 1.84 percent COLA in its revenue projections for 2004-2005. Charging Parties assert that, at
some unspecified date, SAEA informed Charging Parties that the District had to immediately
7 There appears to be no dispute that the "anonymous yellow flyer" referred to at least
the second page of the materials provided by Charging Parties.
7

pay back $15 million of the "Tustin Land Settlement Money." Charging Parties also assert that
they were informed that the District was not legally required to pay this money back, although
it may be politically favorable to do so.
DISCUSSION
On appeal, Charging Parties argue that the Association's conduct in negotiating and
gaining ratification of the tentative agreements violated its duty of fair representation by the
following conduct: (1) making misrepresentations of fact in order to secure ratification of the
tentative agreements; (2) failing to provide adequate opportunity for members to consider and
comment on the tentative agreements prior to ratification; (3) failing to follow its own by-laws
regarding ratification; (4) preventing members from distributing materials opposing
ratification; and (5) agreeing to the tentative agreements without a rational basis.
In order to state a prima facie case of breach of the duty of fair representation in
violation of section 3543.6(b), Charging Parties must plead facts that show that the
Association's conduct was arbitrary, discriminatory or in bad faith. (United Teachers of Los
Angeles (Collins) (1982) PERB Decision No. 258 (Collins).) As a general rule, an exclusive
representative enjoys a wide range of bargaining latitude. As the United States Supreme Court
stated in Ford Motor Co. v. Huffman (1953) 345 U.S. 330, 338:
Inevitably differences arise in the manner and degree to which the
terms of any negotiated agreement affect individual employees
and classes of employees. The mere existence of such
differences does not make them invalid. The complete
satisfaction of all who are represented is hardly to be expected. A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in the
exercise of its discretion.
Acknowledging the need for such discretion, PERB has determined that an exclusive
representative is not expected or required to satisfy all members of the unit it represents.
8
pay back $15 million
of
the "Tustin Land Settlement Money." Charging Parties also assert that
they were informed that the District was not legally required to pay this money back, although
it may be politically favorable to do so.
DISCUSSION
On appeal, Charging Parties argue that the Association's conduct in negotiating and
gaining ratification
of
the tentative agreements violated its duty
of
fair representation by the
following conduct: (
1)
making misrepresentations
of
fact in order to secure ratification
of
the
tentative agreements; (2) failing to provide adequate opportunity for members to consider and
comment on the tentative agreements prior to ratification; (3) failing to follow its own by-laws
regarding ratification; (4) preventing members from distributing materials opposing
ratification; and (5) agreeing to the tentative agreements without a rational basis.
In order to state a prima facie case
of
breach
of
the duty
of
fair representation in
violation
of
section 3543.6(b ), Charging Parties must plead facts that show that the
Association's conduct was arbitrary, discriminatory or in bad faith. 	(United Teachers
of
Los
Angeles (Collins) (1982) PERB Decision No. 258 (Collins).) As a general rule, an exclusive
representative enjoys a wide range
of
bargaining latitude. As the United States Supreme Court
stated in Ford Motor Co.
v.
Huffman (1953) 345 U.S. 330,338:
Inevitably differences arise in the manner and degree to which the
terms
of
any negotiated agreement affect individual employees
and classes
of
employees. The mere existence
of
such
differences does not make them invalid. The complete
satisfaction
of
all who are represented is hardly to be expected. A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in the
exercise of its discretion.
Acknowledging the need for such discretion, PERB has determined that an exclusive
representative is not expected or required to satisfy all members of the unit it represents.
8

(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty of fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation of Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Parties were not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Ibid.)
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, CTA/NEA (Reyes) (1983) PERB Decision No. 332
[ Reed], quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision
No. 124 [Rocklin].)
I. 	Misrepresentation of Facts to Secure Ratification
On appeal, Charging Parties contend that the Board agent erred in failing to find that
the following statements by SAEA constituted unlawful misrepresentations of fact made to its
members in order to secure ratification of the tentative agreements: (1) that saving CSR
depended on contract ratification; (2) that the District faced a state takeover in lieu of
bankruptcy; (3) that the CBA would be nullified in the event of a state takeover; (4) that there
was no alternative to bailing out the District for $29 million; (5) that the District had a
$15 million debt that needed to be repaid immediately; and (6) that the cost of living increase
resulting from Proposition 57 had already been incorporated into the District's budget
projections.
9
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty
of
fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation a/Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Parties were not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Ibid.)
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, CTA/NEA (Reyes) (1983) PERB Decision No. 332
[Reed], quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision
No. 124 [Rocklin].)
I.
	Misrepresentation
of
Facts to Secure Ratification
On appeal, Charging Parties contend that the Board agent erred in failing to find that
the following statements by SAEA constituted unlawful misrepresentations
of
fact made to its
members in order to secure ratification
of
the tentative agreements: (1) that saving CSR
depended on contract ratification; (2) that the District faced a state takeover in lieu
of
bankruptcy; (3) that the CBA would be nullified in the event
of
a state takeover; (4) that there
was no alternative to bailing out the District for $29 million; (5) that the District had a
$ 15 million debt that needed to be repaid immediately; and (6) that the cost of living increase
resulting from Proposition 57 had already been incorporated into the District's budget
projections.
9

PERB has recognized its authority to review the contract ratification process vis-a-vis
the union's duty of fair representation. (See, e.g., Oxnard Educators Association (Gorcey and
Tripp) (1988) PERB Decision No. 681 [PERB can examine union conduct in communicating
bargaining information to constituents].) The intentional misrepresentation of fact in order to
obtain contract ratification is a demonstration of bad faith and a violation of the duty of fair
representation. (San Juan Teachers Association, CTA/NEA (Himes, et al.) (1999) (Himes),
PERB Decision No. 1322; California State Employees' Association (O'Connell)
Decision No. 596-H (O'Connell D).) A prima facie case of a breach of the duty of fair
representation has been stated where it is alleged that the exclusive representative knowingly
misrepresented a fact in order to secure from its constituents their ratification of a contract.
(O'Connell I.)
Subsequently, PERB clarified that the standard set forth in O'Connell I was "but one
example of 'bad faith'," and that "[when dealing with matters of internal union business, the
fact misrepresented must have a substantial impact on the relationships of the unit members to
their employer to give rise to the duty of fair representation." (California State Employees
Association (O'Connell) (1989) PERB Decision No. 726-H (O'Connell In), citing Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106
(Kimmett).) The Board further held, however, that "[a] breach of the duty will not be found
where the exclusive representative is guilty of 'mere negligence or poor judgment"."
(O'Connell II.)
Based upon the foregoing, in order to state a prima facie breach of the duty of fair
representation by misrepresentation of facts to secure contract ratification, the charging party
must show that: (1) the exclusive representative made an untrue assertion of fact (or conduct
equivalent to an untrue assertion of fact); (2) the exclusive representative's assertion was made
10
PERB has recognized its authority to review the contract ratification process vis-a-vis
the union's duty
of
fair representation. (See, e.g., Oxnard Educators Association (Gorcey
and
Tripp) (1988) PERB Decision No.
681
[PERB can examine union conduct in communicating
bargaining information to constituents].) The intentional misrepresentation
of
fact in order to
obtain contract ratification is a demonstration
of
bad faith and a violation
of
the duty
of
fair
representation. (San Juan Teachers Association, CTAINEA (Himes, et al.) (1999) (Himes),
PERB Decision No. 1322; California State Employees' Association
(0
'Connell) (1986) PERB
Decision No. 596-H (O'Connell I).) A prima facie case
of
a breach
of
the duty
of
fair
representation has been stated where it is alleged that the exclusive representative knowingly
misrepresented a fact in order to secure from its constituents their ratification
of
a contract.
( 0 'Connell I.)
( 1986) PERB
Subsequently, PERB clarified that the standard set forth in O'Connell I was "but one
example
of
'bad faith'," and
that"[
w]hen dealing with matters
of
internal union business, the
fact misrepresented must have a substantial impact on the relationships
of
the unit members to
their employer to give rise to the duty
of
fair representation." (California State Employees
Association
(0
'Connell) (1989) PERB Decision No. 726-H ( 0 'Conneil II), citing Service
Employees International Union, Local
99'
(Kimmett) (1979) PERB Decision No. 106
(Kimmett).) The Board further held, however, that "[a] breach
of
the duty will not be found
where the exclusive representative is guilty
of
'mere negligence or poor judgment'."
( 0 'Connell JI.)
Based upon the foregoing, in order to state a prima facie breach of the duty of fair
representation by misrepresentation of facts to secure contract ratification, the charging party
must show that: 	( 1) the exclusive representative made an untrue assertion of fact (or conduct
equivalent to an untrue assertion of fact); (2) the exclusive representative's assertion was made

with knowledge of its falsity; (3) the exclusive representative's assertion was made to secure
ratification of a contract; and (4) the fact misrepresented must have a substantial impact on the
relationships of the unit members to their employer. However, "[a] breach of the duty will not
be found where the exclusive representative is guilty of 'mere negligence or poor judgment'."
(O'Connell II.)
A. Statement that Saving Class Size Reduction Program (and Corresponding Jobs)
Depended on Contract Ratification.
Charging Parties assert that the Board agent erred in dismissing the allegation that
SAEA misrepresented to its members that voting against ratification of the tentative
agreements would delay resolution of funding issues associated with the CSR program.
According to Charging Parties, the statements were false because the District had already
voted to restore the CSR program. As noted by the Board agent, however, Charging Parties
also provided evidence showing that the District contemplated eliminating CSR in the future as
one means to help solve its budget issues. Thus, the Board agent concluded, it is plausible that
SAEA believed that making salary concessions would preserve the CSR program in the future.
Charging Parties have failed to establish that SAEA's statements were untrue assertions
of fact. Instead, the information provided by Charging Parties indicates that, while the District
had not eliminated the CSR program for the 2004-2005 school year, it continued to view
elimination of CSR as a possible option to address its financial issues in the future. Thus,
SAEA merely expressed its opinion that ratification of the contract could help preserve the
CSR program.
In their appeal, Charging Parties argue that it was "highly unlikely" that SAEA was
referring to saving the CSR in a future school years (such as 2005-2006 or 2006-2007),
because of the following statements contained in a memorandum entitled "SAEAnswers
Update from the Accountability Committee": (1) "we did no such thing" as take a pay cut to
11
with knowledge
of
its falsity; (3) the exclusive representative's assertion was made to secure
ratification
of
a contract; and (4) the fact misrepresented must have a substantial impact
on
the
relationships
of
the unit members to their employer. However, "[a] breach
of
the duty will not
be found where the exclusive representative is guilty
of
'mere negligence or poor
judgment'."
(0 'Connell JI.)
A. 	Statement that Saving Class Size Reduction Program (and Corresponding Jobs)
Depended on Contract Ratification.
Charging Parties assert that the Board agent erred in dismissing the allegation
that
SAEA misrepresented to its members that voting against ratification
of
the tentative
agreements would delay resolution
of
funding issues associated with the CSR program.
According to Charging Parties, the statements were false because the District had already
voted to restore the CSR program. As noted by the Board agent, however, Charging Parties
also provided evidence showing that the District contemplated eliminating CSR in the future as
one means to help solve its budget issues. Thus, the Board agent concluded, it is plausible that
SAEA believed that making salary concessions would preserve the CSR program in the future.
Charging Parties have failed to establish that SAEA's statements were untrue assertions
of
fact. 	Instead, the information provided by Charging Parties indicates that, while the District
had not eliminated the CSR program for the 2004-2005 school year, it continued to view
elimination
of
CSR as a possible option to address its financial issues in the future. 	Thus,
SAEA merely expressed its opinion that ratification
of
the contract could help preserve the
CSR program.
In their appeal, Charging Parties argue that it was "highly unlikely" that SAEA was
referring to saving the CSR in a future school years (such as 2005-2006 or 2006-2007),
because of the following statements contained in a memorandum entitled "SAEAnswers
Update from the Accountability Committee": (1) "we did no such thing" as take a pay cut to
11

save CSR; (2) "While most of us understand the importance of CSR, it was not in jeopardy";
and (3) "Before we voted on our contract, the District stated that they were not ending CSR."
Charging Party also asserts that there are no facts indicating that the Association was not
referring to the 2004-2005 school year when it made the statements concerning CSR. Although
the memo is undated, Charging Parties assert that it was issued after ratification of the
contract. Thus, this memo cannot be used as evidence of misrepresentations made to induce
the members to ratify the contract.
Even assuming SAEA's statements referred to the 2004-2005 school year, the evidence
presented fails to demonstrate that SAEA knowingly misrepresented facts to its membership in
order to induce them to ratify the tentative agreements based upon the erroneous conclusion
that saving the CSR program depended on ratifying the tentative agreement. The record
includes a memorandum from Superintendent Mijares to SAEA dated March 3, 2004, stating
that ratification of the tentative agreements would help save the CSR program. Thus, SAEA
may well have believed that the CSR was at risk. There are no facts showing that SAEA made
the statements with knowledge that it was false. Even if untrue, the statements would, at most,
reflect simple negligence, not deliberate misrepresentation. (See e.g., California School
Employees Association (Ciaffoni, et al.) (1984) PERB Decision No. 427 [holding that the
union engaged in mere negligence when it failed to fully explain terms of a settlement
agreement].) Accordingly, the evidence fails to establish that the Associaiton acted in bad
faith or in an arbitrary manner by stating in a March 2004 flyer and at meetings that a "no"
vote would delay resolution of funding issues associated with CSR.
B. Statement that the District Faced State Takeover in Lieu of Bankruptcy
Charging Parties argue that the Board agent erred in finding that SAEA did not
deliberately misrepresent the facts concerning the possibility of an imminent state takeover of
12
save CSR; (2) "While most
ofus
understand the importance
of
CSR, it was not in jeopardy";
and (3) "Before we voted on our contract, the District stated that they were not ending CSR."
Charging Party also asserts that there are no facts indicating that the Association was not
referring to the 2004-2005 school year when it made the statements concerning CSR. Although
the memo is undated, Charging Parties assert that it was issued after ratification
of
the
contract. Thus, this memo cannot be used as evidence
of
misrepresentations made to induce
the members to ratify the contract.
Even assuming SAEA's statements referred to the 2004-2005 school year, the evidence
presented fails to demonstrate that SAEA knowingly misrepresented facts to its membership in
order to induce them to ratify the tentative agreements based upon the erroneous conclusion
that saving the CSR program depended on ratifying the tentative agreement. The record
includes a memorandum from Superintendent Mijares to SAEA dated March 3, 2004, stating
that ratification
of
the tentative agreements would help save the CSR program. Thus, SAEA
may well have believed that the CSR was at risk. There are no facts showing that SAEA made
the statements with knowledge that it was false. 	Even
if
untrue, the statements would, at most,
reflect simple negligence, not deliberate misrepresentation. (See e.g., California School
Employees Association (Ciaffoni, et al.) (1984) PERB Decision No. 427 [holding that the
union engaged in mere negligence when it failed to fully explain terms
of
a settlement
agreement].) Accordingly, the evidence fails to establish that the Associaiton acted in bad
faith or in an arbitrary manner by stating in a March 2004 flyer and at meetings that a "no"
vote would delay resolution
of
funding issues associated with CSR.
B. 	Statement that the District Faced State Takeover in Lieu of Bankruptcy
Charging Parties argue that the Board agent erred in finding that SAEA did not
deliberately misrepresent the facts concerning the possibility of an imminent state takeover of
12

the District. Specifically, Charging Parties assert that the following statement contained in
SAEA's February 27, 2004 memo constituted a deliberate misstatements of fact: "[The District
was] either going to get taken over by the state (in lieu of bankruptcy), impose a settlement on
teachers and face a strike, or find a way to settle with SAEA on a bail out." Charging Parties
assert that this statement by SAEA indicates that the District was "nearing a position of
bankruptcy," which could have resulted in a state takeover as early as March 2004 if members
failed to ratify the contract. In support of their position, Charging Parties assert that the Board
agent failed to consider the following evidence: (1) a January 23, 2004 District memo stating
that the District was able to pay its vendors and meet payroll; (2) a statement by a
representative of the Orange County Department of Education, Fiscal Management
Department, that the District was "fine for this year [i.e., 2003-2004]"; and (3) a statement by
the superintendent at the March 3, 2004 meeting that, while the District did need to reduce
expenditures, it was not facing imminent takeover. Charging Parties assert that these facts
support their theory that the District was not facing bankruptcy or a state takeover.
A review of the February 27, 2004 memo does not demonstrate that SAEA deliberately
misled members into ratifying the TA. The February 27 memo emphasizes that the District
was facing a severe solvency problem and that a strike by members would not alleviate such
concerns, and voices several possible options to alleviate the problem: the District would
either be taken over by the state (in lieu of bankruptcy), impasse resolution procedures would
"impose a settlement on teachers and face a strike", or "find a way to settle with SAEA on a
bail out." These statements do not constitute untrue assertions of fact, but merely express
SAEA's opinion as to what might happen in the event a contract was not reached.
he appeal mistakenly refers to this memo as dated February 24, 2004.
13
the District. 	Specifically, Charging Parties assert that the following statement contained
in
SAEA's
February 27, 2004 memo constituted a deliberate misstatements
of
fact:
"[The
District
was] either going to get taken over by the state (in lieu
of
bankruptcy), impose a settlement on
teachers and face a strike, or find a way to settle with SAEA on
a bail out." Charging Parties
assert that this statement by SAEA indicates that the District was "nearing a position
of
bankruptcy," which could have resulted in a state takeover as early as March 2004
if
members
failed to ratify the contract. In support
of
their position, Charging Parties assert that the Board
agent failed to consider the following evidence: (1) a January 23, 20048 District memo stating
that the District was able to pay its vendors and meet payroll; (2) a statement by a
representative
of
the Orange County Department
of
Education, Fiscal Management
Department, that the District was "fine for this year [i.e., 2003-2004]"; and (3) a statement by
the superintendent at the March 3, 2004 meeting that, while the District did need toreduce
expenditures, it was not facing imminent takeover. 	Charging Parties assertthat these facts
support their theory that the District was not facing bankruptcy
or a state takeover.
A review
of
the February 27, 2004 memo does not demonstrate that SAEA deliberately
misled members into ratifying the TA. 	The February 27 memo emphasizes that the District
was facing a severe solvency problem and that a strike by members would not alleviate such
concerns, and voices several possible options to alleviate the problem: 	the District
would
either be taken over by the state (in lieu
of
bankruptcy), impasse resolution procedures would
"impose a settlement on teachers and face a strike", or "find a way to settle with SAEA on a
bail out." These statements do not constitute untrue assertions
of
fact, but merely express
SAEA's opinion as to what might happen in the event a contract was not reached.
13
T The appeal mistakenly refers to this memo as dated February 24, 2004.

Whether that opinion was well or ill founded, the law permits a substantial amount of
rhetoric, especially during labor negotiations. (See e.g., Linn v. United Plant Guard Workers
of America, Local 113, et al. (1966) 383 U.S. 53 [libel suit dismissed against union in the
absence of malicious intent in making false statements]; see also, Sierra Publishing Company
v. ALRB (9th Cir. 1989) 889 F.2d 210 [finding that "the law does favor a robust exchange of
viewpoints" in the context of labor negotiations].) Accordingly, the charge fails to establish
that SAEA knowingly misrepresented facts to bargaining unit employees or that its statements
were made without a rational basis or devoid of honest judgment.
C. Statement that the CBA would be Nullified in the Event of a State Takeover
Charging Parties argue that the Board agent erred in dismissing the allegation that
SAEA misled its members to ratify a contract by stating that the CBA would be nullified in the
event of a state takeover. In support of this position, Charging parties rely on the following
statement in the February 27, 2004 memo:
Obviously we weren't looking forward to being taken over by the
State. The State would have the right to do all the cuts without
negotiations, if that happened. . . . And our contract and its
protections would be seriously curtailed.
Charging Parties further assert: (1) that a member of the bargaining team told teachers
at Macarthur Intermediate that, in the case of a state takeover, their tenured status would be at
risk and they would lose their seniority; and (2) that, at the March 5, 2004 meeting at Hoover
Elementary School, SAEA President Harrison stated that, if the members did not ratify the
contract, "we would "very possibly be taken over by the State in two weeks and faced with a
potential 10% pay cut and nullification of our contract.""
The quoted portion of the February 27, 2004, memo does not contain a
misrepresentation of fact. Nothing in the memo states that the CBA "would be nullified" in the
event of a state takeover. Instead, it merely expresses SAEA's opinion that, if the State were to
14
Whether that opinion was well or ill founded, the law permits a substantial amount
of
rhetoric, especially during labor negotiations. (See e.g., Linn
v.
United Plant Guard Workers
of
America, Local
113,
et
al.
(1966) 383 U.S.
53
[libel suit dismissed against union in the
absence
of
malicious intent in making false statements]; see also, Sierra Publishing Company
v.
NLRB (9th Cir. 1989) 889 F.2d 210 [finding that "the law does favor a robust exchange
of
viewpoints" in the context
of
labor negotiations].) Accordingly, the charge fails to establish
that SAEA knowingly misrepresented facts to bargaining unit employees or that its statements
were made without a rational basis or devoid
of
honest judgment.
C.
	Statement that the CBA would be Nullified in the Event
of
a State Takeover
Charging Parties argue that the Board agent erred in dismissing the allegation that
SAEA misled its members to ratify a contract by stating that the CBA would be nullified in the
event
of
a state takeover. In support
of
this position, Charging parties rely on the following
statement in the February 27, 2004 memo:
Obviously we weren't looking forward to being taken over by the
State. The State would have the right to do all the cuts without
negotiations,
if
that happened. . . . And our contract and its
protections would be seriously curtailed.
Charging Parties further assert: 	(
1)
that a member
of
the bargaining team told teachers
at Macarthur Intermediate that, in the case
of
a state takeover, their tenured status would be at
risk and they would lose their seniority; and (2) that, at the March 5, 2004 meeting at Hoover
Elementary School, SAEA President Harrison stated that,
if
the members did not ratify the
contract, "we would 'very possibly be taken over by the State in two weeks and faced with a
potential 10% pay cut and nullification of our contract."'
The quoted portion of the February 27, 2004, memo does not contain a
misrepresentation of fact. Nothing in the memo states that the CBA "would be nullified" in the
event of a state takeover. Instead, it merely expresses SAEA's opinion that, if the State were to
14

take over the District and if the State elected to cut wages and benefits, the existing contract
and its protections "would be seriously curtailed." Similarly, the alleged statements by SAEA
representatives do not contain misrepresentations of fact, but merely express an opinion as to
the possible impact of a state takeover. Therefore, the Board agent properly dismissed this
allegation.
D. Statement that There was No Alternative to Bailing Out the District for $29 Million
Charging Parties argue that the Board agent erred in dismissing the allegation that
SAEA engaged in misrepresentation by stating to employees that there was no alternative but
to "bail out" the District. This position is based upon the following statements:
February 27 memo:
The long and short of it is that no matter how we get there, we
will have to find $29 million to bail the District out. There are no
alternatives to that.
. . . they were either going to get taken over by the state (in lieu
of bankruptcy), impose a settlement on teachers and face a strike,
or find a way to settle with SAEA on a bail out.
(Emphasis added.)
Undated SAEAnswers memo:
We, the members of the Association, voted to underwrite SAUSD
and bail them out of their financial crises.
Repeat after me, 'We took a 4% pay cut to save SAUSD from
becoming insolvent.
Charging Parties assert that the statements constituted misrepresentations because, as
acknowledged by SAEA, there were other alternatives to a "bail out," namely, a state takeover
and "imposition" of a contract (via the statutory impasse resolution) process. We disagree that
sufficient evidence has been presented to establish that the above statements referencing a "bail
out" were untrue assertions of fact. Instead, the statements merely express SAEA's opinion
15
take over the District and if the State elected to cut wages and benefits, the existing contract
and its protections "would be seriously curtailed." 	Similarly, the alleged statements by SAEA
representatives do not contain misrepresentations of fact, but merely express an opinion as to
the possible impact of a state takeover. 	Therefore, the Board agent properly dismissed this
allegation.
D. Statement that There was No Alternative to Bailing Out the District for $29 Million
Charging Parties argue that the Board agent erred in dismissing the allegation that
SAEA engaged in misrepresentation by stating to employees that there was no alternative but
to "bail out" the District. This position is based upon the following statements:
February 27 memo:
The long and short of it is that no matter how we get there, we
will have to find $29 million to bail the District out. There are no
alternatives to that.
.... they were either going to get taken over by the state (in lieu
of bankruptcy), impose a settlement on teachers and face a strike,
or find a way to settle with SAEA on a bail out.
(Emphasis added.)
Undated SAEAnswers memo:
We, the members of the Association, voted to underwrite SAUSD
and bail them out of their financial crises.
Repeat after me, 'We took a 4% pay cut to save SAUSD from
becoming insolvent.'
Charging Parties assert that the statements constituted misrepresentations because, as
acknowledged by SAEA, there were other alternatives to a "bail out," namely, a state takeover
and "imposition" of a contract (via the statutory impasse resolution) process. We disagree that
sufficient evidence has been presented to establish that the above statements referencing a "bail
out" were untrue assertions of fact. 	Instead, the statements merely express SAEA' s opinion
15

that agreeing to contract terms including a salary reduction was the best course of action, given
the other alternatives. In this context, the term "bail out" simply indicates that SAEA believed
its salary concessions served to ameliorate the District's $29 million budget shortfall.
Moreover, as indicated above, because the SAEAAnswers memo was issued after ratification,
any statements therein cannot form the basis of a charge of misrepresentation. Therefore, the
Board agent properly dismissed this allegation.
E. Statement that the District had a $15 million debt that needed to be repaid
immediately
Charging Parties assert that the Board agent erred in dismissing the allegation that
SAEA misinformed its members that the District had a $15 million debt that needed to be
repaid immediately. Charging Parties assert that this statement constituted a misrepresentation
of fact because the District failed to inform the members that it was not legally required to pay
the money back "immediately," although it may have been "politically" advantageous to do so.
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." 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 (Department of Food and Agriculture), 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.)
Charging Parties failed to meet their burden under Department of Food and
Agriculture. Neither the original charge, the amended charge, nor the appeal identify when the
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
16
that agreeing to contract terms including a salary reduction was the best course
of
action, given
the other alternatives. In this context, the term "bail out" simply indicates that SAEA believed
its salary concessions served to ameliorate the District's $29 million budget shortfall.
Moreover, as indicated above, because the SAEAAnswers memo was issued after ratification,
any statements therein cannot form the basis
of
a charge
of
misrepresentation. Therefore, the
Board agent properly dismissed this allegation.
E.
	Statement that the District had a $15 million debt that needed to be repaid
immediately
Charging Parties assert that the Board agent erred in dismissing the allegation that
SAEA misinformed its members that the District had a $15 million debt that needed to be
repaid immediately. Charging Parties assert that this statement constituted a misrepresentation
of
fact because the District failed to inform the members that it was not legally required to pay
the money back "immediately," although it may have been "politically" advantageous to do so.
PERB Regulation 32615(a)(5)9 requires, inter alia, that an unfair practice charge
include a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice." The charging party'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 (Department
of
Food and Agriculture), 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.)
Charging Parties failed to meet their burden under Department
of
Food and
Agriculture. 	Neither the original charge, the amended charge, nor the appeal identify when the
9 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
16

statement was made, by whom, and to whom it was made. Moreover, Charging Parties have
failed to identify any specific authority for the proposition that the District was not "legally"
required to pay back the debt. Accordingly, the Board agent properly dismissed this allegation.
F. Statement that cost of living increase resulting from Proposition 57 had already been
incorporated into the District's Projections
Charging Parties assert that the Board agent erred in finding that the March 23, 2004
statement from President Harrison, that waiting until after the Proposition 57 vote to ratify the
tentative agreements would not have changed the need for a 4 percent salary reduction, was a
misrepresentation of fact made to secure ratification. Given that the statement was made after
ratification, we agree with the Board agent that the charge fails to demonstrate that the
Association misrepresented a fact to secure ratification of the tentative agreements.
II. Opportunity for Employees to Comment Prior to Ratification
Charging Parties assert that the Board agent erred in finding that SAEA did not violate
its duty of fair representation by failing to provide members sufficient time to comment prior
to holding the tentative agreement ratification election. Specifically, Charging Parties allege
that SAEA denied Salgado the opportunity to make comments at the March 8 and 10, 2004
informational meetings.
Generally, PERB will not review matters concerning internal union affairs unless they
have a substantial impact on the relationship of unit members to their employer so as to give
rise to the duty of fair representation. (Kimmer; see also, California State Employees
Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-S; California State
Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S; California State
Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S.) However,
"[the duty of fair representation implies some consideration of the views of various groups of
employees and some access for communication of those views, but there is no requirement that
17
statement was made, by whom, and to whom it was made. Moreover, Charging Parties have
failed to identify any specific authority for the proposition that the District was not "legally"
required to pay back the debt. 	Accordingly, the Board agent properly dismissed this allegation.
F.
	Statement that cost
of
living increase resulting from Proposition 57 had already been
incorporated into the District's Projections
Charging Parties assert that the Board agent erred in finding that the March 23, 2004
statement from President Harrison, that waiting until after the Proposition 57 vote to ratify the
tentative agreements would not have changed the need for a 4 percent salary reduction, was a
misrepresentation
of
fact made to secure ratification. 	Given that the statement was made after
ratification, we agree with the Board agent that the charge fails to demonstrate that the
Association misrepresented a fact to secure ratification
of
the tentative agreements.
II. 	Opportunity for Employees to Comment Prior to Ratification
Charging Parties assert that the Board agent erred in finding that SAEA did not violate
its duty
of
fair representation by failing to provide members sufficient time to comment prior
to holding the tentative agreement ratification election. Specifically, Charging Parties allege
that SAEA denied Salgado the opportunity to make comments at the March 8 and 10, 2004
informational meetings.
Generally, PERB will not review matters concerning internal union affairs unless they
have a substantial impact on the relationship
of
unit members to their employer so as to give
rise to the duty
of
fair representation. (Kimmet; see also, California State Employees
Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-S; California State
Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S; California State
Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S.) However,
"[t]he duty of fair representation implies some consideration of the views of various groups of
employees and some access for communication of those views, but there is no requirement that
17

formal procedures be established." (Kimmett, citing Letter Carriers, Branch 6000 v. NLRB
(1979) 595 F.2d 808, 813; Waiters Union, Local 781 v. Hotel Association (D.C. Cir. 1974)
498 F.2d 998, 1000.) When weighing the means of notice and communication, the Board has
determined that the denial of formal voting structure to nonmembers does not constitute a
"substantial impact" on the relationship of unit members to their employer. (El Centro
Elementary Teachers Association (1982) PERB Decision No. 232 (El Centro).) Instead, so
long as the views of employees are given "some consideration" in advance of a ratification
election, the duty of fair representation is satisfied. (Ibid.; Himes.)
Charging Parties have failed to demonstrate that the attempted refusal to permit one
individual to speak at two informational meetings had a substantial impact on their
employment relationship with the District so as to violate the duty of fair representation. The
record indicates that Charging Parties and other employees were provided ample notice of the
proposed contracts prior to the ratification vote, including the opportunity to attend the
March 3, 2004 Emergency Representative Council meeting and three informational meetings
on March 8, 9 and 10, 2004. SAEA sent all members a ballot and a synopsis of the tentative
agreements, and provided access to the full tentative agreements on its website. Charging
Parties have not established that they were deprived of the opportunity to voice their concerns
about the contracts. O'Neil actively opposed the tentative agreements. Moreover, in their
amended charge, Charging Parties assert that, although Salgado was told that the March 8
meeting was SAEA's forum, not his, the members present at that meeting indicated their desire
to hear what he had to say and "a vote was taken through which it was determined that a
majority of those in attendance wanted to hear Mr. Salgado speak." The amended charge
further alleges that, at the March 10 meeting, Hall-Kessler only attempted to end Salgado's
questions and comments, and concludes with the question, "Is the requirement to provide the
18
formal procedures be established." (Kimmett, citing Letter Carriers, Branch 6000
v.
NLRB
(1979) 595 F.2d 808, 813; Waiters Union, Local
781
v.
Hotel Association (D.C. Cir. 1974)
498 F.2d 998, 1000.) When weighing the means
of
notice and communication, the Board has
determined that the denial
of
formal voting structure to nonmembers does not constitute a
"substantial impact" on the relationship
of
unit members to their employer. (El Centro
Elementary Teachers Association (1982) PERB Decision No. 232 (El Centro).) Instead, so
long as the views
of
employees are given "some consideration" in advance
of
a ratification
election, the duty
of
fair representation is satisfied. (Ibid.; Himes.)
Charging Parties have failed to demonstrate that the attempted refusal to permit one
individual to speak at two informational meetings had a substantial impact on their
employment relationship with the District so as to violate the duty
of
fair representation. 	The
record indicates that Charging Parties and other employees were provided ample notice
of
the
proposed contracts prior to the ratification vote, including the opportunity to attend the
March 3, 2004 Emergency Representative Council meeting and three informational meetings
on March 8, 9 and 10, 2004. 	SAEA sent all members a ballot and a synopsis
of
the tentative
agreements, and provided access to the full tentative agreements on its website. 	Charging
Parties have not established that they were deprived
of
the opportunity to voice their concerns
about the contracts. O'Neil actively opposed the tentative agreements. Moreover, in their
amended charge, Charging Parties assert that, although Salgado was told that the March 8
meeting was SAEA's forum, not his, the members present at that meeting indicated their desire
to hear what he had to say and "a vote was taken through which it was determined that a
majority
of
those in attendance wanted to hear Mr. Salgado speak." The amended charge
further alleges that, at the March l O meeting, Hall-Kessler only attempted to end Salgado's
questions and comments, and concludes with the question, "Is the requirement to provide the
18

'opportunity to comment at the informational meeting' met if the member is told he does not
have the right to speak but speaks anyway?" Thus, the amended charge indicates that, in fact,
Salgado did speak at both meetings. In addition, while the charge alleges that Charging Parties
were not permitted to utilize SAEA's informational meetings and District mailboxes to
communicate their views to other employees, the charge does not establish that SAEA
prevented members from expressing their views to SAEA and to other members by other
means. Accordingly, the Board agent properly dismissed this allegation.
III. Compliance With Union By-Laws
Charging Parties assert that the Board erred in finding that the amended charge failed to
establish that SAEA's alleged failure to adhere to its internal rules had a substantial impact on
Charging Parties' employment relationship, or that any violations were made without a rational
basis or devoid of honest reason. In their appeal, Charging Parties assert that "it was obvious
that the vote would have been different" had SAEA not violated its internal by-laws governing
the requisite notice, meetings, and materials to be provided to members prior to contract
ratification elections. Charging Parties further assert that following the bylaws would have
allowed members to hear challenges to SAEA's alleged misrepresentations of fact, criticisms
to SAEA's analysis of the District's budget or alternative analyses, and lobbying for other
alternatives, all of which "could reasonably be expected to have persuaded the membership to
vote against ratification of a 4% pay cut."
The alleged failure to comply with internal union rules governing the ratification
process does not violate the duty of fair representation in the absence of a substantial impact on
the relationship of employees to their employer. (California State Employees Association
(Hackett) (1993) PERB Decision No. 1012-S.) Mere speculation, conjecture or legal
conclusions are insufficient to establish a prima facie case. (United Teachers-Los Angeles
19
'opportunity to comment at the informational meeting' met
if
the member is told he does not
have the right to speak but speaks anyway?" Thus, the amended charge indicates that, in fact,
Salgado did speak at both meetings. In addition, while the charge alleges that Charging Parties
were not permitted to utilize SAEA's informational meetings and District mailboxes to
communicate their views to other employees, the charge does not establish that SAEA
prevented members from expressing their views to SAEA and to other members by other
means. Accordingly, the Board agent properly dismissed this allegation.
III. Compliance With Union By-Laws
Charging Parties assert that the Board erred in finding that the amended charge failed to
establish that SAEA's alleged failure to adhere to its internal rules had a substantial impact on
Charging Parties' employment relationship, or that any violations were made without a rational
basis or devoid
of
honest reason. In their appeal, Charging Parties assert that "it was obvious
that the vote would have been different" had SAEA not violated its internal by-laws governing
the requisite notice, meetings, and materials to be provided to members prior to contract
ratification elections. Charging Parties further assert that following the bylaws would have
allowed members to hear challenges to SAEA's alleged misrepresentations
of
fact, criticisms
to SAEA's analysis
of
the District's budget or alternative analyses, and lobbying for other
alternatives, all
of
which "could reasonably be expected to have persuaded the membership to
vote against ratification
of
a 4% pay cut."
The alleged failure to comply with internal union rules governing the ratification
process does not violate the duty of fair representation in the absence
of
a substantial impact on
the relationship of employees to their employer. ( California State Employees Association
(Hackett) (1993) PERB Decision No. 1012-S.) 	Mere speculation, conjecture or legal
conclusions are insufficient to establish a prima facie case. (United Teachers-Los Angeles
19

(Ragsdale) (1992) PERB Decision No. 944; Regents of the University of California (2005)
PERB Decision No. 1771-H.)
Charging Parties' position that compliance with SAEA's internal rules would have
affected the outcome of the ratification vote is based upon speculation without any supporting
facts. PERB will not speculate that the contract would not have been ratified if SAEA had
followed its bylaws or that the ratification vote would have somehow been different. The
various acts described, even if negligent, do not show that SAEA acted in an arbitrary,
discriminatory, or bad faith manner. Thus, a prima facie case has not been established.
IV. Refusal to Permit Charging Parties to Use District Mailboxes to Distribute Materials
Charging Parties do not appeal the Board agent's dismissal of that portion of the charge
alleging that SAEA unlawfully threatened to impose discipline on them for attempting to use
District mailboxes to distribute materials. They do, however appear to assert on appeal that
SAEA's failure to allow them to access District mailboxes violated SAEA's internal rules and
had a significant effect on their employment relationship, namely, the ratification of the
contract resulting in a 4 percent pay cut. As indicated above, Charging Parties' speculation
that compliance with internal union rules would have had a substantial impact on their
employment relationship is insufficient to establish a prima facie case. Moreover, the right of
access to employer mailboxes under EERA attaches only to the employee organization, not
individual employees. (EERA, $ 3543.1(b); Los Rios Community College District (1990)
PERB Decision No. 833.) In addition, there is no evidence that Charging Parties were
prevented from communicating to members via alternative communication channels, other than
the District's mailbox system. Therefore, the amended charge fails to demonstrate a prima
facie breach of the duty of fair representation.
20
(Ragsdale) (1992) PERB Decision No. 944; Regents
of
the University
of
California (2005)
PERB Decision No. 1771-H.)
Charging Parties' position that compliance with SAEA's internal rules would have
affected the outcome
of
the ratification vote is based upon speculation without any supporting
facts. 	PERB will not speculate that the contract would not have been ratified
if
SAEA had
followed its bylaws or that the ratification vote would have somehow been different. The
various acts described, even
if
negligent, do not show that SAEA acted in an arbitrary,
discriminatory, or bad faith manner. 	Thus, a prima facie case has not been established.
IV. Refusal to Permit Charging Parties to Use District Mailboxes to Distribute Materials
Charging Parties do not appeal the Board agent's dismissal
of
that portion
of
the charge
alleging that SAEA unlawfully threatened to impose discipline on them for attempting to use
District mailboxes to distribute materials. 	They do, however appear to assert on appeal that
SAEA's failure to allow them to access District mailboxes violated SAEA's internal rules and
had a significant effect on their employment relationship, namely, the ratification
of
the
contract resulting in a 4 percent pay cut. As indicated above, Charging Parties' speculation
that compliance with internal union rules would have had a substantial impact on their
employment relationship is insufficient to establish a prima facie case. Moreover, the right
of
access to employer mailboxes under EERA attaches only to the employee organization, not
individual employees. 	(EERA, § 3 543. l (b); Los Rios Community College District ( 1990)
PERB Decision No. 833.) In addition, there is no evidence that Charging Parties were
prevented from communicating to members via alternative communication channels, other than
the District's mailbox system. Therefore, the amended charge fails to demonstrate a prima
facie breach of the duty of fair representation.
20

V. SAEA's Conduct in Negotiating Agreement with a 4 Percent Pay Cut
Charging Parties assert that the Board agent erred in dismissing the allegation that
SAEA's conduct was without a rational basis and went beyond mere negligence or poor
conduct because: (1) SAEA entered into a tentative agreement for a 4 percent pay cut days
before a ballot measure passed granting a 1.84 percent COLA that was not included in the
District's projections; and (2) the agreement to the 4 percent pay cut did not include language
on "deficit-reduction and equalization revenue when using a formula to determine the amount
of anticipated COLA to later be applied to the salary schedule. (Failure to include this
language later led to serious ramifications related to benefits.)"
As noted above, to establish a violation of the duty of fair representation in the context
of contract negotiations, a party must show that the exclusive representative's conduct was
arbitrary, discriminatory or in bad faith. (Collins.) Thus, to establish a prima facie case,
Charging Parties must allege sufficient facts to establish the manner in which the exclusive
representative's action or inaction was without a rational basis or devoid of honest judgment.
(Reed, Rocklin.)
Charging Parties have failed to allege sufficient facts to establish that SAEA's decision
to agree to a contract with a 4 percent salary cut was without a rational basis or devoid of
honest judgment. There is no question that the District was facing a severe financial crisis.
The evidence presented to the Board agent reveals that SAEA considered other alternatives
during the course of negotiations, but ultimately concluded that the pay cut was in the best
interest of its members overall. While reasonable minds may differ as to whether or not it was
absolutely necessary for SAEA to agree to the pay cut in order to ameliorate the District's
financial situation, the charge does not allege facts showing that SAEA's conduct was
arbitrary, discriminatory or in bad faith. Charging Parties' assertion that SAEA failed to
21
V.
	SAEA's Conduct in Negotiating Agreement with a 4 Percent Pay Cut
Charging Parties assert that the Board agent erred in dismissing the allegation that
SAEA' s conduct was without a rational basis and went beyond mere negligence or poor
conduct because: (1) SAEA entered into a tentative agreement for a 4 percent pay cut days
before a ballot measure passed granting a 1.84 percent COLA that
vvas
not included in the
District's projections; and (2) the agreement to the 4 percent pay cut did not include language
on "deficit-reduction and equalization revenue when using a formula to determine the amount
of
anticipated COLA to later be applied to the salary schedule. (Failure to include this
language later led to serious ramifications related to benefits.)"
As noted above, to establish a violation
of
the duty
of
fair representation in the context
of
contract negotiations, a party must show that the exclusive representative's conduct was
arbitrary, discriminatory or in bad faith. 	(Collins.) Thus, to establish a prima facie case,
Charging Parties must allege sufficient facts to establish the manner in which the exclusive
representative's action or inaction was without a rational basis or devoid
of
honest judgment.
(Reed, Rocklin.)
Charging Parties have failed to allege sufficient facts to establish that SAEA's decision
to agree to a contract with a 4 percent salary cut was without a rational basis or devoid
of
honest judgment. 	There is no question that the District was facing a severe financial crisis.
The evidence presented to the Board agent reveals that SAEA considered other alternatives
during the course
of
negotiations, but ultimately concluded that the pay cut was in the best
interest
of
its members overall. While reasonable minds may differ as to whether or not it was
absolutely necessary for SAEA to agree to the pay cut in order to ameliorate the District's
financial situation, the charge does not allege facts showing that SAEA's conduct was
arbitrary, discriminatory or in bad faith. 	Charging Parties' assertion that SAEA failed to
21

consider the impact of Proposition 57 on the District's finances and to include additional
language to determine the amount of the COLA are insufficient to demonstrate that the
Association breached its duty of fair representation.
ORDER
The unfair practice charge in Case No. LA-CO-1 170-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Wesley joined in this Decision.
22
consider the impact
of
Proposition
57
on the District's finances and to include additional
language to determine the amount
of
the COLA are insufficient to demonstrate that the
Association breached its duty
of
fair representation.
22
ORDER
The unfair practice charge in Case No. LA-CO-1170-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.