Beaumont Teachers Association/California Teachers Association (Grace) (PERB 2260E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DEL M. GRACE,
Charging Party, Case No, LA-CO-1411-E
Vv. PERB Decision No. 2260
BEAUMONT TEACHERS ASSOCIATION/CTA, April 26, 2012
Respondent. _

Appearance: Anyiam Law Firm Inc. by Christian U. Anyiam, Attorney, for Del M. Grace.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Del M. Grace of a PERB Office of the General Counsel’s
dismissal (attached) of her unfair practice charge. The charge, as amended, alleged that the
Beaumont Teachers Association/CTA (Association) violated the Educational Employment
Relations Act (EERA) ' regarding the handling of a grievance. The issue raised by the
allegations in the charge was whether the Association breached its duty of fair representation.
The Board agent dismissed the charge, concluding that it failed to state a prima facie case.

The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. Based on our review and
consideration, the Board finds the Board agent’s warning and dismissal letters to be well-
reasoned, adequately supported by the record and in accordance with the applicable law.

Accordingly, the Board hereby dismisses the charge, adopting the warning and dismissal letters

'EERA is codified at Government Code section 3540 et seq.

of
the Board agent
as
the decision
of
the Board itself2 as supplemented by the following brief
discussion
of
issues raised by the appeal.
DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a),3 an appeal from dismissal shall:
(1) State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
this regulation, the appeal must sufficiently place the
Board and the respondent "on notice
of
the issues raised on appeal." (State Employees
Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H; City & County
of
San Francisco (2009) PERB Decision No. 2075-M.) An appeal that does not reference the
substance
of
the Board agent's dismissal fails to comply with PERB Regulation 32635,
subdivision (a). (United Teachers
of
Los Angeles (Pratt) (2009) PERB Order No. Ad-381;
Lodi Education Association (Ruddock) (1995) PERB Decision No. 1124; United Teachers -
Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Likewise, an appeal that merely
reiterates facts alleged in the unfair practice charge does not comply with PERB
Regulation 32635, subdivision (a). (Contra Costa County Health Services Department (2005)
Regarding reference in the warning and dismissal letters to the Beaumont Unified
School District's (District) denial of the grievance at level II on or about July 20, 2009, it
should be noted that there were two grievances. One grievance concerned a performance
evaluation for the 2007-2008 school year and the other concerned a performance evaluation for
the 2008-2009 school year. 	former was denied by the District because it lacked merit and
was filed in an untimely fashion. 	The 	was denied by 	District for lack of 	only.
This note is provided for factual clarification only and effects no change in either the legal
analysis of the charge as set forth by the Board agent in the warning and dismissal letters or the
outcome of this appeal.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

PERB Decision No. 1752-M; County
of
Solano (Human Resources Department (2004) PERB
Decision No. 1598-M.)
Here, the appeal consists entirely
of
allegations and arguments previously made at the
charge processing stage
of
this proceeding. The appeal advances no argument that was not
considered and addressed by the Board agent in processing the charge. In fact, much
of
the
appeal repeats in verbatim text from a document that accompanied the amended charge. 	The
appeal does not reference any portion
of
the Board agent's determination or otherwise state the
specific issues
of
procedure, fact, law or rationale to which the appeal is taken. Nor does it
identify the page or part
of
the dismissal to which the appeal is taken or state the grounds.
Thus, the appeal is subject to dismissal on this ground alone. (City
of
Brea (2009) PERB
Decision No. 2083-M.)
ORDER
The unfair practice charge in Case No. LA-CO-1411-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Calvin Dowdillo and Huguenin joined in this Decision.
3

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
,,o'~'"' ,,,,,,0	
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (8 I 8) 551-2805
Fax: (8 I 8) 551-2820
September 6, 2011
Christian U. Anyiam, Esq.
Anyiam Law Firm, Inc.
1073 7 Laurel Street, Suite 102
Rancho Cucamonga, CA 91730
Re: 	Del M Grace v. Beaumont Teachers Association/CTA
Unfair Practice Charge No. LA-CO-1411-E
DISMISSAL LETTER
Dear Mr. Anyiam:
EDMUND G. BROWN JR., Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 31, 2009 and amended on August 25 and 26, 2011. 	Del
_M. Grace (Ms. Grace or Charging Party) alleges that the Beaumont Teachers Association/CTA
(Association or Respondent) violated the Educational Employment Relations Act (EERA or
Act) 1 by failing in its duty of fair representation regarding the handling of a grievance.
Charging Party was informed in the attached Warning Letter dated August 11, 2011, that the
above-referenced charge did not state a prima facie case. 	Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge should be amended. Charging Party was further advised
that, unless the charge was amended to state a prima facie case or withdrawn prior to August
18, 2011, the charge would be dismissed.
After receiving the Warning Letter, Ms. Grace contacted the undersigned and was granted an
extension of time to file an amended charge until August 25, 2011. On August 24, 2011, I had
a telephone conversation with Ms. Grace and answered a question regarding service of the
amended charge on the Respondent. 	On the morning of August 25, 2011, I had another
telephone conversation with Ms. Grace, wherein she stated that the amended charge would be
filed via facsimile that afternoon. 	Shortly thereafter, I received a telephone call from Christian
Anyiam, who stated that he had been retained as counsel for Ms. Grace. Mr. Anyiam
requested an additional extension of time of between five and seven days to respond to the
Warning Letter. 	I stated to Mr. Anyiam that I had had several conversations with Ms. Grace,
including most recently that morning, and Ms. Grace had not indicated either that she needed
additional time to respond to the Warning Letter, or that she had retained counsel. 	To the
contrary, Ms. Grace had stated that the amended charge would be filed that afternoon. I
reminded Mr. Anyiam that Ms. Grace had already been granted an extension of time, and thus
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1411-E
September 6, 2011
Page 2
I did not find good cause under the circumstances to grant the additional extension he sought.
Shortly after that conversation ended, I received a conference call from both Ms. Grace and
Mr. Anyiam. Ms. Grace confirmed that Mr. Anyiam now represented her. 	I granted a one-day
additional extension of time until August 26, 2011 to file an amended charge. 	Later that
afternoon, PERB received via facsimile from Mr. Anyiam a document "in response to" the
Warning Letter. 	On August 26, 2011, an amended charge was timely filed. 	I consider these
documents together to constitute the amended charge.
Information Provided in the Amended Charge
As summarized in the Warning Letter, Ms. Grace filed a grievance on or about June 5, 2009
with the Beaumont Unified School Dihrict (District) regarding alleged violations of the
evaluation procedure in the collective bargaining agreement (CBA) between the District and
the Association. Association representatives accompanied Ms. Grace to grievance meetings at
levels I and II. The District denied the grievance at level II based on the assertion that it was
initially untimely filed outside of the 20-day period set forth in the CBA. The Association
failed to timely file the grievance at level III within five days of the denial at level II, and
informed Ms. Grace of the missed deadline.
In the amended charge, Charging Party asserts that the District's denial of the grievance based
on an untimely filing was incorrect, because the CBA provides that a grievance must be filed
within 20 business days, and thus her filing was timely. Charging Party argues that the
Association should have advocated for her on this ground. 	Charging Party also argues that it
demonstrates bad faith for a union to miss an important filing deadline, which has the effect of
foreclosing any right of the employee to pursue the violation. 	Charging Party also asserts that
the conduct of the Association in this matter shows that it: "deliberately missed the deadline to
file a level III grievance, then happily informed the affected member that it missed the
deadline .... "
For the reasons to follow, the charge, as amended, fails to correct the deficiencies outlined in
the Warning Letter.
Discussion
As thoroughly discussed in the Warning Letter, a union's duty of fair representation extends to
grievance handling. 	( United Teachers of Los Angeles (Collins) (1982) PERB Decision
No. 258.) The Warning Letter informed Charging Party that PERB has declined to find a
breach of a union's duty of fair representation by merely negligent acts, such as missing
grievance filing deadlines. (!BEW Local I 245 (Flowers) (2009) PERB Decision No. 2079-M;
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) The Warning
Letter also discussed that whe~e a CBA provides an employee the right to present grievances
without the aid of the union, PERB has found that a union's failure to file a grievance does not
demonstrate a breach of its fair representation duty. (Service Employees International Union,
Local 99 (Arteaga) (2008) PERB Decision No. 1991.) The Warning Letter noted that in this
case, the CBA between the Association and the District provides that employees can present

LA-CO-1411-E
September
6,
2011
Page 3
grievances without the aid
of
the Association, and that even though the Association
accompanied her to grievance meetings, Ms. Grace filed the grievance herself at levels I and
II.
The Charging Party's assertion that the Association's failure
to
file the grievance at the next
stage
of
processing had the effect
of
"foreclosing" her right to pursue the claim is therefore
factually unsupported in the record. Thus, even
if
the Association acted negligently in missing
the filing deadline for level III, such conduct does not demonstrate a breach
of
the
Association's representational duty. Ms. Grace asserts that the Association "deliberately"
missed the deadline and "happily" informed her
of
such. Pleading or raising bare allegadons,
without providing specific factual information in support thereof, does not meet the Charging
Party's burden
of
stating a prima facie case. (California School Employees Association
(Lohmann) (1991) PERB Decision No. 898.) There are no facts demonstrating that the
Association's conduct was arbitrary, discriminatory, or in bad faith.
Accordingly, for the reasons discussed herein and for the facts and reasons supplied in the
August 11, 2011 Warning Letter, the charge does not state a prima facie case and is therefore
dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8,
§§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8, §§
32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1411-E
September
6,
2011
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. (Cal. Code Regs, tit.
8,
§ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
§ 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By
_ 	__
_	
~	
___________
Valerie Pike Racho
Regional Attorney
Attachment
cc: Robert E. Lindquist, Attorney

STATE OF CAUFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2805
Fax: (818) 551-2820
August 11, 2011
Del M. Grace
29120 Sandlewood P
Highland, CA 92346
lace
Re: 	Del M Grace v. Beaumont Teachers Association/CTA
Unfair Practice Charge No. LA-CO-1411-E
WARNING LETTER
Dear Ms. Grace:
EDMUNDG. 	Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 31, 2009. Del M. Grace (Ms. Grace or Charging Party)
alleges that the Beaumont Teachers Association/CTA (Association or Respondent) violated the
Educational Employment Relations Act (EERA or Act) 1 by failing in its duty of fair
representation. Investigation of the charge revealed the following relevant information. 2
Facts as Alleged
At all relevant times, Ms. Grace was employed as a probationary Nurse Practitioner in the
Beaumont Unified School District (District) and included in a bargaining unit exclusively
represented by the Association. The District and the Association were parties to a collective
bargaining agreement (CBA) in effect through June 30, 2010. 	·
On or about June 5, 2009,3 Ms. Grace filed a grievance over an evaluation that she had
received on or around May 12. Ms. Grace contends the evaluation contained unsupported,
derogatory information. The crux of the grievance is that Ms. Grace was not observed on three
occasions in support of the evaluation as required under the CBA. Ms. Grace states that under
the terms of the CBA, teachers are required to be observed formally, but there is no parallel
requirement that non-teaching unit members be formally observed. An informal grievance
meeting was held on or around June 3, wherein Ms. Grace was accompanied by an Association
representative .
. 1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
Regulations may be found at www.perb.ca.gov.
2 The Association filed a position statement in response to the charge on January 28,
2010. A Board agent is permitted to consider undisputed facts supplied by a respondent during
charge investigation. (Service Employees International Union #790 (Adza) (2004) PERB
Decision No .. 1632-M.)
3 All dates herein refer to 2009 unless stated otherwise.

LA-CO-1411-E
August 11, 2011
Page 2
Or about June 17, the District denied the grievance at level I for lack of merit/no CBA
violation. 	On or about June 25, Ms. Grace filed the grievance at level II, seeking additional
review. 	On or about July 8, a level II meeting was held. It is not clear whether the Association
attended this meeting. On or about July 20, the District denied the grievance at level II based
on an initial untimely filing (conduct occurred on May 12 and grievance was filed June 5)
outside of the 20-day timeframe in the CBA.
On or about August 26, Association representative Trina Brown left a voice-mail message for
Ms. Grace stating that she had missed the deadline for filing the grievance at level III, which
apparently required such filing within five days of the decision rendered at level II.
The CBA grievance procedure at Article 10.6.5 provides:
A unit member may at any time present grievances to the District,
and have such grievances adjusted, without the intervention of the
Association.
Ms. Grace states that the Association was negligent "in not providing an appropriate and fair
process to utilize the Standards already in place to complete evaluations for Non-Teaching
licensed unit members at [the District], i.e. Nurses, Psychologist, Speech Therapist."
The above-discussed facts do not demonstrate a prima facie violation of EERA for the reasons
discussed below.
Discussion
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont 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:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance if the chances for success are minimal.
(Id. at Proposed Decision, p. 8.)

LA-CO-1411-E
August 11, 2011
Page 3
'
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a charging party:
must at a minimum include an assertion
of
sufficient facts from
which it becomes apparent how or in what manner the exclusive
representative's action or inaction was without a rational basis or
devoid
of
honest judgment.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
In Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H, the Board,
following federal precedent, held that a union's "mere negligence" may breach the duty
of
fair
representation only "in cases in which the individual interest at stake is strong and the union's
failure to perfonn a ministerial act completely extinguishes the employee's right to pursue his
claim." (Quoting Dutrisac
v.
Caterpillar Tractor
Co.
(9th Cir.1983) 749 F.2d 1270, 1274.)
Typically, however, mere negligence in grievance handling-such
as
missing filing
deadlines
does not constitute a violation
of
the duty
of
fair representation. (!BEW Local 1245 (Flowers)
(2009) PERB Decision No. 2079-M; United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Where a CBA provides an employee the right to present grievances without
the aid
of
the union, PERB has found that the union's failure to file a grievance does not
demonstrate a breach
of
its fair representation duty. (Service Employees International Union,
Local 99 (Arteaga) (2008) PERB Decision No. 1991.)
Ms. Grace does not allege, and the facts in the charge do not demonstrate, any conduct by the
Association that can be deemed arbitrary, discriminatory, or in bad faith. Furthermore, Ms.
Grace filed the grievance herself at levels I and II as permitted under the CBA. Therefore, the
Association's failure to file the grievance at level III, even
if
negligent, did not extinguish Ms.
Grace's right to pursue her claim and cannot establish a breach of the duty of fair representation
under the authorities discussed· above.
To the extent that Ms. Grace alleges the Association's failure to assert her right under the CBA
to be formally observed by the District in support
of
her performance evaluation amounts to
"negligence," this also does not demonstrate a violation of the duty of fair representation. A
union is not required to satisfy all unit members, is not barred from making an agreement that
has an unfavorable effect on some unit members, and is not obligated to bargain an item that
will benefit certain unit members only. (California School Employees Association & its
Chapter 168 (Gibson) (2010) PERB Decision No. 2128.)
In conclusion, the facts in the charge do not establish a violation of the Association's duty of
fair representation. Accordingly, the charge must be dismissed.

LA-CO-1411-E
August 11, 2011
Page4
For these reasons the charge, as presently written, does not state a prima facie case. 4
If
there
are any factual inaccuracies in this letter or additional facts that would correctthe deficiencies
explained above, Charging Party may amend the charge. 	The amended charge should
be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. 	The amended charge
must
be
served on the Respondent's representative and the original proof
of
service must he filed with
PERB.	
If
an amended charge or withdrawal
is
not.filed on or before August 18, 2011,5 PERB
will dismiss your charge. 	If you have any questions, please call me at the above telephone
number.
Sincerely,
Valerie Pike Racho
Regional Attorney
VR
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause
of
action and that the
charging party is capable of providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)