Oxnard Federation of Teachers (Collins) (PERB 2266E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOREEN A LYNN COLLINS,
Charging Party,
V.
OXNARD FEDERATION OF TEACHERS,
Respondent.
Case No. LA-CO-1417-E
PERB Decision No. 2266
May 25, 2012
Appearance: 	Law Office of Harry F. Berman by Harry F. Berman, Attorney, for Loreena Lynn
Collins.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Loreena Lynn Collins (Coilins) from a dismissal (attached) of
an unfair practice charge by PERB' s Office of the General Counsel. The charge alleged that
the Oxnard Federation of Teachers (Federation) violated the Educational Employment
Relations Act (EERA) 1 by refusing to arbitrate a grievance on Collins' behalf and by making a
threatening statement. The charge alleged that this conduct violated EERA section 3543.6 and
breached the Federation's duty of fair representation. The Office of the General Counsel
dismissed the charge for failure to state a prima facie case.
We have reviewed the entire record in this case and given full consideration to the
appeal. Based on that review, the Board finds the warning and dismissal letters to be
reasoned, adequately supported by the record and in accordance with the applicable law.
1 EERA is codified at Government Code section 3 540 et seq.

Accordingly, the Board affirms the dismissal of the charge and hereby adopts the warning and
dismissal letters as the decision of the Board itself as supplemented below.
DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a),2 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 (Huddock) (1995) PERB Decision No. 1124; United Teachers -
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) PERB Decision
No. 1752-M; County of Solano (Human Resources Department (2004) 	Decision
No. 1598-M.)
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Here, the appeal3 consists of a one-page letter (appeal letter) plus a repaginated
effective duplicate of the seven-page supplement (supplement) to the amended charge. 	There
appears to be only one discernible difference between the version of the supplement filed with
the amended charge and the version of the supplement filed with the appeal letter. In the
version filed with the amended charge, the first sentence states: "This is the first amendment
to the above referenced case." In the version filed with the appeal letter, the first sentence
states: 	"This is our appeal of dismissal to the above referenced case." Collins asserts in the
appeal letter that she submitted "our entire amended complaint as the basis of our appeal." As
stated above, an appeal that merely reiterates facts alleged in the unfair practice charge does
not comply with PERB Regulation 32635, subdivision (a).
Collins also asserts in the appeal letter that the dismissal misstates the basic issues of
the case by focusing on the personal behavior of the District administrators and Federation
officials. 	We disagree with Collins' characterization of the dismissal. The dismissal properly
addresses whether the factual allegations of the charge state any possible prima facie case. 	The
appeal does not reference any particular portion of the dismissal 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.)
Finally, Collins asserts that the Office of General Counsel "capriciously" dismissed her
case, speculating that it was because of workload, 	lag or "at 	of 	umon, or
district counsel." There is no merit to this claim.
Collins filed a companion charge against the Oxnard Union High School District
(District). Collins also appealed from the dismissal of that charge. Except for the width of the
margins, the appeal document filed in that case appears identical to the appeal document filed
in this case. The Board affirmed the dismissal in PERB Case No. LA-CE-5421-E.
3

ORDER
The unfair practice charge in Case No. LA-CO-1417-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
4

( 	EDMUND G.
BROWN
JR., Governor	STATE
OF CALIFORNIA
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
June21,2011
Harry F. Berman, Esquire
National Association
of
Government Employees
1819 Knoll Drive, #17
Ventura, CA 93003
Loreena Lynn Collins
v.
Oxnard Federation
of
Teachers
Unfair Practice Charge No. LA-CO-1417-E
DISMISSAL LETTER
Dear Mr. Berman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 29, 2010 and amended on June
8,
2011. Loreena Lynn
Collins (Ms. Collins or Charging Party) alleges that the Oxnard Federation
of
Teachers (Union
or Respondent) violated section 3543.6
of
the Educational Employment Relations Act (EERA
or Act) 1 by refusing to arbitrate a grievance on her behalf and making a threatening statement.
Charging Party was informed in the attached Warning Letter dated May 13, 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 May 27,
2011, the charge would be dismissed. Charging Party requested and received an extension
of
time to file an amended charge through June 10, 2011 and timely did so on June
.8,
2011.
The facts in the charge as originally filed were fully set forth in the attached Warning Letter.
Briefly, the crux
of
the unfair practice charge is that Ms. Collins' working hours were reduced
by the Oxnard Union High School District (District) allegedly in violation
of
the collective
bargaining agreement between the Union and the District. The Union grieved the issue on Ms.
Collins' behalf, but by December 2009 letter to Ms. Collins, declined to pursue the grievance
to arbitration. 	In sum, the amended charge provides the following additional relevant
information.2
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.
2 The amended charge also includes information on layoff practices at another school
district and layoff procedures that were followed in the District in 2003. This information is
not germane to determining whether the instant charge states a prima facie case of a breach of
the Union's duty of fair representation.

LA-CO-1417-E
June21,2011
Page 2
E-mail messages from Union representative Ko Tamura to Ms. Collins in August 2009
acknowledge that the Union's position regarding the number
of
hours that should have been
guaranteed to Ms. Collins by the District in Fall 2009 are the hours that she worked for the
previous two years.
On September 18, 2009, Union President Jim Rose sent an e-mail message to employees
explaining the magnitude
of
the District's budget shortfall and stating that the Union and the
District were negotiating over furlough days to avoid layoffs.
In
November 2009, Mr. Tamura warned in a Union newsletter that:
The cuts the Adult School has endured are unarguably severe and
there is still the possibility
of
further cuts in the future. 	Hard
decisions, not necessarily popular ones, may have to be made and
[the Union] will continue to work in the best interest
of
the Adult
Ed unit.
Ms. Collins alleges that the Union and the District had reached a pre-determined conclusion
regarding her case before the grievance mediation in December 2009 because: (1) Mr. Tamura
spent the entire mediation typing on his computer and did not participate or provide input; (2)
the District's counsel was "derisive and insulting to Ms. Collins,"3 misquoted the Education
Code, and did not attempt any meaningful settlement; and (3) at the conclusion
of
the meeting
District representatives,4 Mr. Tamura, and Mr. Rose "all left the building together for lunch."
Regarding the statement made by Mr. Rose that Ms. Collins could expect repercussions from
the District should she choose to pursue the grievance on her own, and the subsequent
conversation between Ms. Collins and Assistant Principal Grisafe wherein Mr. Grisafe implied
that students had complained about Ms. Collins, the amended charge states:
Given the conduct
of
Mr. Parham [District counsel], Mr. Grisafe,
Mr. Rose, and Mr. Tamura during the mediation, coupled with
the threat by Mr. Rose and the classroom visit by Mr. Grisafe, it
is clear that the district and the union were colluding to ensure the
intimidation
of
an employee with an active and legitimate
grievance/unfair labor practice against the district.
3 The amended charge also states that the District's counsel "spent a good deal 	time
pounding the table and shouting loud enough for people in other rooms to hear him .... "
4 Including Oxnard Adult School Assistant Principal John Grisafe, who is the
administrator that later alluded to student complaints being made about Ms. Collins' teaching
techniques.

LA-CO-1417-E
June 21, 2011
Page 3
In July 2010, the Union and the District executed a side-letter agreement regarding "clarifying
the staffing process" due to reductions in adult school staffing. This letter defined "longevity"
and "seniority" and also defined priorities for assignment based on tenure and seniority. 	It is
not clear what Ms. Collins alleges is an EERA violation regarding this side-letter. The
amended charge states that the side-letter continues to misapply relevant Education Code
provisions, it was created after Ms. Collins' grievance and unfair practice charges, and the
District and the Union "are attempting
to
disregard her rights under the effective collective
bargaining agreement in place at the time
of
her grievance."
For the reasons to follow, the charge, as amended, does not correct the deficiencies outlined in
the Warning Letter and the charge must be dismissed.
Discussion
1.	
PERB' s Jurisdiction and Standing
of
the Charging Party
The amended charge continues to allege violations
of
the Education Code and sections
of
EERA that protect the bargaining rights
of
employee organizations. As stated in the Warning
Letter, these allegations must be dismissed from the charge for PERB 's lack
of
jurisdiction and
the Charging Party's lack
of
standing. (San Francisco Unified School District (2009) PERB
Decision No. 2040; Regents
of
the University a/California (2010) PERB Decision No. 2153
H.)
2. 	The Duty
of
Fair Representation
As fully discussed in the Warning Letter, in order to prevail on a theory
of
a union's breach
of
the duty
of
fair representation, a charging party must show that a union acted in an arbitrary,
discriminatory, or bad faith manner. (United Teachers
of
Los Angeles (Collins) (1982) PERB
Decision No. 258.) The facts provided in the amended charge still do not meet this standard.
The Warning Letter concluded that the Union, having explained its specific rationale to Ms.
Collins for declining to arbitrate, had not acted in an arbitrary manner. (Reed District
Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332.) The Warning
Letter further explained that because an employee organization is not bound to take a
bargaining position that could result in greater gains for a particular classification (Union
of
American Physicians & Dentists (Meenakshi, et al.) (2006) PERB Decision No. 1846-S), nor
does it violate its fair representation duty by taking a position that may unfavorably affect
some members (Orange Unified Education Association & California Teachers Association
(Rossmann) (2003) PERB Decision No. 1533), the Union's conduct in this instance could not
be found discriminatory or 	bad faith. 	Ms. Collins argues that the fact that Mr. Tamura wrote
that employees should expect further cuts in the November 2009 newsletter, coupled with Mr.
Tamma's lack of input at the mediation, and District and Union representatives leaving
together for lunch, demonstrates that the Union had "decided to side with the District." These
attenuated facts, however, cannot reasonably support an inference of bad faith in the Union's
decision not to pursue arbitration in this matter.

LA-CO-1417-E
June 21, 2011
Page 4
Furthermore, to the extent that Ms. Collins alleges that the Union's negotiating the side letter is
adverse to her interests, this allegation does not demonstrate a violation
of
EERA. In general,
unions enjoy wide latitude in contract negotiations. 	Consequently, a union is not required to
satisfy all union members, is not barred from making an agreement that has an unfavorable
effect on some union 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.) Thus, this allegation must be dismissed.
3.	
Interference
As explained in the Warning Letter, Mr. Rose's comments about possible repercussions from
the District should Ms. Collins pursue her grievance did not threaten any adverse action by the
Union and thus do not constitute interference with protected conduct. (California Faculty
Association (Hale,
et
al.) (1988) PERB Decision No. 693-H.) The Warning Letter also stated
that the Union cannot be held responsible for conduct by District agents. (Union
of
American
Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.) The amended charge
argues that the Union's and the District's behavior at the mediation in combination with Mr.
Rose's statement and Mr. Grisafe's actions demonstrate collusion between the District and the
Union and an attempt to intimidate her. The facts regarding District and Union representatives
having lunch together afier the mediation and failing to reach a grievance settlement
satisfactory to Ms. Collins do not approach evidence
of
collusion. As stated in the Warning
Letter, Mr. Rose does not exercise any control over Ms. Collins' employment relationship with
the District, thus, there is no basis to find that his comments would reasonably tend to
discourage her from pursuing her claim against the District. (California Faculty Association
(Hale, et al.), supra, PERB Decision No. 693-H.)
Conclusion
For all
of
the above reasons and for the facts and reasons supplied in the May 13, 2011
Warning Letter, this charge does not state a prima facie case and must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,5 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.
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).)
5 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1417-E
June 21, 2011
Page 5
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
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.)

LA-CO-1417-E
June 21, 2011
Page 6
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: 	JeffreyR. Boxer,Attomey
Loreena Lynn Collins

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
EDMUND
G.
BROWN JR., Governor
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone:
(8
I 8) 551-2805
Fax: (818) 551-2820
May 13, 2011
Harry F. Berman, Esquire
National Association
of
Government Employees
1819 Knoll
Drive,#
17
Ventura,
CA
93003
Re: 	Loreena Lynn Collins
v.
Oxnard Federation
of
Teachers
Unfair Practice Charge No. LA-CO-1417-E
WARNING LETTER
Dear Mr. Berman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 29, 2010. Loreena Lynn Collins (Ms. Collins or Charging
Party) alleges that the Oxnard Federation
of
Teachers (Union or Respondent) violated section
3543.6
of
the Educational Employment Relations Act (EERA or Act) 1 by refusing to arbitrate a
grievance on her behalf and making a threatening statement.2 Investigation
of
the charge
revealed the following relevant information.
Facts as Alleged by the Charging Party
Ms. Collins is employed by the Oxnard Union High School District (District) as a teacher at
Oxnard Adult School. On June 15, 2009, the staff at Oxnard Adult School, including Ms.
Collins, were notified by letter from the school's principal that due to budgetary shortfalls,
adjustments in hours and class assignments would be made for the upcoming Fall semester.
Employees were assured that any such adjustments would be made according to seniority. Ms.
Collins' Fall teaching assignment ultimately resulted in a seven-hour reduction from her
previous assignment, prompting her to contact Union representative Ko Tamura. After Mr.
Tamura consulted with Union President James Rose and the Union's attorney, he informed Ms.
Collins that the District did not appear to be following the contract, and that he would
"get
back" to her regarding resolution
of
the matter. Ms. Collins was advised by the Union to
provide the District with a written acceptance
of
her assignment with reduced hours, which the
District later claimed showed that Ms. Collins had voluntarily accepted the reduction in hours.
1 EERA is codified at Government Code section 3540 et seq. 	The text
of
the 	and
PERB Regulations may be found at wwwperb.ca.gov.
2 The charge also alleges violations of the Education Code, as well as sections
of
related to the time that school employers and employee organizations must begin negotiations
prior to adoption of a final budget, the duty to bargain with employers in good faith, and the
duty to participate in impasse procedures in good faith.

LA-CO-1417-E
May 13, 2011
Page 2
The charge states that Ms. Collins later discovered that other less-senior adult education
teachers had not had their hours reduced at all, and at least one less-senior teacher had been
guaranteed more hours than Ms. Collins. Employees senior to Ms. Collins had their hours
increased. The Union, at some point in time not specified in the charge, filed a grievance over
this issue. It appears from information included in exhibits to the charge that a mediation
between the District, the Union, and Ms. Collins was conducted as part
ofthe
grievance
process. 	Sometime subsequent to the mediation, Ms. Collins requested that the Union pursue
the matter to arbitration.
On December 18, 2009, the Union informed Ms. Collins by letter that the Union Executive
Board had voted 8-0 not to arbitrate the matter. The letter explained the rationale
of
the
Union's decision, stating in part:
The Board felt that they had argued strongly with the District on
behalf
of
each
of
the units to do whatever they could to avoid
layoffs and keep everyone employed. If, in arbitration, we
prevailed with the seniority argument, it would mean that the
District would have to staff Adult Ed according to strict seniority.
In this case, hours would be distributed from the most senior
employee down which will create a potential,
if
not actual, layoff
situation once those hours are exhausted and the more junior
employees[,] guarantees could not be met. This, they felt, was
contradictory to the spirit
of
what the [Union's] position is across
all other units. Moreover, by attempting to make you whole,
which was far from guaranteed by this approach,
we'd
likely be
harming other unit members, including, perhaps, even you by
forcing the District to layoff or reduce these hours below the
guarantee.
[W]hile the Board agreed that by only looking at the seniority
list, it appears that you were unfairly treated, the Board accepted
the argument that the Ed Code only guarantees a finite number
of
hours. · In good economic times individuals receive a higher
guarantee. During downturns, they don't. ...Moreover, there is an
open legal issue about whether an adult instructor's "guarantee"
is locked in when he or she becomes permanent after two years,
and the impact
of
that guarantee. The high level
of
uncertainty
over this issue made this matter a bad candidate for arbitration.
The letter went on to summarize the Union's attorney's analysis
of
the strengths and
weaknesses
of
the case, noting that applicable court decisions have not accepted that contract
language takes precedence over Education Code provisions in these types of disputes. 	The
letter also stated that if the Union was to file an unfair practice charge with PERB on a
unilateral change theory, it would encounter the same difficulties in prevailing in its arguments
that it faced in the grievance. The letter concluded by assuring Ms. Collins that the Union

LA-CO-1417-E
May 13, 2011
Page 3
would contact the District and try to obtain the additional two hours that the District
had
offered in mediation, and also that it would request to negotiate with the District over
new
contract language to "give more clear directions for how an administrator is going to allocate
hours."
The charge states that Union President Rose advised Ms. Collins that should she choose to
pursue the matter on her own with the assistance
of
a private attorney, she could expect
"repercussions" from the District. Ms. Collins interpreted this statement as a threat. Shortly
after Mr. Rose's statement, the assistant principal
of
Oxnard Adult School approached Ms.
Collins in her classroom and implied that he had received student complaints about her
teaching techniques. Ms. Collins reports that in her previous eight years
of
employment with
the District she had never received a student complaint. The charge also notes that Mr. Rose
is
a temporary employee
of
the Adult School and works directly with management.
For the reasons explained below, the charge fails to demonstrate a prima facie violation
of
EERA.
Discussion
1.	
PERB 's Jurisdiction and Standing
of
the Charging Party
PERB is a quasi-judicial administrative agency charged with administering collective
bargaining statutes covering public employers, public employees, and employee organizations
representing public employees. EERA is one
of
the collective bargaining statutes under
PERB' s exclusive jurisdiction. PERB' s jurisdiction does not extend, however, to other
independent statutory schemes, such as the Education Code. (San Francisco Unified School
District (2009) PERB Decision No. 2040; Service Employees International Union, Local 535
(Mickle) (1996) PERB Decision No. 1168.) Accordingly, PERB lacks jurisdiction over
allegations
of
violations
of
the Education Code and these allegations must be dismissed from
the charge.
The charge also alleges violations
of
EERA sections related to the rights and responsibilities
of
employee organizations in discharging their duty to bargain in good faith. Individual
employees lack standing to allege that an exclusive representative violated its duty to meet and
confer with an employer. (Union
of
American Physicians & Dentists (Meenakshi, et al.)
(2006) PERB Decision No. 1846-S; Oxnard School District (Gorcey and Tripp) (1988) PERB
Decision No. 667.) Individual employees also lack standing to allege violations
of
statutory
sections that protect the collective bargaining rights
of
employee organizations. (Regents
of
the University
of
California (2010) PERB Decision 	2153 	State
of
California
(Department
of
Corrections) (1993) PERB Decision No. 972-S.) Accordingly, these
allegations must be dismissed from the charge.

LA-CO-1417-E
May 13, 2011
Page 4
2.	
The Duty
of
Fair Representation
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 ofEERA, 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.)
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, p.
9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
The duty
of
fair representation does not contemplate the complete satisfaction of all
represented. 	(California School Employees Association & its Chapter 3 74 (Wyman) (2007)
PERB Decision No. 1903.) A union is afforded discretion concerning how far to pursue a
grievance, and a determination of the strength 	merits will generally not be judged as
basis for a breach of the duty of fair representation, unless discriminatory or bad faith
motivation is shown. (California School Employees Association & its Chapter 410 (Payne)
(2009) PERB Decision No. 2029; American Federation
of
Teachers College Guild, Local 1521
(Saxton) (1995) PERB Decision No. 1109 [union negotiated a new classification for employee
rather than pursue a grievance that was likely to fail.) However, if an employee presents a
potentially meritorious grievance, the union must make an honest assessment before

LA-CO-1417-E
May 13, 2011
Page 5
abandoning it. (Airline Pilots Assn.
v.
O'Neill (1991) 499 U.S. 65, 74-75.) If the union does
not explain its rationale, it may leave no choice but to deem the conduct arbitrary. (General
Truck Drivers (1975) 217 NLRB 616, 618; see also Oakland Education Association, CTAINEA
(Mingo) (1984) PERB Decision No. 447.)
In this case, Ms. Collins was provided with a detailed lette·r explaining the reasons that the
Union relied upon in declining to pursue the matter to arbitration. Because the Union supplied
a specific rationale it cannot be found that the Union failed to make an honest assessment
of
the relative strength
of
the case before deciding not to arbitrate, or that it processed the
grievance in an arbitrary or perfunctory manner. Charging Party argues that the Union here
has "sided with the district in mis-applying [sic] sections
of
the Ed-code and statute to suit
their own agenda, over the rights
of
senior employees." The fact that Ms. Collins disagrees
with the Union's interpretation
of
relevant Education Code provisions, and also disagrees with
the Union's preference to forego the matter to avoid a perceived potential for layoffs
in
the
bargaining unit, does not demonstrate that the Union acted in a discriminatory or bad faith
manner. A union is not obligated to adopt a bargaining position that could result in greater
gains for a particular classification (Union
of
American Physicians & Dentists (Meenakshi,
et al.), supra, PERB Decision No. 1846-S), nor does it violate its duty
of
fair representation by
taking a position that may have an unfavorable effect on some members. (Orange Unified
Education Association & California Teachers Association (Rossmann) (2003) PERB Decision
No. 1533; Riverside County Office Teachers Association, CTAINEA (McAlpine, et al.) (2000)
PERB Decision No. 1401.) Thus, the Union's decision not to pursue arbitration because it
believed that decision to be best for the unit as a whole, even though such decision was not
beneficial to Ms. Collins' individual interests, does not demonstrate a breach
of
the duty
of
fair
representation.
3 	Interference	.
Ms. Collins interpreted Mr. Rose's statements regarding potential "repercussions" by the
District should she choose to pursue the grievance with a private attorney as a threat. 	This
allegation is best described as the Union's statements interfering with Ms. Collins' protected
rights under EERA. In determining whether a prima facie violation of EERA section 3543.6(b)
has been stated, PERB will analyze the case according to the principles applicable for violations
of 3543.5(a), the parallel provision prohibiting employer interference and reprisals. (California
Faculty Association (Hale, et al.) (1988) PERB Decision No. 693-H, citing Service Employees
International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) The test for
whether statements constitute interference or coercion depends upon whether, under the existing
circumstances, they reasonably tend to interfere or.coerce in the exercise
of
guaranteed rights,
not whether the employee subjectively perceives the statements in that manner. (Clovis Unified
School District (1984) PERB Decision No. 389; see also Los Rios College Federation
of
Teachers, CFT/AFT Local 2279 (Deglow) (1996) PERB Decision No. 1137 [the standard for
analyzing interference is objective, rather than subjective].) Speech of union representatives is
granted generous protection, so long as it is related to matters of legitimate concern (Los Rios
College Federation
of
Teachers (Lowman) (1996) PERB Decision No. 1142), and is similar to
the free-speech rights afforded employers. (Ibid.; California Faculty Association (Hale, et al.),

LA-CO-1417-E
May 13, 2011
Page 6
supra, PERB Decision No. 693-H.) The expression
of
views or opinion does not evidence an
unfair practice unless there
is
a threat
of
reprisal or promise
of
benefit. (Rio Hondo Community
College District (1980) PERB Decision No. 128.)
Given the authorities discussed above, there
is
ho basis to find Mr. Rose's comment coercive
under these circumstances. As a threshold matter, a union is not responsible for the actions
of
the employer. (Union
of
American Physicians & Dentists (Menaster) (2007) PERB Decision
No. 1918-S.) The charge implies that because Mr. Rose is employed at the Oxnard Adult
School, working directly with the administrator who informed Ms. Collins about alleged
student complaints, and the administrator's actions took place close in time to Mr. Rose's
comments, the Union
is
somehow responsible for the District's actions. The mere fact that Mr.
Rose is employed at the school is insufficient to support such an inference, however.
Furthermore, since Mr. Rose did not make any suggestion that the Union would take any
action against Ms. Collins for continuing her claim, and he has no direct authority over her
employment relationship with the District, there
is
no basis to find that his comment would
reasonably tend to discourage her from engaging in protected conduct by pursuing her claim.
(California Faculty Association (Hale, et al.), supra, PERB Decision No. 693-H [union
representative's negative comments and opinions directed to unit members did not constitute
interference because union representative did not threaten adverse action and had no control
over the employment relationship].)
For these reasons the charge, as presently written, does not state a prima facie case. 3
If
there
are any factual inaccuracies in this letter or additional facts that would correct the 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 comer
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB.	
If
an amended charge or withdrawal is not filed on or before May 27, 2011,4 PERB
will dismiss your charge.
If
you have any questions, please call me at the above telephone
number.
3 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." (lb id.)
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

LA-CO-1417-E
May 13, 2011
Page 7
Sincerely,
Valerie Pike Racho
Regional Attorney
VR
cc: 	Loreena Lynn Collins