Los Angeles Unified School District and United Teachers Los Angeles (Wadsworth) (PERB 0599E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KATHY McGINNIS 	WADSWORTH,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-2375
PERB Decision No. 	599
December 23, 	1986
KATHY McGINNIS 	WADSWORTH,
Charging 	Party,
v.
UNITED 	TEACHERS 	OF 	LOS 	ANGELES,
Respondent.
Case No. 	LA-CO-362
Appearance: 	Kathy McGinnis Wadsworth, 	on her own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal 	by Charging 	Party of 	the 	Board 	agent's
dismissals, 	attached hereto, 	of her charges 	alleging 	that 	the
Los 	Angeles 	Unified 	School 	District 	and 	the 	United 	Teachers 	of
Los Angeles, 	respectively, 	violated sections 3543.5(a), 	(c) and
(e) and sections 	3543.6(b), 	(c) and 	(d) 	of the Educational
Employment 	Relations Act 	(Gov. 	Code sec. 	3540 et seq.) 	by
discriminating 	against her 	and by 	failing 	to 	file 	grievances 	on
her behalf.
)
)
)
)
)
)
)
)
)
)
______________
)
)
)
)
)
)
)
)
)
)
)
______________
)

We have 	reviewed 	the 	dismissals 	and, 	finding 	them 	free 	from
prejudicial 	error, 	adopt 	them as 	the 	Decisions 	of 	the 	Board
itself.
ORDER
The 	unfair practice 	charges 	in 	Case 	Nos. 	LA-CE-2375 	and
LA-CO-362 	are 	DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD.
22

STATE OF CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 557-1350
July 30, 	1986
Kathy McGinnis Wadsworth
Richard Fisher
O'Melveny & Myers
400 South Hope Street
Los Angeles, CA 90071
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Kathy McGinnis Wadsworth v. Los Angeles Unified School District
Charge No. LA-CE-2375
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Act
(EERA).1 The reasoning which underlies this decision follows.
On April 21, 1986 Kathy McGinnis Wadsworth filed an unfair practice charge
against the Los Angeles Unified School District (District) alleging violation
of EERA sections 3543.5(a), (c) and (e). 	Charging party has alleged in
general terms that the District discriminated against her commencing on or
about November 1981 when she became a representative of the National
Organization for Women (NOW). 	She attributes a number of incidents occurring
in the years between November 1981 and January 1986, when she was terminated
from employment with the District, to the role she played as representative
for teachers on a pay equity committee formed by NOW.
On June 27, 1986 charging party and the regional attorney spoke by telephone
for a period of 2-1/2 hours concerning the details of her job history with the
District. 	Subsequent conversations occurred on July 3, 8, 25 and 28, 1986.
On July 21, 1986 the regional attorney wrote to Ms. Wadsworth warning her that
because the charge was deficient as written, it would be dismissed on July 30,
1986 unless previously withdrawn or amended. 	The warning letter is attached
and incorporated by reference.
On July 28, 1986 the regional attorney spoke again with Ms. Wadsworth by
1References to the EERA are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

telephone. 	She restated her various theories of violation: she engaged in
protected activity in fall 1981 when she was a member of the pay equity
committee of NOW, and the adverse conduct of the employer in the ensuing five
years took place because of such participation; allegations describing her
period without work, from September 1 to October 20, 1985, and her later
complaint to EEOC present elements of a discrimination charge; and, the school
administrator's conduct toward her on December 15, 1985, when she was accused
of having alcohol on her breath and screaming at students at the Brentwood
Magnet School, took place because she was a member of NOW in 1981 and/or
because she complained to EEOC on fall 1985. 	Ms. Wadsworth indicated that she
has no intention of withdrawing or amending the charge, and that presently she
contemplates filing an appeal in this matter.
Kathy McGinnis Wadsworth
Richard Fisher
July 30, 1986
Page 2
Charging party complains of adverse actions which took place subsequent to
disclosing her membership in NOW's pay equity committee and filing an EEOC
complaint against the District: first, management personnel at Brentwood
Magnet School, on December 15, 1985, disciplined her for allegedly having
alcohol on her breath and screaming at students; and, second, the District
dismissed her from employment as a substitute on January 28, 1986, based on
three unsatisfactory evaluations she received at school to which she was
assigned as a substitute.
These allegations are insufficient to state a prima facie violation of EERA.
section 3543.5(a). 	Charging party has not alleged facts which could establish
a connection or "nexus" between her protected activity and the District's
subsequent adverse action. 	The temporal proximity between the protected
conduct and the adverse action is insufficient to raise an inference of
unlawful motivation on the part of District personnel. 	Moreland Elementary
School District (1982) PERB Decision No. 227; Charter Oak Unified School
District (1984) PERB Decision No. 404.
For the reasons stated above, as well as in the warning letter of July 21,
1985 described above, the allegations are dismissed. 	No complaint will issue.
Pursuant to Public Employment Relations Board regulation section 32535
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty (20) calendar days after service of this Notice
(section 32635(a)). 	To be timely filed, the original and five (5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on August 19, 1986, or sent by telegraph or certified or
Express United States mail postmarked not later than August 19, 1986
(section 32135). 	The Board's address is:

Kathy McGinnis Wadsworth .
Richard Fisher
July 30, 1986
Page 3
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
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 (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 32635(b)).
Service
All documents authorized to be filed herein must also be "served" upon all
parties to the proceeding, and a "proof of service" must accompany each copy
of a document served upon a party or filed with the Board itself (see
section 32140 for the required contents and a sample form). 	The document will
be considered properly "served" when personally delivered or deposited in the
first-class mail postage paid and properly addressed.
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 (section 32132).
Final Date
If no appeal is filed within the specific time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
JEFFREY SLOAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: General Counsel
Pm IIABERFEll3

STATE OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 557-1350
July 21, 1986
Kathy McGinnis Wadsworth
Re: 	Kathy McGinnis Wadsworth v. Los Angeles Unified School District
Charge No. LA-CE-2375
Dear Ms. Wadsworth:
On April 21, 1986 Kathy McGinnis Wadsworth filed an unfair practice charge
against the Los Angeles Unified School District 	(District) 	alleging violation
of EERA sections 3543.5 (a), 	(c) and (e). 	Charging party has alleged in
general terras that the District discriminated against her commencing on or
about November 1981 when she became a representative of the National
Organization for Women (NOW). 	She attributes a number of incidents occurring
in the years between November 1981 and January 1986, when she was terminated
from employment with the District, 	to the role she played as representative
for 	teachers on a pay equity committee formed by NOW.
Facts
Investigation of this charge revealed details about several incidents she
believes would not have occurred but for her announced participation on the
pay equity 	committee. 	In November 1981 charging party was employed with the
District at the 52nd Street School. 	She informed her principal, Dr. Charlene
Kelley, 	that she was a member of the pay equity committee. 	The District
superintendent also learned of her role with NOW. 	The principal responded
that she did not like the committee. Charging party concluded that subsequent
evaluations by the principal therefore would be unfavorable. 	She resigned
employment as a 	full-time 	teacher in January 1982, and commenced to work as a
substitute for the District. when' she applied in fall 1982 to work full-time
for the District, she learned that Dr. Kelley had, 	in fact, given her a
negative evaluation.
In fall 1982, when she applied to become a full-time teacher with the
District, 	she also concluded that the District had eliminated favorable
evaluations from her employment record and retained the negative ones. While
describing this "adverse conduct," charging party does not present information
which could establish a connection between her activity on the pay equity
committee in November 1981 and the alleged suppression of favorable
evaluations in fall 	1982. 	Charging party concedes that she only attended
three of the pay equity committee's monthly meetings in 3.951. 	There is no
allegation to suggest that management representatives responsible for the
alleged manipulation of her evaluations knew of her activity on the NOW
committee.

In mid-fall 1982 charging party was denied a day's pay because the secretary
of the substitute office made a mistake. 	The secretary's notation suggested
wrongly that charging party was employed for a particular day. 	That notation
resulted in her being passed over when the assignments were allocated. 	The
union assisted her in clearing the matter up, and she was paid for the lost
day in 1983.
Between fall 1983 and spring 1984 charging party received three unsatisfactory
evaluations for arriving late at the school to which she was assigned as a
substitute. 	She received negative evaluations from the Loma Vista School and
the Solano School. 	The threatened evaluation at South Central was never
filed. 	Charging party has not alleged or provided information which could
establish a connection between the adverse conduct and the knowledge by
management officials that charging party served on the pay equity committee of
NOW. 	She concedes that on all three occasions she was, in fact, tardy.
However, she attributes her lateness to the District because, contrary to her
request, 	the District continued to send her to outlying regions distant from
her home, thereby complicating her travel to work.
In summer 1984 charging party alleges that she was denied work as a
substitute. 	Charging party alleges that the cause for such a denial was
unknown to her until fall 1985. 	At that time she was out of work for a month,
complained to the affirmative action committee at the District and learned
that her application had erroneously been placed at "the bottom of the list."
She attributes the denial of work as a substitute during sunnier 1984 to the
misplacement of her file. 	The committee was able to straighten out fee matter
and she subsequently received work as a substitute. 	Although charging party
believed that she was erroneously denied opportunity to work and was thereby
deprived of one month's salary, she made no effort to grieve or in any way be
made 	"whole."1 The committee did not explain how the problem was resolved
or provide information which would enable her to speculate about the
connection, if any, between her file being placed at the bottom of tie
"substitute stack" and her role in NOW. 	No facts have been alleged or
information provided which could establish that the adverse conduct described
herein was connected to charging party's exercise of protected rights.
In summer 1985 charging party was assigned to the Brentwood Magnet School on a
2-day assignment. 	On the second day she was asked to leave the school because
management officials claimed that she had alcohol on her breath, and accused
her of screaming at the students. 	She was given an "unsatisfactory" note
which later provided grounds, along with two other unsatisfactory evaluations
described above, for termination from employment as a substitute with the
1The collective bargaining agreement, particularly Article I
(Recognition) 	section 1.1 excludes from the unit all day-to-day substitutes
who have not been paid for at least one hundred days' work with the District
during the preceding year. 	Charging party had no right under the contract to
grieve the alleged District misconduct.
2
2

District. 	Charging party does not allege facts or provide information which
could establish that the accusation that she was screaming at students and had
alcohol on her breath was a pretext for discriminating against her because she
was a member of the pay equity committee of NOW, or exercised any other
protected rights.
On January 28, 1986 charging party was dismissed from employment. 	The grounds
listed in the termination consisted of arriving late at her assignments.
Charging party has not provided information or alleged facts which could
establish that the termination occurred because she exercised protected rights.
Applicable Legal Principles
In San Dieguito Union High School District (1982) PERB Decision No. 194, PERB
held that, 	to state a prima facie violation, charging party must allege and
ultimately establish that the alleged unfair practice either occurred or was
discovered within the six-month period immediately preceding the filing of 	the
charge with PERB. 	EERA section 3541.5.
PEE© has held that a prima facie statement of unlawful discrimination and
retaliation requires allegations that: 	(1) 	the employer took adverse action
against a certain employee; 	(2) 	the enployee engaged in activity protected by
EERA; and, 	(3) 	the employer would not have taken the adverse action against
the particular employee "but for" his/her having engaged in the protected
activity. 	Novato Unified School District (1982) PERB Decision No. 210;
Regents of the University of California (1983) PERB Decision No. 308-E;
Regents of the University of California (1983) PERB Decision No. 319-H.
The nexus between the employer conduct and the protected activity is
established by alleging unlawful motivation on the part of the employer. 	In
Placerville Union School District (1984) PERB Decision No. 377, PERB stated
that where direct evidence of unlawful motivation is lacking, it has generally
looked to such factors as timing 	(North Sacramento School District (3S32) 	PERS
Decision No. 254; Coast Community College District (1982) PERB Decision
No. 251), disparate treatment (San Joaquin Delta Community College District
(1982) 	PERB Decision No. 261; San Leandro Unified School District (1983) PERB
Decision No. 288), departure from past procedures (Novato Unified School
District (1982) PERB Decision No. 210), and inconsistent justifications (State
of California 	(Department of Parks and Recreation) 	(1983) 	PERB Decision
No. 328-S) which, under certain circumstances, may support an inference of
unlawful motivation. 	Also see University cf California (1933) PETS Decision 	-
No. 308-H.
In determining whether a party has violated section 3543.5(c) of EERA, the
PERB utilizes either the "per se" or the "totality of conduct" test, depending
on the specific conduct involved and the effect of such conduct on the
negotiating process, 	The "totality of conduct" test is applied to determine
whether "surface bargaining'1 has occurred. 	The test looks to the entire
course of negotiations to determine whether the charged party has failed to
negotiate with the "requisite subjective intention of reaching agreement."
Pajaro Valley Unified School District (1978) 	PERB Decision Mo, 51.
33

Charging party has also alleged a violation of EERA section 3543.5(d). 	That
subdivision makes it unlawful for an employer to dominate or control the
administration of an enployee organization, for it would render the enployee
representative unable to make wholehearted efforts on behalf of the employees
it represents. 	Santa Monica Unified School District (1978) PERB Decision
No. 52; Antelope Valley Community College District (1979) PERB Decision
No. 97. 	See Clovis Unified School District (1984) PERB Decision No. 389.
"Interference," although a lesser degree of intrusion than "domination," is
considered equally unlawful. 	This terms includes intruding into the internal
functioning of the organization, setting up a rival organization, or engaging
in a campaign to induce employees to support a particular union. 	See Antelope
Valley Community College District, supra; Jack Smith Beverage Co., Inc. (1951)
94 NLRB 14012 [28 LRRM 1199]. 	Lending financial support or encouraging
membership in a particular union has also been found by PERB to constitute
unlawful "assistance" in violation of section 3543.5(d). 	Azusa Unified School
District (1977) EERB Decision No. 38; Department of Corrections (1980) PERB
Decision No. 127-S; Sacramento City Unified School District (1982) PERB
Decision No. 214.
Conclusion
The charge, as presently written, fails to state a prima facie violation of
EERA section 3543.5. 	First, with respect to all conduct alleged in the charge
and described during the investigation as having occurred prior to
November 21, 1985, the allegations are time-barred. 	Second, the charge fails
to allege any connection between the adverse conduct and the activity charging
party described with regard to her role as a member of the pay equity
committee of 	NOW. 	There is no information suggesting that anyone of the
District management staff besides Dr. Kelley and the school superintendent
knew of charging party's role on that committee. There are no facts to
support charging party's speculation that their knowledge of her role on that
committee was the genesis of her future problems in the District. 	Thus,
charging party has not set forth facts to support a prima facie violation of
EERA section 3543.5(a). 	Third, there are no facts to suggest that the
District failed to bargain in good faith or participate in good faith in the
statutory impasse procedures, and therefore no prima facie violation of
sections 3543.5(c) or (e) have been stated.
If you feel that there are facts which would correct the deficiencies
explained above, please amend the charge accordingly: 	(1) The amended charge
should be prepared on a standard PERB unfair practice charge form clearly
labeled First Amended Charge, 	(2) contain all the facts and allegations you 	-
wish to make, 	(3) 	indicate the case number where indicated on the form (even"
though you are not to write in the box when originally filing a charge),
(4) 	and be signed under penalty of perjury by the charging party 	(forms
enclosed). 	The amended charge must be. served on the respondent, and proof of
service must be attached to the original as well as to all copies of the
amended charge (forms enclosed).
4

If I do not receive an amended charge or withdrawal from you on or before
July 30, 1986, I shall dismiss your charge. 	If you have any questions on how
to proceed, please call me at (415) 557-1350.
Sincerely yours.
Peter Haberfeld
Regional Attorney
Enclosures

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 557-1350
July 30, 1986
Kathy McGinnis Wadsworth
644 Landfair Ave., #207
Los Angeles, CA 90024
Wayne Johnson, President
United Teachers-Los Angeles
2511 West Third
Los Angeles, CA 90057
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Kathy McGinnis Wadsworth v. United Teachers of Los Angeles
Charge No. LA-CO-362
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Act
(EERA).1 The reasoning which underlies this decision follows.
On April 21, 1986 Kathy McGinnis Wadsworth filed an unfair practice charge
against the United Teachers of Los Angeles (UTLA) alleging violation of EERA
sections 3543.6(b), (c) and (d). 	Specifically, charging party alleges that
ULTA denied her the right of fair representation when, on several occasions
during the previous few years, it failed to file grievances on her behalf
against the Los Angeles Unified School District (District).
On June 27, 1986 charging party and the regional attorney spoke by telephone
for a period of 2-1/2 hours concerning the details of her job history with the
District. 	Subsequent conversations occurred on July 3, 8, 25 and 28, 1986.
On July 21, 1986 the regional attorney wrote a warning letter to Ms. Wadsworth
indicating that her charge, as stated, was deficient and that it would be
dismissed unless withdrawn or amended by July 30, 1986. 	On July 25, 1986 the
regional attorney spoke by telephone with Ms. Wadsworth concerning this
charge. 	She stated at that time that she would neither withdraw or amend the
charge, and that she agreed, "there is no case against the Union."
For the reasons stated in the warning letter of July 21, 1986, attached and
1References to the EERA, are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

incorporated by reference, the allegations of this charge are dismissed. 	No
complaint will issue thereon.
Kathy McGinnis Wadsworth
Wayne Johnson
July 30, 1986
Page 2
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty (20) calendar days after service of this Notice
(section 32635(a)). 	1b be timely filed, the original and five (5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on August 19, 1986, or sent by telegraph or certified or
Express United States mail postmarked not later than August 19, 1986
(section 32135). 	The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
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 (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 32635(b)).
Service
All documents authorized to be filed herein must also be "served" upon all
parties to the proceeding, and a "proof of service" must accompany each copy
of a document served upon a party or filed with the Board itself (see
section 32140 for the required contents and a sample form). 	The document will
be considered properly "served" when personally delivered or deposited in the
first-class mail postage paid and properly addressed.
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 (section 32132).

Kathy McGinnis Wadsworth
Wayne Johnson
July 30, 1986
Page 3
Final Date
If no appeal is filed within the specific time limits, the dismissal will
became final when the time limits have expired.
Very truly yours,
JEFFREY SLOAN
General Counsel
By PEl'ER	ETER HABERFELD
Regional Attorney
P
cc: General Counsel
liABERrttb

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 	557-1350
July 21, 1986
Kathy McGinnis Wadsworth
644 Landfair Ave., #207
Los Angeles, CA 90024
Re: 	Kathy McGinnis Wadsworth v. United Teachers-Los Angeles
Charge No. LA-CO-362
Dear Ms. Wadsworth:
On April 21, 	1986 Kathy McGinnis Wadsworth filed an unfair practice charge
against the United Teachers of Los Angeles (UTLA) alleging violation of EERA
sections 3543.6 (b), (c) and (d). 	Specifically, charging party alleges that
ULTA denied her the right of fair representation when, on several occasions
during the previous few years, it failed to file grievances on her behalf
against the Los Angeles Unified School District (District). 	A more elaborate
description follows.
Charging party alleges that her problems with the District commenced in
November 1981 when she became a representative of teachers on a pay equity
committee formed by the National Organization for Women (NOW). 	She alleges
that after she joined the committee, 	the District lost or misplaced favorable
teaching evaluations she had obtained in other districts, and that she
received negative evaluations and was consequently denied a contract since
1982, denied summer work since 1984, and dismissed as a substitute teacher in
1986.
Charging party alleges that since August 1982 she has been unable to enlist
ULTA's support in locating her lost records and filing grievances against the
employer. 	She alleges in general terms that ULTA on numerous occasions has
failed to provide her with "accurate or adequate advise (sic) 	or
representation."
On June 27, 1986 charging party and the regional attorney spoke by telephone
for a period of 2-1/2 hours concerning the details of her job history with the
District. Subsequent conversations occurred on July 3 and 8, 1935. Charging
party has presented the following account of her relationship with the
District and the UTLA.
Charging party taught in other districts within the State of California prior
to becoming employed with the Los Angeles Unified School District, 	In
spring 1979 she applied for a job with the District, 	intending to acquire a
position by September 1979. 	In late summer 1979 she was told that the
District had lost her papers. 	She was under the impression that she would
have to go to Sacramento to straighten out the confusion, but she knew her
family would not allow it and therefore she neither 	told them nor vent to
Sacramento. 	By mid-November 1979 she obtained employment with the District.
She worked at the Bud Long Elementary School between January 1930 and June
1980, and then worked at the Mara Monte School between fall 1930 and fall 1981.
.

In fall 1981 charging party began to work at the 52nd Street School. 	Charging
party told her principal, Dr. Charlene Kelley, that she was working on the pay
equity committee of NOW which was interested in the pay differentials between
men and women teachers within the District. 	Dr. Kelley stated she did not
like the committee. 	Charging party concluded that the principal would
henceforth evaluate her negatively because of her connection to the NOW
committee and her interests in the Equal Rights Amendment (ERA). 	In
anticipation of the negative evaluations, charging party approached UTLA and
asked what could be done. 	The union advised her to attempt to resolve
whatever difficulties existed with the principal.
On January 29, 1982 charging party resigned her full-time teaching position
with the District and commenced thereafter to work with the District as a
substitute teacher. 	She explains that the reasons for her resignation were
that: she had been threatened by Dr. Kelley with negative evaluations,
Dr. Kelley thereafter refused to talk with her, she was having a difficult
time getting access to materials necessary for teaching the class to which she
was assigned, and her paperwork at the District office was not in order.
In fall 1982 charging party was surprised that, contrary to the union's
advice, she was unable to obtain a contract for full-time teaching with the
District. 	Contrary to what the union implied, her resignation had not avoided
an evaluation by principal Kelley. 	She believes that her failure to secure
full-time employment with the District owed to the District's loss or
intentional manipulation of her paperwork: 	the file contained a bad
evaluation, and did not contain the favorable evaluations charging party
claims to have acquired during prior employment. 	For example, she had been
evaluated favorably by Mrs. Herd, the vice-principal at the Bud Long School
during the 1979-80 school year. 	She learned, however, that the favorable Herd
evaluation had been replaced by a negative one prepared by the principal of
the Bud Long School. 	Charging party alleges that the negative effect of this
evaluation was exacerbated by the presence of three copies in her District
file.
Charging party attempted to file a grievance with the union. 	However, the
union responded that the loss of papers was not a grievable matter. 	She was
also told that she was ineligible to file a grievance under the contract.
Although she did not agree with the union's assessment that the matter was not
grievable and that she could not be grievant, she decided that fighting the
issue was too much trouble and that it would be better to ignore it in the
hope that "it would all go away."
Between fall 1982 and June 1983 charging party continued to work at District
schools as a substitute teacher. 	During that period another incident arose.
She was assigned to substitute at a particular school, and the secretary
failed to release her. 	The effect was that her name did not appear on the 	.
substitute eligibility list for the following day, and as a consequence she
lost a day's pay. 	In that instance the union cleared up the matter on her
behalf.
22

Between fall 1983 and spring 1984 three incidents arose. 	First, in
spring 1983, while-working at the 64th Street School, charging party was
threatened with an unsatisfactory evaluation because she arrived late at the
school. 	Next, in July 1983 she received a bad evaluation for arriving late at
the Loma Vista School. 	Then, 	in December 1983, while working at the Solano
Street School, charging party was late and received a bad evaluation.
Charging party claims that it was the District's fault that she arrived late
at these three schools. 	She had asked that her assignments be closer to home
so that freeway traffic could be avoided.
UTLA, sent a representative to be present during the meeting at which the
principal of the Solano Street School discussed her negative evaluation.
Charging party requested that the union grieve the incident, particularly the
fact that the principal had called her at home, and the way in which he
treated her during the meeting. 	UTLA responded that it was unable to grieve
on her behalf because the contract between the District and UTLA did not cover
persons teaching in her category, namely, substitutes who had not worked 100
days the preceding year.
Charging party contends that she was of a different viewpoint and believed
instead that the contract did give her the right to use the grievance
procedure, and contained a clause which was violated by the principal's
conduct. 	However, she explains that her family talked her out of making an
issue of this, and in order to avoid the problems she continued working
without challenging the District or UTLA's conduct.
Charging party "alleges that she was denied work as a substitute during the
summer of 1984. 	She did not discover until fall 1985 that the denial of work
owed probably to the fact that her substitute papers had been "placed at the
bottom of the list." 	Her discovery of this fact occurred when she was not
assigned work during an entire month. 	She complained to the affirmative
action committee within the District, and they straightened the matter out,
returning her once again to priority substitute status.
Beginning in fall 1985 her employment as a substitute with the District ran
"smoothly." 	However, in December 1985 an incident occurred at the Brentwood
Magnet School. 	She was given a 2-day assignment at that school, but was told
on the second day that she was dismissed because the vice principal detected
alcohol on her breath, and that she was "screaming" in the classroom. 	She
called the union to ask for advice and was told that, 	if she would forego one
day's pay, 	the matter would not be reflected on her record. 	She was advised
to attach a piece of paper to the "pay slip" and state that she would not
receive pay for services not rendered.
Contrary to her expectations after speaking with the union, she was given an
unsatisfactory notice which was placed in her personnel-file. 	Charging party
contends that the union had assured her this would not happen, and that she
now regrets not going to Kaiser for a breath test that would have enabled her
to disprove the vice principal's assertion.
133

Charging party complains that the union failed to represent her fairly when it
did not obtain money on her behalf to compensate her for the lost month's work
caused by the District placing her papers at the bottom of the substitute
list. 	Additionally, the union gave her bad advice in connection with the
incident at the Brentwood Magnet School. 	Charging party states that no
information is apparent to her which could suggest that what she deems
inadequate advice owes to union officials being "out to get her." 	She
characterizes the advice as incompetent, and at most negligent.
Charging party describes a one-hour consultation with UTLA's representative on
January 27, 1986. 	She was told at that time that the union was unable to
represent her because the contract did not allow substitutes in her category
to be represented in the District. 	It was explained that UTLA could counsel
substitutes regarding their problems, but that the organization had no power
under the contract to file a grievance.
On January 20, 1986 she was terminated as a substitute with the District,
based on the negative evaluations she received for allegedly being tardy and
having alcohol on her breath.1 When she went to the union on January 29,
1986, she was told by the representative that the organization had no power to
assist her in challenging the termination. 	Charging party concedes that she
at no time during this period had worked 100 days during the preceding
academic year and that, as a consequence, according to UTLA, she was hot
eligible under 	the contract to file grievances.2
Charging party has alleged that the exclusive representative denied her the
right to fair representation guaranteed by section 3544.9, and thereby
violated section 3543.6(b). 	The fair representation-duty imposed on the
exclusive representative extends to contract negotiations (Redlands Teachers
Association (Faeth). (1978) PERB Decision No. 72; SEIU, Local 99 (Kimmett)
(1979) PERB Decision No. 106; Rocklin Teachers Professional Association
(Romero) 	(1980) PERB Decision No. 124; El Centro Elementary Teachers
Association (Willis) 	(1982) PERB Decision No. 232), contract administration
(Castro Valley Teachers Association (McElwain) 	(1980) PERB Decision No. 149;
SEIU, Local 99 (Pottorff) 	(1982) PERB Decision No. 203), and to grievance
handling (Fremont Teachers Association (King) 	(1980) PERB Decision No. 125;
United Teachers of Los Angeles (Collins) 	(1983) PERB Decision No. 258). 	PERB
has ruled that a prima facie statement of such a violation requires
allegations that: 	(1) 	the acts complained of were undertaken by the
organization in its capacity as the exclusive representative of all unit
1The 	unsatisfactory conduct was stated to have occurred while she
substituted at Loma Vista, Solano and Brentwood Magnet Schools.-
2Article I 	(Recognition) 	section 1.1 states that all day-to-day
substitutes who were paid for fewer than one-hundred days during the preceding
school year are excluded from the unit. 	The contractual grievance procedure
does not apply.
4

employees; and, 	(2) 	the representational conduct was arbitrary,
discriminatory, or in bad faith.
This charge focuses on the Union's conduct in processing or failing to process
a grievance. 	PERB has enunciated the standard to apply to the Union's conduct
in this context. 	In United Teachers of Los Angeles (Collins) 	(1982) PEES
Decision No. 258, the 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. 	(Slip Op. at p. 5.)
PERB continued by stating:
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. 	(Ibid.)
A prima facie case alleging arbitrary conduct violative of the duty of fair
representation,
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, citing Rocklin Teachers Professional
Association (Romero) 	(1980) PERB Decision No. 124.
In San Francisco Classroom Teachers Association 	(Bramell) 	(1984) 	PERB Decision
No. 430, the Board quoted Wright v. Interstate and Ocean Transportation
(4th Cir. 1980) 	623 F.2d 888 [104 LRRM 2408] 	to the following effect:
To sustain a member's action against his union . 	.
it is not necessary that the union's breach be
intentional. 	A union representative could be so
indifferent to the rights of members or so grossly
deficient in his conduct purporting to protect the
rights of members that the conduct could be equated
with arbitrary action. 	(Slip Op. p. 5.)
The allegations of the charge do not set forth a prima facie violation of EERA
section 3543.6(b). 	The charge does not. contain allegations which suggest that
charging party had a right to grieve under the contract. 	She concedes that
55

she did not receive pay for 100 days' work during the preceding academic
year. 	The contract states that a day-to-day substitute in her circumstances
is not covered by the contract. 	(See fn. 2, supra.) 	No duty of fair
representation was owed 	to her.3
If you feel that there are facts which would correct the deficiencies
explained above, please amend the charge accordingly: 	(1) The amended charge
should be prepared on a standard PERB unfair practice charge form clearly
labeled First Amended Charge, 	(2) contain all the facts and allegations you
wish to make, 	(3) 	indicate the case number where indicated on the form (even
though you are not to write in the box when originally filing a charge),
(4) 	and be signed under penalty of perjury by the charging party 	(forms
enclosed). 	She amended charge must be served on the respondent, and proof of
service must be attached to the original as well as to all copies of the
amended charge (forms enclosed).
If I do not receive an amended charge or withdrawal from you on or before
July 30, 1986, I shall dismiss your charge. 	If you have any questions on how
to proceed, please call me at (415) 557-1350.
Sincerely yours.
Peter Haberfeld'
Regional Attorney
Enclosures
3Besides the fatal defect discussed above that charging party was not a
member of the unit, and therefore the exclusive representative had no
obligation to represent her, allegations describing incidents occurring prior
to November 21, 1985 must be dismissed as untimely. 	San Dieguito Union High
School District 	(1982) PERB Decision No. 194. 	Charging party must allege and
ultimately establish that the alleged unfair practice "either occurred or was
discovered within the six-month period immediately preceding 	the filing of the
charge with PERB.
-
6
' I
6