United Teachers of Los Angeles (Clark) (PERB 0796E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SANDRA 	CLARK,
Charging 	Party,
v.
UNITED TEACHERS OF LOS ANGELES,
Respondent.
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) 	Case No. 	LA-CO-4 71
PERB 	Decision No. 	796
March 22, 	1990
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Appearance: 	Sandra Clark, 	on her own behalf.
Before Craib, 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by Sandra Clark of 	the 	Board
agent's dismissal, 	attached hereto, 	of her charge that the United
Teachers 	of 	Los Angeles 	violated 	section 	3544.9 	of 	the
Educational 	Employment Relations Act. 	We have 	reviewed the
dismissal and, 	finding it to be free of prejudicial 	error, 	adopt
it as 	the decision of the Board itself.
The unfair practice charge in Case No. 	LA-CO-4 71 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Craib and Camilli 	joined 	in this 	Decision.
(
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STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916)322-3198
December 8, 	1989
Sandra 	Clark
Re: 	Sandra Clark v. 	United Teachers 	of Los Angeles, 	Unfair
Practice Charge No. 	LA-CO-471
Dear Ms. 	Clark:
On February 25, 	1989, 	you filed a charge against the 	United
Teachers 	of 	Los Angeles 	(UTLA). 	In the 	charge you alleged 	that
UTLA violated 	its 	duty of 	fair 	representation by 	failing 	to
proceed 	to arbitration on three grievances. 	The 	charge has 	been
amended 	three 	times.
I 	indicated 	to 	you 	in my attached 	letter dated November 	3, 	1989
that 	the 	above-referenced 	charge did not 	state 	a prima 	facie
case. 	You were 	advised 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further advised 	that 	unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew it
prior to November 	13, 	1989, 	the charge would be dismissed. 	The
most 	recent 	amended 	charge was 	received 	in this 	office 	on
November 22, 	1989. 	I 	am dismissing your charge based on the
facts 	and 	reasons 	contained here 	and 	in my November 	3, 	1989
letter.
At 	the 	time 	of 	the 	attached warning 	letter, 	UTLA had 	referred
your grievances 	to 	its 	grievance review committee. 	The 	referral
followed 	the 	assertion by 	the 	district 	that 	the 	grievances 	had
been 	settled 	as 	part 	of 	the 	settlement 	of 	the disciplinary 	matter
between you and 	the 	district. 	As 	asserted 	in your amended
charge, 	"the 	district did not provide 	the union with releases 	of
the 	grievances 	or any other proof 	that 	the 	grievances 	were 	not
still 	alive." 	UTLA representative 	Patricia 	Bell 	twice 	requested
that you 	supply the union with the 	settlement agreement. 	Her
second 	letter 	stated 	that 	if 	you did not 	supply 	the 	settlement 	"I
will 	have 	no 	choice 	but 	to withdraw the grievance." 	Your
position 	is 	that 	the parties 	to the 	settlement agreed 	that 	it
would not be made public 	and, 	therefore, 	you are not able 	to
share 	the 	agreement with 	UTLA. 	Your amended 	charge 	states 	that
UTLA has 	now decided not 	to 	take 	your 	case 	to 	arbitration.
As 	I 	indicated 	in the attached warning 	letter, 	to 	show a 	breach
of 	the duty 	of 	fair 	representation 	a 	charging party 	must 	state

sufficient 	facts 	indicating 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
(1983) 	PERB Decision No. 	332. 	You have 	stated your disagreement
with 	UTLA's 	decision not 	to proceed with 	the 	grievances 	despite
the district's position. 	However, 	you have not 	shown that the
decision to 	not proceed 	in the 	face of 	the district's 	defense was
without 	a 	rational 	basis 	or devoid of honest 	judgment.
Disagreement with the union's decision is 	not 	sufficient. 	Even a
showing 	of 	negligence 	or poor 	judgment 	is 	insufficient 	to
establish 	a 	breach of 	the duty of 	fair representation. 	United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.
A union's 	estimation 	of 	the 	"probability 	of 	success 	on 	the 	merits
is 	a 	judgment made by the union to which the 	courts 	have
generally deferred" 	(Morris, 	The 	Developing 	Labor Law 	(2nd 	Ed.
1983) 	p. 	1330). 	Accordingly, 	you have not shown sufficient facts
to 	establish 	a breach of 	the union's 	duty of 	fair 	representation.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of 	this 	dismissal 	(California Administrative 	Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must be 	actually 	received 	by 	the 	Board
itself before 	the close of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified 	or Express 	United 	States 	mail 	postmarked 	no
later 	than the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall apply. 	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
copies 	of 	a 	statement 	in 	opposition within 	twenty 	calendar 	days
following 	the 	date 	of 	service of 	the appeal 	(California
Administrative Code, 	title 8, 	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 California Administrative 	Code,
title 	8, 	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.
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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 	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 	(California
Administrative Code, 	title 8, 	section 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,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By 	_
Bernard 	McMonigle
Staff 	Attorney
Attachment
cc: 	Jesus Quinonez
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5TATE OF CALIFORNIA GEORGE DEUKMEJIAN, Governo PUBLIC EMPLOYMENT RELATIONS BOARD	r
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916)322-3198
PERD
November 3, 	1989
Sandra 	Clark
Re: 	Sandra Clark v. 	United Teachers of Los Angeles. 	Unfair
Practice Charge No. 	LA-CO-471
WARNING 	LETTER.
Dear Ms. 	Clark:
On February 25, 	1989, 	you filed a charge against the United
Teachers 	of Los Angeles 	(UTLA). 	In the charge you 	alleged that
UTLA violated 	its 	duty of 	fair 	representation by 	failing 	to
proceed 	to 	arbitration on three 	grievances.
/
My investigation reveals the 	following. 	On January 23, 	1989, 	you
received 	a 	letter 	from the 	grievance 	review committee 	of 	UTLA.
That 	letter 	stated 	that 	the 	committee 	had decided 	to 	proceed 	to
arbitration on cases No. 	12, 	14 and 	15, 	which had been filed
against the Los Angeles 	Unified School District 	(LAUSD). 	Shortly
thereafter, 	you received another 	letter 	from Sam Kresner, 	UTLA
Director 	of 	Organizational 	Services, 	stating 	that 	the 	grievances
would 	be 	stayed pending 	the 	outcome 	of 	statutory 	dismissal
hearing proceedings 	in which you 	and 	the 	LAUSD were 	involved.
Article 	10, 	subsection 	11(h) 	of the collective bargaining
agreement 	between UTLA and 	LAUSD 	states 	in part:
If 	a 	statutory 	suspension 	or dismissal
proceeding 	is 	filed 	based 	in whole 	or part
upon the 	service 	or 	conduct which 	gave 	rise
to 	the 	disciplinary 	proceeding 	under 	this
section, 	then any 	grievance 	arising under
this 	section not yet 	taken to 	arbitration
shall 	be 	deferred pending 	resolution of 	the
statutory 	proceeding.
Grievance No. 	12 protests 	an unsatisfactory 	evaluation which
allegedly was 	not 	issued 	for 	just 	cause 	and 	the 	remedy 	sought was
reinstatement 	of 	money 	since 	1985 	and 	a position 	closer 	to your
home. 	Grievance No. 	14 	states that 	"Sandra Clark, 	grievant,
learned 	that 	dismissal 	case 	against 	her 	had been 	decided 	in her
favor" 	and requests 	payment 	for 	full 	and half days 	of 	illness
leave owed to her since 	1985. 	Grievance No. 	15, 	filed 	in October
1988, 	objects 	to the 	failure 	of 	the 	school 	district to process
illness 	cards, 	medical and dental benefits, 	and half-pay
provisions 	of 	the 	contract. 	The 	school 	district 	took the
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position 	that 	the 	grievances 	arose 	out 	of 	the 	discipline 	which
had 	been 	taken 	against 	you 	and 	no 	arbitration 	should 	proceed
until 	the 	statutory 	procedures 	had been 	exhausted. 	At 	the 	time
you 	filed 	this 	charge 	you 	had 	received 	a 	favorable 	decision by
the 	Commission of 	Professional 	Competence, 	and 	that 	decision was
the 	subject 	of 	a writ 	of 	mandate proceeding which 	had 	been 	filed
by the LAUSD. 	Education Code 	44945 	provides 	that 	a 	commission,
decision may, 	on petition, 	be 	reviewed by a 	court of 	competent
jurisdiction by 	a writ of 	mandate.
In August 	1989, 	you 	settled your disciplinary case with 	LAUSD.
You 	have 	stated 	that 	the 	settlement 	does 	not 	cover 	the 	subject
grievances. 	In 	early 	September you 	informed 	Sam 	Kresner 	of 	the
settlement. 	He 	told you 	that 	the union would proceed 	on 	the
grievances 	and advised you 	to 	call 	UTLA agent 	Patricia 	Bell. 	She
informed 	you 	that 	the 	grievances would be 	reviewed 	by 	her 	in 	the
near 	future 	and 	a decision would be made. 	In your 	conversations
with them, 	you 	indicated 	to 	the 	UTLA representatives 	that 	the
settlement 	reached with LAUSD 	did 	not 	include 	the 	grievances. 	No
release with respect 	to the 	grievances was 	sent. 	On
September 	18, 	1989, 	we received your amended charge which 	alleged
that UTLA was 	continuing 	"to refuse 	to process 	grievances 	as 	of
September 	13, 	1989." 	In late September or early October, 	UTLA
made a demand on LAUSD 	for arbitration of 	the grievances. 	The
district 	took 	the position 	that 	the 	grievances 	had 	been 	settled
as 	part 	of 	your 	settlement agreement. 	The district 	did 	not 	take
the position that 	the 	demand 	for 	arbitration was 	untimely.
On or about October 	5, 	Patricia 	Bell 	sent 	a 	letter 	to you which
indicated 	that 	UTLA 	had 	made 	an 	arbitration 	demand 	on 	the
District. 	You were 	asked to contact 	the 	union 	and 	submit 	a 	copy
of 	the 	settlement 	agreement 	for 	review 	in 	light 	of 	the 	district's
position. 	On or about October 	20 	you received 	another 	letter
from Patricia 	Bell 	which 	stated 	that 	it was 	necessary 	to 	respond
to 	the 	earlier request within 	five days 	or 	"I 	will 	have 	no 	choice
but 	to withdraw the 	grievance." 	On or about October 	2 5 	you
talked 	to 	Patricia 	Bell, 	the 	UTLA agent handling 	the 	grievance.
Again 	she 	indicated 	to 	you 	that 	the 	District was 	refusing 	to
proceed 	to 	arbitration 	because 	the 	grievances 	had 	been 	settled.
She 	further 	stated 	that 	it was 	necessary 	for 	the 	grievance 	to 	be
sent back to 	the 	grievance 	review committee. 	She 	indicated 	that
you would 	be 	contacted 	by 	the 	union. 	With 	regard 	to 	the 	union's
request 	for a 	copy of 	the 	settlement 	agreement, 	your position 	is
that 	the 	parties 	to 	that 	agreement 	agreed 	that 	it would 	not 	be
made public, 	therefore, 	you are not able to 	share 	the 	settlement
agreement with 	the 	union.
The 	exclusive 	representative 	is 	under no 	obligation 	to 	take 	a
grievance 	to 	arbitration as 	long as 	it does 	not 	refuse 	to 	do 	so
based upon arbitrary, 	discriminatory, 	or bad 	faith reasons.
Sacramento City Teacher Association 	(1984) 	PERB 	Decision No. 	428.
This 	standard was 	adopted 	from 	the 	United 	States 	Supreme 	Court
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decision in Vaca v. 	Sipes 	(1967) 	386 U.S. 	171 at 	190. 	In United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258,
the 	Board 	stated:
A 	union may 	exercise 	its 	discretion to
determine 	how far 	to pursue 	a 	grievance 	on
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.
Nor must 	a 	union take 	even 	a 	meritorious 	grievance 	to
arbitration. 	In determining whether or not 	to 	take 	a 	grievance
to arbitration 	(or to 	file 	a 	grievance 	in the 	first place) 	the
union 	is 	free 	to 	consider whether 	the 	grievance 	victory would
damage 	terms 	and 	conditions 	of 	employment 	for the 	bargaining 	unit
as 	a whole. 	Castro Valley 	Teachers Association 	(McElwain) 	(1980)
PERB Decision No. 	149. 	An 	exclusive representative's 	negligence
or poor 	judgment 	in the handling of 	a 	grievance 	is 	not 	sufficient
to 	find a 	breach of 	the duty 	of 	fair representation. 	United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.
The 	charging party 	must 	show 	sufficient 	facts 	indicating 	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 	(1983) 	PERB Decision No. 	332.
With respect to the original 	charge, 	you have not 	stated a prima
facie 	case. 	The union contract 	states 	that 	if a 	statutory
dismissal 	proceeding 	is 	ongoing, 	any grievance 	arising out 	of
conduct which gave 	rise 	to 	the 	proceeding 	shall 	be 	deferred
pending a 	resolution. 	The 	union takes 	the position 	that 	the
grievances 	should have been 	stayed 	under 	this 	provision.
Grievance 	12 	contests 	an unsatisfactory rating. 	You 	contend 	that
because 	grievances 	14 	and 	15 	"occurred 	after the 	dismissal
proceeding," 	they 	could not 	reasonably be 	construed 	as 	being
based 	on 	conduct 	giving 	rise 	to 	the 	statutory 	disciplinary
procedure. 	However, 	the district's 	liability 	in both grievances
could depend 	directly 	on 	the 	outcome 	in the 	disciplinary
proceedings. 	Grievance 	14 	bases 	the owing of 	illness 	leave 	and
fringe 	benefits 	on 	the 	favorable 	ruling 	received 	from 	the
Commission on Professional 	Competence. 	Grievance 	15 	also demands
the 	restoration of 	certain 	contractual payments.
Additionally, 	it 	is 	reasonable to 	interpret 	the writ 	of 	mandate
proceedings 	as part 	of 	the 	"statutory proceedings" 	to which 	the
contract refers. 	Education Code 	section 44945 	states, 	"The
decision of 	the Commission on Professional 	Competence may, 	on
petition of 	either the governing board or the 	employee, 	be
reviewed by 	a 	court 	of 	competent 	jurisdiction 	in 	the 	same 	manner
as 	a decision by a hearing officer." 	Accordingly, 	you have 	not
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met 	your 	burden of 	showing 	that 	UTLA's 	action 	of 	putting 	the
grievance 	arbitration 	in 	abeyance pending 	the 	outcome 	of 	the
statutory procedure was without 	a 	rational 	basis 	or devoid 	of
honest 	judgment.1
With 	respect 	to 	your 	amended 	charge 	you 	have 	also 	not 	stated 	a
prima 	facie 	case. 	In the 	amended 	charge 	you 	allege 	that 	UTLA
"continues 	to refuse to process 	grievances 	as 	of 	September 	13,
1989." 	However, 	the 	facts do not 	show that UTLA refuses 	to
process 	your case to arbitration. 	As 	indicated earlier, 	it was
not 	a 	violation 	for the union to hold 	the 	grievances 	in abeyance
pending 	the 	resolution of 	the 	statutory proceedings 	which
apparently occurred 	in mid to 	late August. 	Since 	that 	time 	the
union has 	made 	a demand 	for arbitration upon the 	District. 	The
District 	has 	taken the position 	that 	the 	matter was 	settled 	as
part 	of 	your 	settlement agreement. 	The 	union has 	done 	further
investigation 	to 	determine whether 	or 	not 	to proceed 	to 	the
arbitration 	stage 	and 	it 	has 	now referred 	the 	matter 	to 	its
grievance review committee. 	To date, 	there has 	been no refusal
to 	take the 	cases 	to arbitration. 	The union is 	currently trying
to assess 	the merit of the district's 	new defense.2 Again, 	there
has 	been no 	showing that 	the union's 	actions 	have 	been without 	a
rational 	basis 	or devoid of honest 	judgment. 	Accordingly, 	this
allegation must 	also be dismissed.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there 	are any 	factual 	inaccuracies 	in
this 	letter 	or 	any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend 	the 	charge
accordingly. 	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 	must 	be 	signed 	under penalty 	of perjury 	by 	the 	charging
party. 	The 	amended 	charge 	must 	be 	served on the 	respondent 	and
the 	original proof of 	service must be 	filed with PERB. 	If 	I 	do
1You alleged 	that 	the 	UTLA 	actions 	were 	discriminatory 	and
indicated that in 	1985, 	Wayne Johnson, 	the President of UTLA, 	had
said 	"blow her 	off" 	with 	respect 	to 	other 	grievances 	filed 	by
you. 	However, 	there are 	no 	facts 	showing that your grievances
have 	been 	handled 	differently 	than 	grievances 	of 	other 	similarly
situated 	employees.
2In your 	amended 	charge 	you 	allege 	that 	UTLA 	has 	"refused 	to
proceed 	in 	a 	timely 	fashion 	causing 	prejudice 	to 	the 	grievances
and 	staleing 	[sic] 	the 	evidence, 	and making 	it difficult 	to
represent 	the case appropriately." 	As 	indicated, 	the 	placing 	of
the 	cases 	in abeyance 	through 	the 	settlement 	is 	not 	a 	violation.
Further, 	there 	is 	yet no 	showing that 	the union has 	failed to
proceed 	in a 	timely 	fashion. 	The LAUSD has 	not 	taken 	the
position 	that 	arbitration 	is 	untimely.
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not 	receive 	an 	amended 	charge 	or withdrawal 	from 	you 	before
November 	13, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney
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