United Teachers-Los Angeles (Vigil) (PERB 0934E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AUDREY B. 	VIGIL,
Charging 	Party,
v.
UNITED TEACHERS-LOS ANGELES,
Respondent.
Case No. 	LA-CO-569
PERB Decision No. 	934
May 19, 	1992
Appearances: 	Ken Cameron, 	Attorney for Audrey B. 	Vigil; 	Taylor,
Roth, 	Bush & Geffner by Jesus E. 	Quinonez, 	Attorney, 	for United
Teachers-Los Angeles.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	by Audrey B.
Vigil 	(Vigil) 	of a Board agent's dismissal, 	attached hereto, 	of
her charge 	that 	the 	United Teachers-Los Angeles 	(UTLA) 	violated
section 3543.6(b) 	of the Educational Employment Relations Act
(EERA)1 by failing to 	satisfy its duty of 	fair representation.
The 	Board has 	reviewed the 	Board 	agent's 	warning and dismissal
letters, 	and, 	finding them to be free of prejudicial error, 	adopt
them as 	the decision of the Board itself.
In the appeal, 	Vigil 	asserts 	that UTLA has 	not provided her
with 	a 	reason 	for 	its 	denial 	of 	her request 	to pursue her
grievances 	to arbitration. 	Vigil asserts 	that this 	is 	evidence
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
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that 	UTLA's 	conduct 	in denying her request was 	arbitrary,
discriminatory 	and 	in bad 	faith.
In the warning and dismissal 	letters, 	the Board agent
correctly 	found 	that 	neither this 	conduct 	nor any 	other 	conduct
alleged 	in the 	charge 	constitutes 	arbitrary, 	discriminatory 	or
bad 	faith conduct 	in violation of 	the duty of 	fair
representation. 	(Corona-Norco 	Teachers 	Association 	(Paloma)
(1991) 	PERB Decision No. 	909.)
The unfair practice charge in Case No. 	LA-CO-569 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERB
January 10, 	1992
Ken 	Cameron
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CO-569, Audrey B. 	Vigil v.
United Teachers 	- 	Los Angeles
Dear Mr. 	Cameron:
I 	indicated to you 	in my attached 	letter dated January 	2, 	1992,
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 January 	9, 	1992, 	the charge would be dismissed.
On January 	9, 	1992, 	I 	received from you a letter contending that
an amended charge 	is 	unnecessary, 	on the basis 	of 	arguments 	that
had been previously made and considered. 	The 	charge has 	not 	been
amended or withdrawn. 	I 	am therefore dismissing 	the 	charge based
on the 	facts 	and reasons 	contained 	in my January 	2 	letter.
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 Code of Regs., 	tit. 	8,
sec. 	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 Code of Regs., 	tit. 	8,
sec. 	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

Dismissal
LA-CO-569
January 10, 	1992
Page 2
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following 	the date of 	service 	of 	the 	appeal 	(California 	Code 	of
Regs., tit. 	8, 	sec. 	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 Code of Regs., 	tit. 	8,
sec. 	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 	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 	Code 	of
Regs., tit. 	8, 	sec. 	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,
JOHN W. 	SPITTLER
General 	Counsel
Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Jesus Quinones

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 2, 	1992
Ken Cameron
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-56 9,
Audrey B. 	Vigil v. 	United Teachers 	- Los Angeles
Dear Mr. 	Cameron:
In the above referenced charge, 	Charging 	Party Audrey B. 	Vigil
(Vigil) 	alleges that United Teachers 	- Los Angeles 	(UTLA)
violated 	its 	duty of 	fair representation under Government 	Code
section 	3544.9 	of 	the Educational 	Employment Relations Act
(EERA).
My 	investigation of 	the 	charge reveals 	the 	following 	facts.
Vigil 	is 	employed by the Los Angeles 	Unified School 	District
(District) 	in a unit for which UTLA is 	the exclusive
representative. 	On January 	17, 	1991, 	Vigil received a 	letter of
reprimand 	from her 	supervisor. 	Vigil 	filed a grievance, 	alleging
violations of Article X, 	Section 	11.0, 	of the collective
bargaining agreement, 	which concerns 	"Notices 	of 	Unsatisfactory
Service or Act, 	and Suspension." 	The District denied the
grievance, 	stating, 	"Based on judicially confirmed awards,
letters 	of 	reprimand are 	not grievable."
On January 24, 	1991, 	Vigil was 	transferred from one Children's
Center to another. 	Vigil 	filed a 	second grievance, 	alleging a
violation of Article XI, 	Section 2.0, 	which provides 	that the
District may 	transfer employees 	"when 	such 	action 	is 	deemed 	to 	be
in the best 	interest of 	the 	educational program of 	the 	District."
Vigil 	stated, 	"Grievant 	feels 	this 	[her transfer] 	is 	not 	in the
best 	interest of 	the 	educational program." 	The 	District 	denied
this 	grievance as well, 	stating, 	"Administrative transfers 	are
permitted under 	the provisions 	of 	the 	collective bargaining
agreement, Article XI, 	section 2.0."
Vigil 	presented her 	two 	grievances 	to 	the 	UTLA Grievance 	Review
Committee. 	Her attorney was 	not allowed to participate. 	On June
17, 	1991, 	UTLA informed Vigil by letter, 	"After giving full
consideration to all 	information available to the 	committee, 	we
have decided 	not 	to 	arbitrate." 	The 	letter did 	not 	give 	reasons
for the decision.

Warning 	Letter
LA-CO-569
January 2, 	1992
Page 2
Meanwhile, 	on May 3, 	1991, 	Vigil received a Final Evaluation
Report 	("Stull") 	which was 	generally 	favorable 	but 	also 	included
some 	negative 	comments 	and 	identified 	some 	skills 	as 	needing
improvement. 	It is alleged, 	"On June 3, 	1991, 	Vigil filed a
grievance 	regarding the 	Stull 	evaluation which was 	orally denied
by 	[UTLA Area Representative Dot] 	DeLeon; 	UTLA never wrote a
reply 	or 	took the 	grievance 	to 	arbitration." 	The 	grounds 	for the
grievance are not apparent. 	Article X, 	Section 	6.3, 	provides 	in
part as 	follows:
Evaluations 	are 	not 	subject 	to 	the
grievance procedures 	of Article V, 	except
when the 	final 	overall 	evaluation is 	"Below
Standard." 	However, 	if the overall
evaluation is 	"Meets Standards" 	but there is
a 	significant 	disparity 	between 	that 	rating
and the negative 	comments 	on the 	form, 	the
evaluation 	shall 	be 	subject 	to 	the 	grievance
procedure on the 	same basis 	as 	it would have
been had 	the overall 	rating been Below
Standard.
It 	is 	also 	not 	apparent whether the 	District responded to 	the
grievance, 	or whether Vigil presented the grievance to the 	UTLA
Grievance 	Review Committee.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie violation of the EERA, 	for the 	reasons 	that 	follow.
Charging 	Party Vigil 	has 	alleged 	that 	the 	exclusive
representative 	UTLA denied Charging 	Party 	the 	right 	to 	fair
representation 	guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby
violated EERA 	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) 	(1983)
PERB Decision No. 	258. 	In order to 	state a prima 	facie violation
of 	this 	section of 	the EERA, 	a Charging Party must 	show that 	the
exclusive 	representative's 	conduct was 	arbitrary, 	discriminatory,
or 	in bad 	faith. 	In United Teachers 	of 	Los Angeles 	(Collins),
id.. 	the Public 	Employment Relations 	Board 	(PERB) 	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.

Warning 	Letter
LA-CO-569
January 2, 	1992
Page 3
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.
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, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
It 	is 	not 	apparent 	from the 	charge 	how UTLA's 	conduct was 	without
rational basis, 	devoid of honest 	judgment, 	discriminatory or 	in
bad 	faith. 	The 	charge 	sets 	forth 	the proposition that 	UTLA's
duty of 	fair representation 	"included a duty to 	arbitrate 	the
dispute 	or 	to 	give 	a 	sufficient 	reason 	for not 	arbitrating."
Although 	I 	requested 	authority 	supporting 	this 	proposition, 	none
has 	been provided. 	On the 	contrary, 	the 	cases 	quoted above
indicate 	that 	the 	burden 	is 	on a 	Charging Party 	to 	show how the
exclusive 	representative 	abused 	its 	discretion, 	and not 	on the
exclusive 	representative 	to 	show how 	it properly 	exercised 	its
discretion.
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 	signe	- d 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
not 	receive 	an 	amended 	charge 	or withdrawal 	from 	you 	before

Warning 	Letter
LA-CO-569
January 2, 	1992
Page 4
January 	9, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney