Service Employees International Union, Local 99 (Wardlaw) (PERB 1219E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

IRA WARDLAW,

Case No. LA-CO-738

~~ Lwin

Charging Party,

Vv. ) PERB Decision No. 1219

) ;

SERVICE EMPLOYEES INTERNATIONAL ) September 24, 1997

UNION, LOCAL 99, )
)

Respondent. )

}

Appearance; Ira Wardlaw, on his own behalf.

Before Caffrey, Chairman; Johnson and Jackson, Members.
DECISION, AND _ ORDER

JACKSON, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Ira Wardlaw (Wardlaw) toa
Board agent's dismissal (attached) of his unfair practice charge,
Wardlaw alleges that the Service Employees International Union,
Local 99, breached its duty of fair representation in violation
of section 3544.9 of the Educational Employment Relations Act
(EERA) .*

The Board has reviewed the entire record in this case,
including the Board agent's warning and dismissal letters, the

original and amended unfair practice charge and Wardlaw's appeal.

“EERA is codified at Government Code section 3540 et seq.
Section 3544.9 provides:

The employee organization recognized or
certified as the exclusive representative for
the purpose of meeting and negotiating shall
fairly represent each and every employee in
the appropriate unit.

The Board finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
The unfair practice 	charge 	in Case No. 	LA-CO-738 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916)322-3198
July 14, 1997
Ira Wardlaw
Re: 	Ira Wardlaw v. 	Service Employees International Union.
Local 99
Unfair Practice Charge No. 	LA-CO-738
DISMISSAL OF 	CHARGE/REFUSAL TO 	ISSUE 	COMPLAINT
Dear Mr. Wardlaw:
In the above referenced amended charge, 	filed on April 14, 	1997,
you allege that 	the Los Angeles 	City and County School Employees
Union, 	Local 99 	(Union) 	breached its duty of fair representation
to you in its handling of your Skelly hearing with the Los
Angeles Unified School District 	(District) 	on March 27, 	1997, 	and
its refusal to file a grievance with the District on your behalf.
This conduct 	is alleged to violate Government Code section 3544.9
of the Educational Employment Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated June 19, 	1997,
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 which would correct 	the
deficiencies explained in that 	letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to June
27, 	1997, 	the charge would be dismissed.
On June 24, 	1997, 	you filed a first amended charge. 	The amended
charge 	included further details of the Skelly meeting and the
Union's refusal to process your grievance claim, 	as well as
additional case law and statutory sources. 	You also included a
letter stating that the Skelly meeting, 	not the Personnel
Commission meeting, 	was held to discuss the issue of your
involuntary transfer by the District. 	I considered the 	facts
stated in your amended charge 	in making my decision.
Based on the 	facts contained in both the original and amended
charges, 	the charge fails to state a prima facie violation of the
duty of fair representation, 	and is therefore dismissed.
PERB decisions do not extend a union's duty of 	fair
representation to extra-contractual forums, 	such as Skelly
meetings. 	In Los Angeles Unified School District 	(1994) 	PERB
Decision No. 	1061, 	PERB held that 	"an EERA duty of fair
representation does not apply to a union's representation in an

C
extra-contractual 	forum because that 	forum is unconnected to any
aspect of negotiation or administration of a collective
bargaining agreement 	and the union does not 	exclusively control
the means to the particular remedy." 	You stated you knew no
reason for the Union to discriminate against you. 	The Union was
not 	in breach of its duty. 	The Union also did not breach its
duty of representation in declining to file your grievance. 	This
decision is explained in the attached warning letter.
LA-CO-738
Dismissal Letter
July 14, 	1997
Page 2
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. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the case name and number. 	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 p.m.) 	or sent by
telegraph, 	certified or Express United States mail postmarked no
later than the last date set for filing. 	(Cal. 	Code Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Attention: Appeals Assistant
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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code
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 Cal. 	Code 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.
( 	(

LA-CO-738
Dismissal Letter
July 14, 	1997
Page 3
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 goad 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, 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,
ROBERT THOMPSON
Deputy General 	Counsel
By RUSSELL NAYMARK
Board Agent
Attachment
cc: 	Hope Singer

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
June 19, 1997
Ira Wardlaw
Re: 	Ira Wardlaw v. 	Service Employees International Union,
Local 99
Unfair Practice Charge No. 	LA-CO-738
WARNING 	LETTER
Dear Mr. Wardlaw:
In the above referenced charge, 	filed on April 14, 	1997, 	you allege
that the Los Angeles City and County School Employees Union, 	Local
99 	(Union) 	breached its duty of fair representation to you. 	This
conduct 	is alleged to violate Government Code section 3544.9 of the
Educational Employment Relations Act 	(EERA or Act). 	We discussed
these issues by telephone on today's date.
My investigation of 	the charge reveals 	the 	following relevant
facts.
You worked as a permanent Cafeteria Helper in the Los Angeles
Unified School District 	(District) 	between March 1996 and May 1997.
Your duties 	included preparing and serving meals to students and
cleaning the cafeteria facilities.
Between March 1996 and March 1997, 	you made numerous complaints to
the District about your working conditions, 	the physical 	strain
your duties put on you, 	and the way other employees' 	treated you.
On May 22, 	1996, 	you filed a grievance with the District regarding
your work schedule. 	The District refused to process the grievance
on June 21, 	1996, 	for failure to cite a violation of the Unit C
bargaining agreement.
Beginning March 1996, 	your supervisors 	filed numerous complaints
about your behavior, 	alleging that you acted discourteously or
angrily towards your co-workers. 	The District 	suspended you from
service for twenty working days from September 9, 	1996 	to October
4, 	1996, 	on charges including inefficiency, 	inattention to or
dereliction of duty, 	and discourteous or abusive treatment of
employees.
The District again charged you with discourteous 	treatment of
employees 	for incidents which allegedly occurred between December
11, 	1996 and January 9, 	1997, 	including disrupting a staff meeting,
shaking a list of complaints at the cafeteria manager, 	insisting
the complaints be discussed at that time, 	and trying to initiate a
===---

fight with another cafeteria helper. 	The District 	involuntarily-
transferred you to a different 	school 	in the District on January
15, 	1997. 	The District claimed that your actions violated Section
9 of the Food Services Branch Guidelines on Rules That Must Be
Enforced Constantly and a 	1988 Board Resolution that 	reaffirmed the
District's commitment to respectful treatment of all people. 	You
claim that the District 	did not 	comply with the contract's
requirement that it make a reasonable effort to notify you of the
transfer at 	least 	five working days prior to the effective date of
the involuntary transfer, 	but rather, 	that it only contacted you
the day before the transfer.
LA-CO-738
Warning Letter
June 19, 1997
Page 2
You attempted to file a grievance with the Union on March 21, 	1997.
According to you, 	the Union's disciplinary representative, 	Floyd
Lewis, 	declined to file the grievance.
On March 27, 	1997, 	you attended a Skelly meeting, 	accompanied by
Union representative Floyd Lewis, 	with District officials to
discuss the District's disciplinary actions against you. 	You claim
you asked Mr. 	Lewis to request copies of conferences memos which
the District 	is contractually obliged to provide to a disciplined
employee. 	According to the Unit C contract, 	the purpose of a
conference memo is 	"to inform the employee in writing about
perceived deficiencies, 	where appropriate to provide constructive
assistance to the employee to improve, 	and to document the
communication on a reasonably current basis." 	The contract
provides that 	"a copy of the memo will be given to the employee."
You wished to use the conference memos to help prepare your defense
to the charges against you.
You claim that Mr. 	Lewis did not request the conference memos. 	You
also claim that Mr. 	Lewis did not inform the District officials
that 	they had violated the contract by failing to provide you with
copies of the conference memos. 	You claim you gave Mr. 	Lewis a
list of people to contact who could serve as witnesses on your
behalf, 	but that Mr. 	Lewis did not contact people on the list. 	You
allege that Mr. 	Lewis said at the meeting that you were not
"perfect" 	and that you could have been angry during the 	incidents
for which the District had charged you. 	You claim that Mr. 	Lewis
did 	"absolutely nothing" 	on your behalf at the meeting. 	After
discussing the alleged charges against you, 	the District
recommended that you be dismissed permanently.
The District's personnel commission held a hearing on May 14, 	1997,
to hear your appeal of your involuntary transfer. 	You were
assisted by private counsel 	at the hearing. 	The District dropped
all but the inefficiency charge. 	In exchange, 	you promised to drop
all further complaints against the District. 	The District
dismissed you from your Cafeteria Helper position on June 4, 	1997.
(
	(

LA-CO-738
Warning Letter
June 19, 	1997
Page 3
You claim that 	the Union breached its duty to fairly represent you
at the March 27, 	1997 Skelly meeting. 	You claim that Union
representative Floyd Lewis had a duty to request that 	the District
provide you with the conference memos describing the basis 	for its
disciplinary actions. 	If the Union had copies of the conference
memos, 	you claim the Union had a duty to give you copies of the
memos. 	You claim the Union further breached its duty when Mr.
Lewis admitted to some of the District's charges.
Based on the facts stated above, 	the charge does not state a prima
facie violation of EERA, 	for the reasons that follow.
Government Code section 3544.9 of EERA states in relevant part that
"(t)he employee organization recognized or certified as 	the
exclusive representative 	for the purpose of meeting and negotiating
shall 	fairly represent each and every employee 	in the appropriate
unit."
The Public Employment Relations Board 	(PERB) 	has held that an
exclusive representative violates 	its duty of 	fair representation
when its conduct towards a member of the bargaining unit 	is
arbitrary, 	discriminatory, 	or in bad faith. 	(Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB Decision No. 	124,
citing Vaca v. 	Sipes 	(1967) 	386 U.S. 	717 	[64 LRRM 2369].) 	You
stated you knew no reason for the Union to discriminate against
you. 	You do not 	claim that the Union made any promises to you it
did not keep. 	PERB decisions have required a strong showing of
union insincerity, 	such as a pattern of false promises to an
employee or explicit 	discrimination or retaliation against 	an
employee, 	to hold the union breached its duty.
For instance, 	in San Francisco Classroom Teachers Association
(Bramell) 	(1984) 	PERB Decision No. 	430, 	PERB held that a pattern of
union misrepresentations to one of its members amounted to a breach
of 	its duty of 	fair representation under EERA. 	The decision
states, 	however, 	that 	"any one of these actions, by itself, 	would
not breach the Association's duty." 	The union had failed to honor
the member's request to appeal his discharge to the second level of
the grievance procedure. 	The union then failed to fulfill 	its
promise to the member to request an extension of the deadline 	for
the union to file an appeal. 	Allegedly in an effort to cover up
its failure, 	the union then stated in a letter to the member that
the grievance would not be pursued further because it 	lacked merit.
PERB held in that decision that a union's 	failure to assist a
member does not breach its duty of fair representation. 	Although
the union took no action on its member's request to take his
grievance to the second step, 	"no breach of the duty of fair
representation 	is described merely by declining to proceed or by
(

negligently forgetting to file a timely appeal." 	Even if Mr. 	Lewis
did not heed all of your requests, 	that would not constitute a
breach of duty.
LA-CO-738
Warning Letter
June 19, 	1997
Page 4
In California Faculty Association 	(MacDonald) 	(1994) 	PERB Decision
No. 	1046-H, 	PERB noted that a 	"perfunctory" 	handling of a grievance
constituting 	"arbitrary" 	conduct 	"could result 	from a complete
failure to investigate the facts underlying a grievance or an
unexplained failure to perform a ministerial duty, 	typically
resulting in a procedural default." 	You do not claim any
procedural default, 	and you have not claimed that the Union
completely failed to investigate the District's charges against
you. 	As PERB stated in United Teachers of Los Angles 	(Collins)
(1983) 	PERB Decision No. 	258, 	"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."
In United Teachers - Los Angeles 	(Farrar) 	(1990) 	PERB Decision No.
797, 	PERB stated that a union's 	"alleged failure to make the
arguments 	and introduce 	the evidence deemed significant by
(charging party) 	is insufficient to establish a breach of the duty
of 	fair representation." 	Your claim that 	the Union did not heed
your request that 	it ask for relevant conference memos 	from the
District or call appropriate witnesses does not constitute a breach
of duty.
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 additional 	facts which would correct 	the deficiencies
explained above, 	please 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 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 June 27, 	1997, 	I shall dismiss your charge. 	If you
have any questions, please call me at 	(916) 	322-3198, 	extension
354.
Sincerely,
RUSSELL NAYMARK
Board Agent