United Teachers of Los Angeles (Collins) (PERB 0258E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
BEVERLY COLLINS,
Charging 	Party,
v.
UNITED TEACHERS 	OF 	LOS ANGELES,
Respondent.
Case No. 	LA-CO-179
PERB Decision No. 	258
November 	17, 	1982
Appearance;
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Beverly Collins, 	in propria persona.
Before Tovar, Jaeger, and Jensen, Members.
DECISION
JAEGER, 	Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by Beverly
Collins 	to 	the 	attached 	dismissal of 	her 	unfair 	practice 	charge
against 	the United Teachers 	of Los Angeles 	(UTLA). 	That charge
alleged 	that 	UTLA breached 	its 	duty of 	fair 	representation,
thereby violating sections 3544.9 and 3543.6(a), 	(b), 	(c) 	and
(d) 	of the Educational Employment Relations Act 	(Act).-'- 	The
1The 	Educational Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 et 	seq. 	All references 	are 	to 	the
Government 	Code 	unless 	otherwise 	specified.
Section 3544.9 provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative

administrative 	law 	judge 	found 	that 	the 	facts 	alleged 	by 	the
charging 	party 	did 	not 	constitute 	a 	prima 	facie 	violation 	of
the Act 	and 	dismissed 	the 	charge 	with 	leave 	to 	amend.
The Board 	has 	considered 	the 	facts 	alleged 	in 	the 	unfair
practice 	charge2 and 	charging 	party's 	brief on 	appeal 	and
affirms 	the 	administrative 	law 	judge's 	dismissal.
for 	the 	purpose 	of meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in the 	appropriate 	unit.
Section 	3543.6 provides:
It 	shall 	be 	unlawful 	for 	an employee
organization 	to:
(a) 	Cause or 	attempt 	to cause 	a public
school 	employer 	to violate Section 3543.5.
(b) 	Impose or 	threaten 	to 	impose 	reprisals
on 	employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	a public 	school 	employer 	of
any of 	the employees 	of which 	it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
2For 	purposes 	of considering 	whether 	an 	unfair 	practice
charge 	states 	a prima facie violation of 	the Act, 	all 	the
factual allegations 	of 	the 	charge 	are 	assumed 	to be 	true.
San Juan Unified School District 	(3/10/77) 	PERB Decision No. 	12,
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ORDER
Upon 	the 	foregoing Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by Beverly Collins 	against
the United 	Teachers 	of 	Los Angeles 	is 	DISMISSED with 	leave 	to
amend.
Members 	Tovar 	and Jensen 	concurred.
W
	3

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
BEVERLY COLLINS,
Charging Party,
v.
UNITED TEACHERS-LOS ANGELES,
Respondent.
Case No. LA-CO-179
NOTICE OF REFUSAL TO
ISSUE COMPLAINT AND
DISMISSAL OF CHARGE
WITH LEAVE TO AMEND
NOTICE IS HEREBY GIVEN that no complaint will be 	issued 	in
the 	above-captioned 	unfair practice charge and that 	it 	is
dismissed with leave to amend within twenty 	(20) 	calendar days
after service of 	this Notice of Dismissal.
This 	action 	is taken on 	the ground that the charge fails
to state 	a prima 	facie violation of 	the Educational Employment
Relations Act 	{hereafter EERA).1
BACKGROUND
On June 23, 1981, charging party, Beverly Collins, filed
an unfair practice charge against 	the United Teachers-Los
Angeles 	(hereafter UTLA), alleging a violation of
1Government 	Code section 3540 	et seq. 	All 	statutory
references herein are to the EERA unless otherwise noted.

sections 3543.6(a), 	(b), 	(c), 	(d),2 and section 3544.9.3
For 	purposes of 	considering whether 	the above-captioned
unfair practice charge states 	a prima facie violation of 	the
EERA, 	it will be assumed that all of the factual allegations
of 	the charge are true. 	San Juan Unified School District
(3/10/77) PERB Decision No. 12.
The 	factual allegations 	state as follows:
2Section 3543.6 	provides:
It shall be unlawful for an employee
organization to:
(a) 	Cause or attempt to cause a public
school employer 	to violate Section 3.543.5.
(b) 	Impose or 	threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, 	restrain, or coerce
employees 	because of 	their exercise of
rights guaranteed by this chapter.
(c) 	Refuse or 	fail to meet and negotiate 	in
good 	faith with a public school employer 	of
any of 	the employees of which 	it is 	the
exclusive representative.
(d) 	Refuse to participate 	in good faith 	in
the 	impasse procedure set 	forth in Article 9
(commencing with Section 3548) .
3Section 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.
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I am a teacher 	represented by UTLA. 	In
Aug. 	of 1979 I filed a grievance against a
principal of LA Unified School District.
The grievance proceeded 	thru the 	first 	three
steps. 	UTLA agreed to take it to
arbitration in December of 1979. 	In order
to get 	arbitrator Tom Roberts, UTLA waited
until May of 	1980 	to begin the arbitration
hearing.
The contract provides 	that 	the
arbitrator 	be available 	for a hearing within
sixty days. 	The contract provides that 	the
arbitrator 	shall 	render 	his decision within
30 	days after 	final submission of 	the case.
UTLA did not 	insist on this 	time line but
allows 	the 	arbitrator until June 1981 to
decide.
I 	asked UTLA to have 	the 	former
principal Mary Lou Lindsey present at the
arbitration hearing 	so 	she could 	testify as
to her previous conversations with me. 	UTLA
refused 	to cause her to be present. 	Mrs.
White was also asked to be present. 	This
was 	refused.
This are the 	factsd 	upon which I claim
UTLA 	(sic) 	its 	duty 	to
fairly 	represent me.
DISCUSSION
Duty of Fair 	Representation
Section 	3544.9 of 	the EERA provides 	that 	an exclusive
representative 	"shall 	fairly 	represent 	each and 	every employee
in the appropriate unit." 	The Public Employment Relations
Board 	(hereafter PERB) 	has 	interpreted this section to mean
that 	an 	exclusive representative clearly has a duty to
represent all employees 	in the unit fairly in meeting and
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negotiating, consulting on educational objectives, and
administering the written agreement.4
The conventional statement of 	the duty of 	fair
representation, 	enunciated by the United States Supreme
Court,5
6
has 	been 	recognized 	by 	the California Legislature by
adopting 	section 3544.9. 	The close similarity between section
3544.9 	and 	the NLRB created duty of 	fair 	representation 	is 	no
coincidence, 	in that the rationale that generated the EERA's
duty of 	fair 	representation provision "lies embedded 	in the
federal precedents under 	the NLRA."6 Therefore, 	it is
appropriate to consider federal precedent 	in determining
whether 	charging party has 	stated 	a prima facie violation of
the duty of 	fair 	representation.
7
4See 	Service Employees International Union, 	Local 99
(10/19/79) 	PERB Decision No. 106.
5In Steele 	v. 	Louisville 	and 	Nashville Railroad 	(1944)
323 U.S. 	19 2 [l5 LRRM 708], the Supreme Court decided that a
union must 	represent 	all 	bargaining unit members 	"without
hostile discrimination, fairly, 	impartially, and in good
faith." 	323 U.S. at 204. 	In Vaca v. Sipes 	(1967) 	386 U.S.
171 	[64 LRRM 2369], 	the court redefined the definition by
stating 	that 	"[a] 	breach of 	the 	statutory duty of 	fair
representation occurs only when a 	union's conduct toward 	a
member of 	the collective bargaining unit 	is 	arbitrary,
discriminatory or 	in bad faith." 	[Emphasis added.]
6See Redlands Teachers Association 	(9/25/78) 	PERB
Decision No. 72.
7Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d
608 	[87 	LRRM 2453].
4
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4

When a union engages 	in administration of a collective
agreement, 	questions of fair 	representation arise over 	its
processing of grievances. 	Whether 	a union has met 	its 	duty 	in
this 	context depends not upon the merits of the grievance but
rather 	upon 	the 	union's conduct 	in processing or 	failing 	to
process the grievance. 	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. 	See, e.g., Dill v. Greyhound Corp. 	(6th Cir.
1970) 	435 F.2d 231, cert, denied 	(1971) 	402 U.S. 952; Steinman
v. 	Spector Freight Systems Inc. 	(2d Cir. 	1973) 	476 F.2d 437
[83 LRRM 228]; Service Employees International Union, Local 99
(10/19/79) 	PERB Decision No. 106.
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. 	See, e.g., Gleason v. T.I.M.E.-DC, Inc.
(D. Colo. 1972) 84 LRRM 2107.
The 	specific 	allegations 	to 	be 	inferred from 	the charge
are 	that UTLA violated 	its 	duty 	to represent charging 	party 	in
good 	faith by: 	(1) 	waiting 	from August 	1979 	until May 1980
before starting 	the arbitration hearing, 	in order 	to get
Arbitrator Tom Roberts, 	(2) 	not 	insisting on a speedy decision
55

and 	allowing 	the 	arbitrator 	until June 	1981 	to 	decide, 	and 	(3)
refusing 	to call 	certain witnesses 	to testify at 	the
arbitration 	hearing.
In 	the 	absence of 	specific 	allegations of 	arbitrary,
discriminatory, 	or 	bad 	faith conduct, 	UTLA's 	behavior and
actions 	appear 	to 	be well 	within 	the 	discretion 	accorded 	the
exclusive 	representative 	in processing grievances. 	For 	the
above 	reasons, 	the 	unfair 	practice 	charge 	filed 	by Beverly
Collins 	does 	not 	state 	a 	prima 	facie 	violation of 	the 	duty of
fair 	representation.
Section 3543.6 (a), 	(b) , 	(c) and (d)
8 and
Section 	3544.9 	is 	enforceable 	under 	section 	3543.6(b)
since 	breaches 	of 	the 	duty of 	fair 	representation 	violate 	that
section. 	In Service Employees 	International Union, 	Local 99
(10/19/79) 	PERB 	Decision No. 	106, 	the Board set 	forth the
standard 	for 	finding a violation of 	section 	3543.6fb),
apply?.r.g 	the 	test in Carlsbad Unified 	School 	District
(1/30/79) 	PERB Decision No. 	89, 	to 	the protected 	rights of
employees 	provided 	for 	in 	sections 	3540
8Section 	3540 	recognizes:
[T]he 	right 	of 	public 	school 	employees 	to
join organizations 	of 	their 	own 	choice, 	to
be 	represented 	by 	such 	organizations 	in
their 	professional 	and 	employment
relationships 	with 	public 	school 	employers,
to 	select one 	employee 	organization 	as 	the
exclusive 	representative 	of 	the 	employees 	in
a n 	appropriate 	unit 	. . . .
66

3543.9 The EERA gives 	employees 	the 	right to join and
participate 	in the activities of employee organizations" 	(sec.
3540) 	and employee organizations 	are prevented from
interfering with employees 	because of 	the exercise of 	their
rights (sec. 3543.6(b)).
An assertion of 	a prima facie violation of 	section
3543.6(b) 	must allege conduct of an employee organization that
"tends to or 	does result 	in some harm to employee rights under
EERA." 	Service Employees International Union, Local 99
(supra, p. 	13) 	citing Carlsbad Unified School District 	(supra,
at p. 	10). 	Some connection must be shown between the employee
organization's conduct and 	the 	employee's 	rights 	under EERA.
In the present charge the allegations 	lack 	any reference
to Ms. Collins' 	exercise of a protected right and/or the
threat or 	imposition by UTLA of reprisals, discrimination,
interference, 	restraint or coercion against her 	for 	the
exercise of such 	rights. 	There 	is no claimed connection
between 	the charging party's 	exercise of 	rights 	and 	the UTLA's
conduct about which Ms. Collins complains. 	In addition,
charging party has failed 	to 	assert even a colorable claim of
9Section 	3543 	states:
Public school employees 	shall have the 	right
to form, join, and participate in the
activities of 	employee organizations of
their own choosing for 	the purpose of
representation on all matters of
employer-employee relations. . . .
77

a UTLA breach of 	the duty of 	fair 	representation 	as 	that duty
was 	interpreted 	by the Board 	in Service Employees
International Union, Local 99 	(supra, p. 8). 	Furthermore,
charging 	party has 	failed 	to 	assert how UTLA has 	violated 	the
other 	sections of 	3543.6 	that 	the 	charging party alleged 	in
her complaint (i.e., sections 3543.6(a), 	(c) and 	(d)).
Under 	PERB regulations 	a Board 	agent must dismiss 	the
charge 	if 	it 	is determined that the charge is insufficient to
establish a prima facie case. 	(PERB Regulation 32620(b)(4).)
For 	the above-stated 	reasons 	it 	is concluded 	that 	this
unfair practice charge fails 	to state a prima facie violation
of Government Code sections 3544.9 and 3543.6(a), 	( ), 	(c),
and 	(d) 	and, 	therefore, 	the charge must be dismissed with
leave 	to amend.
This 	dismissal with leave 	to amend 	is made pursuant 	to
PERB Regulation 32630(a). 	If 	the charging party chooses to
amend, 	the amended charge must 	be 	filed with 	the Los Angeles
Regional Office of the PERB within twenty 	(20) 	calendar days.
(PERB Regulation 32630(b).) 	Such amendment must 	be actually
received 	at the Los Angeles Regional Office of 	the PERB before
the close of business 	(5:00 p.m.) 	on July 27, 	1981 in order 	to
be 	timely filed. 	(PERB Regulation 32135.)
If 	the charging party chooses not to amend the charge, 	she
may obtain review of 	the dismissal by 	filing 	an appeal 	to the
Board 	itself 	within twenty 	(20) 	calendar 	days 	after 	service of
8

this Notice of Dismissal. 	(PERB Regulation 32630(b).) 	Such
appeal must 	be 	actually received 	by 	the Executive Assistant 	to
the Board before 	the close of business 	(5:00 p.m.) 	on July 27,
1981 	in order 	to be 	timely filed. 	(PERB Regulation 32135.)
Such 	appeal must 	be 	in writing, must be signed by the charging
party or 	its 	agent, 	and must contain the facts and arguments
upon which 	the appeal 	is 	based. 	(PERB Regulation 32630(b).)
The 	appeal must 	be accompanied 	by proof of service upon all
parties. 	(PERB 	Regulations 32135, 	32142 and 32630 (b).)
Dated: July 7, 1981 	WILLIAM P. 	SMITH
Chief Administrative Law Judge
By
W. 	Jean 	Thomas
Hearing 	Officer
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