Los Angeles City and County Schools Employees Union, Local 99 (Morgan) (PERB 0645E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CLEMON MORGAN,
Charging 	Party,
v.
LOS ANGELES 	CITY AND 	COUNTY
SCHOOL EMPLOYEES UNION, 	LOCAL 99,
Respondent.
)
)
) 	Case 	No. 	LA-CO-392
PERB 	Decision No. 	645
December 	18, 	1987
)
)
)
)
)
)
Appearances; 	Clemon Morgan, 	on his own behalf.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on appeal by charging party of 	the
Board agent's 	dismissal, 	attached hereto, 	of 	its 	charge
alleging 	that 	the 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 99, 	violated section 3543.6(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).
We have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the Board
itself, 	insofar 	as 	the Board agent 	concludes 	that 	the
allegations 	in 	the 	instant 	charge 	fail 	to 	state a prima 	facie
violation 	of 	EERA.1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
)
______ )

herein are 	to the Government Code. 	Section 	3543.6 provides, 	in
pertinent part, 	as follows:
(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.
ORDER
The 	dismissal 	of 	the 	unfair 	practice 	charge 	in 	Case
No. LA-CE-392 	is hereby AFFIRMED.
Chairperson Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
Member 	Porter's 	dissent begins 	on page 	3.
22

Porter, 	Member, 	dissenting: 	This case 	involves 	the
respondent 	employee 	organization's 	representation 	of 	the
charging 	party 	in 	connection with 	proceedings 	before 	the
Los Angeles 	Community 	College 	District 	Personnel 	Commission
(Personnel Commission). 	Specifically, 	charging party alleges
that 	the 	respondent 	violated 	EERA by breaching 	its 	duty of 	fair
representation 	to him by 	the 	manner 	in which 	it 	represented
him 	at 	a 	dismissal hearing before 	a hearing officer 	of 	the
Personnel 	Commission 	and, 	further, 	by not 	appealing an 	adverse
decision of 	the hearing officer. 	The charge alleges, 	in
pertinent 	part:
The 	dismissal 	was 	appealed 	and 	a hearing was
held regarding 	the 	[dismissal] 	on June 30,
1986. 	I 	was 	represented by Cheryl
Washington of Local 99. 	Among 	the 	charges
against 	me was 	unauthorized 	absences 	and
tardiness, 	yet my representative, 	Cheryl
Washington 	failed 	to 	subpoena 	my 	daily 	time
sheets. 	I 	gave 	Cheryl Washington a list of
eight 	witnesses 	other 	than myself 	to be
called 	on my behalf. 	The 	only witness
Cheryl 	Washington 	called 	was 	myself. 	At
the close of trial my representative 	. 	. 	.
did 	not make 	a 	closing 	statement.
Cheryl 	Washington 	never 	challenged 	the
presentation 	of 	evidence by LACCD 	about
events 	that 	allegedly 	took 	place 	over 	three
years 	prior 	to 	the 	dismissal 	proceeding 	as
being remote, 	unreliable, 	and 	inadmissible.
Cheryl 	Washington 	of 	Local 	99 	refused 	to
appeal 	or 	object 	to 	the decision 	rendered
July 23, 	1986 or 	to order 	a transcript
although 	the 	findings 	of 	fact 	were 	not
consistent with the testimony at trial. 	. 	. 	.
3 3

Unlike my colleagues, 	I 	would 	find 	that 	charging party's
allegations 	on 	their 	face 	speak 	of 	arbitrary 	and/or bad 	faith
conduct beyond mere 	negligence 	and, 	accordingly, 	state 	a prima
facie 	case 	of breach 	of 	the 	duty of 	fair 	representation.
(Rocklin 	Teachers 	Professional 	Association 	(1980) 	PERB 	Decision
No. 	124, 	pp. 	6-8.) 	Rather 	than ordering the 	issuance of a
complaint, 	however, 	I would 	instead remand 	this 	case back 	to
the 	regional 	attorney 	inasmuch 	as 	there 	exists 	a 	threshold
question, 	recognized but 	not 	analyzed 	or 	resolved by 	the
regional 	attorney, 	as 	to whether 	the 	duty of 	fair
representation 	attached 	to 	the hearing 	at 	the 	Personnel
Commission.
It has been 	established 	under 	our 	precedent 	that 	since
the 	duty of 	fair 	representation 	stems 	from 	an 	exclusive
representative's 	status 	as 	the 	only 	employee 	organization
which may represent 	employees 	in 	their 	employment 	relations, 	it
follows 	that 	the 	duty attaches 	in 	representational 	matters 	such
as 	negotiations 	and 	grievance 	arbitration. 	(Service 	Employees
International Union Local 	99 	(Kimmet) 	(1979) 	PERB Decision
No. 	106.) 	It has 	further been stated 	that 	there 	is 	no duty of
fair 	representation 	owed 	to a 	unit 	member 	unless 	the 	exclusive
representative 	possesses 	the 	exclusive 	means by which 	an
employee 	can 	obtain 	a 	remedy. 	(San Francisco Classroom
Teachers Association, 	CTA/NEA 	(Chestangue) 	(1985) 	PERB Decision
No. 544.)
44

On 	this 	limited record, 	it 	is 	impossible to determine
whether 	the 	exclusive 	representative 	controlled 	charging
party's 	access 	to proceedings before 	the 	Personnel 	Commission.
Even 	if 	the 	Personnel 	Commission 	rules 	are 	silent 	on 	the
matter, 	Education Code 	section 4526011. 	provides 	that 	the
parties, 	through collective bargaining, 	can agree 	to rules
superseding those of 	the commission. 	Thus, 	there 	is 	an 	issue
presented 	as 	to whether 	or 	not 	the 	applicable 	collective
bargaining 	agreement 	contains 	a provision 	enabling 	only 	the
exclusive 	representative 	to have access, 	on behalf 	of 	charging
party, 	to proceedings before 	the Personnel 	Commission. 	I
would, 	therefore, 	remand the 	case back 	to 	the regional 	attorney
for 	further 	inquiry 	into 	this 	issue.
1Education 	Code section 45260(a) 	provides, 	in pertinent
part:
The commission shall prescribe, 	amend, 	and
interpret, 	subject to this article, 	such
rules 	as 	may be 	necessary 	to 	insure 	the
efficiency of 	the 	service 	and 	the 	selection
and retention of 	employees 	upon a 	* 	* 	*
basis 	of merit 	and 	fitness. 	The 	rules 	shall
not 	apply 	to bargaining unit 	members 	if 	the
subject 	matter 	is 	within 	the 	scope 	of
representation, 	as 	defined 	in Section 	3543.2
of 	the Government 	Code, 	and 	is 	included 	in a
negotiated 	agreement 	between 	the 	governing
board 	and 	that 	unit.
5

STATE OF CALIFORNIA 	• 	GEORGE DEUKMEJIAN.
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 19, 	1987
Mr. 	Clemon Morgan
RE: 	Clemon 	Morgan 	v. 	Los 	Angeles 	City and County School
Employees Union, 	Local 99, 	Case No. 	LA-CO-392
Dismissal 	of 	Charge
Dear Mr. 	Morgan:
You 	have 	filed 	a 	charge 	alleging 	that 	Respondent 	Los 	Angeles
City and County School Employees Union, 	Local 	99, 	(Local 	99)
violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA) 	by
failing 	to 	fairly 	represent you 	during 	a 	suspension
proceeding.
I 	indicated 	to 	you 	in my 	attached 	letter 	dated 	February 	4,
1987, 	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 	accordingly. 	You 	were 	further 	advised 	that 	unless 	you
amended 	the 	charge 	to 	state 	a prima 	facie 	case, 	or 	withdrew
them prior 	to February 18, 	1987, 	it would be 	dismissed.
I 	have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	the 	charge 	based 	on
the 	facts 	and 	reasons 	contained 	in 	my February 	4, 	1987 	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 	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

Mr. 	Clemon 	Morgan
February 	20
Page 	2
(5:00 p.m.) 	or 	sent by telegraph, 	certified or 	Express 	United
States 	mail 	postmarked no 	later 	than 	the 	last 	date 	set 	for
filing. 	Code 	of Civil 	Procedure 	section 	1013 	shall 	apply
(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 	copies 	of 	a 	statement 	in 	opposition within 	twenty
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 	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).

Mr. 	Clemon Morgan
February 	20
Page 3
Final 	Date
If 	no appeal 	is 	filed within 	the specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
JEFFREY 	SLOAN
General 	Counsel
By
g	Jor, 2/A. Lepn
Staff 	Attorney
Attachnent
cc: 	Mr. 	Jonathan Newson
7877d

STATS Of CALIFORNIA 	GEORGE 	DEUKMEJIAN,
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 4, 	1987
Mr. 	Clemon Morgan
RE: 	Clemon Morgan 	v. 	Los Angeles 	City and 	County 	School
Employees Union, 	Local 99, 	Case No. 	LA-CO-392
Dear Mr. Morgan:
You have 	filed 	a 	charge 	alleging 	that 	Respondent 	Los 	Angeles
City and County School 	Employees 	Union, 	Local 	99, 	(Local 	99)
violated 	the Educational Employment 	Relations Act 	(EERA) 	by
failing 	to 	fairly 	represent 	you 	during 	a 	suspension
proceeding.
You 	filed 	a 	charge 	containing 	the 	same 	essential 	allegations 	on
August 	15, 	1986. 	That 	charge was 	given 	the 	designation,
LA-CO-373. 	On November 	19, 	the undersigned sent, you a letter
explaining 	that 	the 	charge 	suffered 	certain 	infirmities.
Following an opportunity to 	amend or withdraw 	the 	charge, 	the
charge 	was 	dismissed on December 	2, 	1986.
My 	investigation 	revealed 	the 	following 	information 	concerning
the 	new 	charge.
During 	the 	years 	1981 	through 	1986, 	you were 	employed 	as a
custodian 	at 	the 	Los Angeles 	Community College 	District. 	In
January, 	1986, 	the 	District 	issued you a Notice 	of
Unsatisfactory Service. 	Thereafter, 	on April 	11, 	1986, 	the
District 	sent 	you 	a 	letter 	and 	a 	"Statement 	of 	Charges."
explaining 	that 	you 	were 	to be 	dismissed 	effective 	May 	8, 	1986
for 	"inefficiency, 	inattention 	to or 	dereliction 	of duty, 	and
frequent 	unexcused 	absence 	or 	tardiness," 	which 	allegedly
occurred 	during 	the preceding 	three 	and 	a half 	years. 	You
requested 	that 	Local 	99 help you 	in 	challenging 	the 	District's
action. 	You 	contacted 	Jonathan Newson, 	who 	referred 	your
request 	to Cheryl 	Washington.

Mr. 	Clemon Morgan
February 	4, 	1987
Page 	2
Ms. 	Washington assisted you 	in 	filing an appeal 	of 	the
dismissal 	action 	and 	represented 	you 	at 	a 	hearing 	which 	was
held on June 	30, 	1986 	before 	a hearing officer 	for 	the 	Los
Angeles 	Community College 	District 	Personnel 	Commission. 	You
were 	dissatisfied with 	her 	representation 	because: 	she 	failed
to 	subpoena your 	daily 	time 	sheets; 	she 	failed 	to 	call 	any 	of
the 	eight witnesses 	which 	you 	suggested; 	she failed 	to
challenge 	the presentation of evidence 	by the District, 	which
you 	assert was 	remote, 	unreliable 	and 	inadmissible; 	and she
refused 	to 	appeal 	the 	subsequent 	unfavorable 	decision 	on 	the
basis 	that 	her 	superiors 	at 	Local 	99 	had 	told her 	that 	nothing
further 	could be 	done.
ANALYSIS
First, 	Local 	99's 	duty 	to 	represent you 	art 	all 	in 	the hearing
before 	the 	Personnel 	Commission 	is 	questionable 	since 	a 	labor
organization's 	duty 	generally 	extends 	only 	to 	grievance
mechanisms 	under 	the 	collective 	bargaining 	agreement. 	San
Francisco Classroom Teachers 	Association, 	CTA/NEA 	(1985) 	PERB
Decision No. 544.
Assuming 	that 	the Local 	99 	owed you 	a 	duty of 	fair
representation, 	in 	order 	to 	show a 	breach 	of 	the 	duty 	of 	fair
representation, 	a 	charging party must 	demonstrate 	that 	the
employee 	organization's 	conduct 	in 	processing 	the 	grievance 	was
arbitrary, 	discriminatory or 	in bad 	faith. 	United 	Teachers 	of
Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258.
To 	show 	arbitrary 	conduct 	violative 	of 	the 	duty 	of 	fair
representation 	the 	charging party 	"must, 	at 	a minimum 	include
an 	assertion of 	facts 	from which 	it 	becomes 	apparent 	how 	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. 	Mere negligence or 	poor 	judgment 	in 	the
handling of 	a 	grievance 	does 	not 	constitute 	a 	breach 	of 	the
duty 	of 	fair 	representation. 	United 	Teachers 	of 	Los 	Angeles
(Collins), 	supra. 	Although 	the 	instant case 	involves
representation 	at 	a 	Personnel 	Commission hearing, 	the 	cases
involving 	grievance 	representation 	are 	applicable 	by 	analogy.

Mr. 	Clemon 	Morgan
February 	4, 	1987
Page 	3
The 	charge 	does 	not 	contain 	sufficient 	facts 	from which 	it 	may
be 	determined 	that 	Local 	99's 	conduct 	in 	representing 	you 	at
the 	hearing 	was 	arbitrary, 	discriminatory 	or 	in 	bad 	faith.
While 	the 	charge 	contains 	allegations 	that 	Washington 	may 	not
have 	utilized 	arguments 	and 	procedures 	available 	to 	a
knowledgeable legal 	professional, 	there are no 	facts 	which
indicate 	that 	she 	did 	so 	arbitrarily, 	out 	of 	a 	discriminatory
motive 	or 	in bad 	faith. 	Washington 	is not 	a 	lawyer. 	While 	it
may 	be 	argued 	that 	her 	representation 	of 	you 	was 	negligent 	or
an 	exercise 	of 	poor 	judgment 	(the 	facts 	do 	not 	necessarily
reach 	even 	this 	threshold), 	such 	conduct 	is 	not 	sufficient 	to
constitute 	a 	breach 	of 	the 	duty of 	fair 	representation. 	United
Teachers 	of Los Angeles, 	supra. 	Furthermore, 	it has 	been held
that 	the 	duty which 	a union 	representative 	owes 	to 	a 	member 	is
not 	one 	of 	attorney 	to 	client. 	Beverly 	Manor 	Convalescent
Center 	(1977) 	229 NLRB 692, 	n. 	2 	[95 LRRM 1156].
Washington's 	refusal 	to appeal 	the 	adverse 	decision, 	according
to 	the 	charge 	itself, 	was based on 	the 	instructions 	from her
superiors 	that 	"nothing 	else 	could 	be 	done." 	This 	does 	not
constitute 	arbitrary, 	discriminatory or 	bad 	faith 	conduct. 	As
the 	PERB 	Board 	pointed 	out 	in United 	Teachers 	of 	Los 	Angeles,
supra:
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)
For 	these 	reasons, 	the 	charge 	as presently written 	does 	not
state 	a 	prima 	facie 	case. 	If 	you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	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 	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

Mr. 	Clemon Morgan
February 	4, 	1987
Page 4
withdrawal 	from you before February 18, 	1987, 	I 	shall 	dismiss
your 	charge. 	If 	you 	have 	any questions 	on 	how 	to proceed,
please call me at 	(916) 	323-8015.
Sincerely,
Jorge A. 	Leon
Staff 	Attorney
7767d