United Teachers Los Angeles (Malin) (PERB 0870E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STANLEY
	"S"
	MALIN,
Charging
	Party,
v.
UNITED
	TEACHERS
	LOS
	ANGELES,
Respondent.
)
)
)	
Case
	No.
	LA-CO-545
PERB
	Decision
	No.
	870
March
	1,
	1991
)
)
)
)
)
)
)
Appearance:	
Stanley
	"S"
	Malin,
	on
	his
	own
	behalf.
Before 	Hesse,
	Chairperson;
	Shank and
	Camilli,
	Members.
DECISION
	AND
	ORDER
HESSE,
	Chairperson:
	This
	case
	is
	before 	the
	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	Stanley
11
8
11
	Malin 	(Malin)
	of
	the
	Board
	agent's 	dismissal, 	attached
hereto, 	of
	his
	charge
	that
	United 	Teachers
	Los
	Angeles
	(UTLA)
violated 	section
	3543.6(b) 	of 	the 	Educational
	Employment
Relations
	Act
	(EERA) . 1
We
	have 	reviewed
	the 	dismissal,
	and
finding
	it
	to
	be
	free 	of
	prejudicial 	error,
	adopt
	it
	as
	the
decision 	of 	the
	Board
	itself.
In 	his 	appeal, 	Malin,
	for 	the
	first
	time,
	raised 	facts
indicating 	that 	the 	actions 	taken 	against
	him
	occurred 	as
	a
result
	of 	his 	serving
	a
	subpoena
	in
	a
	related
	case
	and
	filing
	the
1EERA
	is 	codified 	at
	Government 	Code
	section 	3540,
	et 	seq.Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.

charge 	in 	this 	case. 	PERB 	Regulation 	32635 2 states, 	in 	pertinent
part:
(b) 	Unless 	good 	cause 	is 	shown, 	a 	charging
party 	may 	not 	present 	on 	appeal 	new 	charge
allegations 	or 	new 	supporting 	evidence.
In 	accordance 	with 	this 	regulation, 	the 	Board 	will 	not 	consider
those 	facts 	raised 	for 	the 	first 	time 	on 	appeal. 	The 	unfair
practice 	charge 	in 	case 	no. 	LA-CO-545 	is 	hereby 	DISMISSED 	WITHOUT
LEAVE 	TO AMEND.
Members 	Shank 	and 	Camilli 	join 	in 	this 	decision.
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
2

STATE
qF
CAJ~ORNIA
~	
,_,,
===============
PUBLIC
lMPLOYMENT
	RELATIONS 	BOARD
Los
Angeles Regional
Office
3530 Wilshire Boulevard, Suite 650
Los
Angeles, CA 	90010.2334
(213) 736-3127
September 	25,
	1990
Stanley
	"8"
	Malin
8658
	Nagle
	Avenue
Panorama
	C'ity,
	CA
	91402
DEUKMEJIAN, Governor	GEORGE
RE: 	DISMISSAL
	AND
	REFUSAL
	TO
	ISSUE 	COMPLAINT,
	Unfair
	Practice
Charge
	No.
	LA-CO-545,
	Stanley
	"S"
	Malin 	v. 	United
	Teachers
Los
	Angeles
Dear
	Mr.
	Malin:
I
	indicated 	to
	you
	in
	my
	attached
	letter
	dated
	September
	19,
1990,
	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
	September 	27,
	1990,
	the
	charge
	would 	be
	dismissed.
In
	a
	telephone 	conversation
	on
	September 	25, 	1990, 	you
	informed
me
	that
	you
	did 	not 	intend 	to
	amend
	or
	withdraw
	the 	charge.
	I
	am
therefore
	dismissing 	the
	charge 	based
	on
	the 	facts
	and
	reasonscontained
	in
	my
	September
	19
	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
	fivecopies 	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 	CivilProcedure 	section
	1013
	shall 	apply.
	The
	Board's 	address
	is:
Public
	Employment
	Relations 	Board1031
	18th 	StreetSacramento,
	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
	and
	Refusal
to
	Issue
	Complaint
LA-CO-545
September
	25,
	1990
Page
	2
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	
11
served
11	
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
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,
JOHN
	W.
	SPITTLER
General 	Counsel
By .Thomas
	J.
	Al).en-
Regional 	Attorney
Attachment
cc: 	Leo 	Geffner

;TATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Las Angeles, CA 	90010-233.4
(213) 736-3127
September 	19, 	1990
Stanley 	"S" 	Malin
8658 	Nagle 	Avenue
Panorama 	City, 	CA 	91402
GEORGE DEUKMEJIAN, Go.,..mo,
RE: 	WARNING 	LETTER, 	Unfair 	Practice 	Charge 	No. 	LA-C0-545,
Stanley 	"S" 	Malin 	v. 	United 	Teachers 	Los 	Angeles
Dear 	Mr. 	Malin:
In 	the 	above-referenced 	charge, 	it 	is 	alleged 	that 	United
Teachers 	Los 	Angeles 	(UTLA) 	interfered 	with 	the 	right 	of 	Stanley
"S" 	Malin 	(Malin) 	to 	run 	for 	office 	within 	UTLA. 	This 	conduct 	is
alleged 	to 	violate 	Government 	Code 	section 	3543.6 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA).
My 	investigation 	of 	this 	charge 	revealed 	the 	following 	facts.
UTLA 	is 	the 	exclusive 	representative 	of 	a 	bargaining 	unit 	of
certificated 	employees 	of 	the 	Los 	Angeles 	Unified 	School
District. 	Malin 	is 	an 	employee 	in 	the 	bargaining 	unit 	and 	a
member 	of 	UTLA. 	In 	or 	around 	March, 	1990, 	Malin was 	one 	of 	four
members 	elected 	to 	UTLA 1 s 	Valley 	East 	Area 	Board 	of 	Directors.
Three 	of 	the 	four 	filed 	to 	run 	for 	Valley 	East 	Area 	Chairperson
(Area 	Chairperson) 	in 	an 	election 	scheduled 	for 	April 	16, 	1990:
Malin, 	Lila 	Dawson-Weber 	(Dawson-Weber) 	and 	Loretta 	Toggenburger
(Toggenburger). 	Dawson-Weber 	was 	the 	incumbent 	Area 	Chairperson.
UTLA's 	Election 	rules 	for 	1990 	provide 	in 	relevant 	portions 	as
follows:
Section 	3. 	COUNTING
(c.) 	CONTESTED 	ELECTIONS:
Contested 	elections 	shall 	be 	decided 	by
a 	simple 	majority 	of 	50% 	+ 	1 	ballots
cast, 	except 	for 	the 	election 	of 	Area
Chairpersoni 	in which 	case, 	if 	more 	than
two 	Board 	of 	Directors-elect 	run 	for
position 	of 	Area 	Chairperson, 	only 	a
plurality 	shall 	be 	necessary 	for
election.

Warning
	Letter
LA-C0-545
September
	19,
	1990
Page
	2
Section
	6.
	CAMPAIGN
	RULES
(f.)	
UTLA
	Committees
	shall
	not 	endorse
	or
discuss
	any
	candidacy
	during
	the
election
	process.
(h.)	
Candidate
	literature
	shall
	not 	appear
	to
be 	an
	official
	UTLA
	publication.
(j.)	
The
	logo 	of
	UTLA
	or
	any
	UTLA
	affiliate
shall
	not
	be
	used
	on/with
	any 	campaign
materials.
(o.)	
Candidate 	Statements
	shall
	be
	published
in
	the
	United 	Teacher
	at 	least
	two
	(2)
weeks
	prior
	to 	the 	appropriate 	election.
Candidates
	who
	wish
	to
	submit
	articles
for 	the 	election
	supplement
	of 	the
United 	Teacher
	must
	submit
	articles
	to
the 	Election
	Committee
	in 	duplicate
	on
specified
	forms,
	retaining
	a
	third
	copy
for 	personal
	files.
Galleys
	will
	be
	proofread
	by
	the
candidate
	and
	signed
	off 	to
	make
	sure
that
	the
	article
	agrees 	verbatim 	with
the 	original
	submitted
	by
	each
candidate.
	A
	specific
	time
	will
	be
	set
for 	candidates 	to
	check
	the 	galley
sheets 	of
	their 	election 	statements 	for
the
	United 	Teacher.
Section
	7.
	CHALLENGE 	PROCEDURE
(a.)	
The
	Election
	Committee
	will 	not 	consider
appeals 	filed 	with
	it
	more
	than 	five
working 	days
	after
	each 	round 	of 	the
election 	in 	question 	is 	terminated.
Subsequent 	levels 	for 	appeal 	must 	be
filed 	in 	the 	appropriate 	fashion 	within

Warning
	Letter
LA-C0-545
September
	19,
	1990
Page
	3
five
	working 	days
	of
	a
	decision
	being
made
	at
	the
	preceding
	level.
(b.)	
If
	a
	candidate
	charges
	that
	another
candidate
	has
	violated
	these
	election
rules,
	the
	following
	procedure
	shall
	be
followed:
Step
	1.
	Election
	Committee
	Hearing
Both
	parties
	and/or
	representative
	of
each
	shall,
appear 	before
	meeting
	of 	the
Election
	Committee.
The
	Committee
	may:
1.	
Refuse
	to 	hear 	the 	challenge
	on
	the
	grounds
that
	the 	challenge
	as
	presented
	does
	not
involve 	the
	violation
	of
	any
	election 	rule.
2.	
Uphold
	the 	challenge
	and
	disqualify 	the
challenged
	party
	on
	the
	grounds
	that 	there
has 	been
	a
	violation
	of
	an
	election
	rule
	by
the 	challenged 	party.
3.	
Deny
	the 	challenge
	on
	the
	grounds
	that 	there
has 	not
	been
	a
	violation
	of
	any
	election 	rule
by
	the 	challenged 	party.
The
	decision 	of 	the 	Election
	Committee
	may
	be
appealed
	to
	a
	qualified
	independent
arbitrator
	hired
	by
	UTLA.
	Such 	an
	appeal
should
	be
	submitted 	in 	writing 	to 	the
election
	Committee which
	shall
	facilitate
	the
appeal. 	In
	any 	case
	where
	a
	candidate 	asks
for 	arbitration,
	the 	candidate 	asking
	for
arbitration 	shall
	pay
	a
	fee 	of 	$150.00
	to
UTLA
	which
	will
	be 	refunded
	if
	the
	arbitrator
finds 	in 	the 	candidate's 	favor. 	Arbitrators
shall
	be
	selected
	from 	a
	list
	as 	submitted
	by
the 	Federal 	Mediation 	Service 	with 	the
ability
	of 	striking 	alternate
	names.
The 	same
	Arbitrator 	if 	possible 	is 	to 	preside
for 	all 	challenges.

Warning
	Letter
LA-C0-545
September
	19,
	1990
Page	
4
The
	decision
	of
	the
	independent
	arbitrator
shall
	be
	final
	in
	all
	cases.
(c)
	Procedural
	stipulations:
2.	
Candidates 	involved
	in
	any
	challenge
	shall
	be
provided
	5
	working 	days
	advance
	notice
	of
proceedings
	and
	procedures.
4.	
Any
	challenger 	or 	challengee
	will
	be
	invited
to
	be
	present
	at
	any
	hearing 	before
	the
Election
	Committee,
	or
	Arbiter
	with
	5
	working
days 	advance
	notice.
Malin
	filed
	to
	run
	for
	Area
	Chairperson under
	the
	name
	"Stanley
'S'
	Malin,"
	which 	he
	uses 	formally. 	Informally,
	he
	uses
	"Stan."
Before
	the
	election
	on
	April
	16, 	1990,
	candidate 	statements
appeared
	in
	United 	Teacher,
	a
	UTLA
	publication. 	Malin's
statement
	was
	headed 	"Statement 	of 	Stan 	Malin.''
	Malin
	did 	not
write
	this
	heading,
	and 	he
	did 	not 	proofread
	it,
	because 	he
	was
out 	of
	town.
	The
	statement,
	which 	he
	did
	write,
	~egan,
	"My 	name
is
	Stanley	
1 S 1	
Malin,"
	and 	ended,
	"Thanks
	for
	your
	support.
Stan."
	Dawson-Weber's
	statement
	identified 	her, 	in
	both
	the
heading
	and
	the
	text,
	as
	"Lila
	Dawson-Weber."
On
	the
	ballot,
	Malin
	was
	listed
	as 	"Stan Malin" 	and
	Dawson-Weber
was
	listed
	as 	''Lila
	Weber." 	Malin
	distributed
	copies 	of
	the
ballot
	with
	his 	suggestions
	marked,
	including
	a
	suggested 	vote
for 	"Stan 	Malin."
	The
	ballots
	were 	counted
	on
	or
	about
	April
	17,
1990. 	Malin 	got
	638
	votes;
	Dawson-Weber
	(on
	the
	ballot
	as 	"Lila
Weber")
	got
	583
	votes;
	and 	Toggenburger
	got
	200
	votes.
The
	UTLA
	Election
	Committee 	informed 	Malin
	that
	Toggenburger 	had
withdrawn
	from
	the 	election 	before 	the 	votes
	had 	been 	counted.
The 	Committee
	also 	told
	Malin
	that 	there
	would 	be
	a
	runoff
election,
	because
	no 	one
	received
	a
	majority.
	Malin
	pointed 	out
that
	under 	Section
	3.
(c.) 	of 	the 	Election 	Rules 	only
	a
	plurality
is
	necessary
	if
	there 	are
	more
	than
	two
	candidates. 	Malin 	also
pointed 	out 	that 	if
	the 	votes 	for 	Toggenburger 	were
	invalidated
by
	her 	withdrawal 	he 	had 	received
	a
	majority 	of 	the 	valid 	votes.
The
	Election
	Committee 	promised 	to 	get 	back 	to
	him.
The
	Election 	Committee
	later
	informed 	Malin 	that
	Dawson-Weber 	had
challenged 	the 	election 	because 	she 	had 	been 	listed 	on 	the 	ballot
merely 	as 	"Lila 	Dawson." 	The 	Committee 	upheld 	the 	challenge 	and

Warning
	Letter
LA-CO-545
September
	19,
	1990
Page
	5
scheduled
	a 	new
	election.
	Two
	members
	of
	the
	Committee
	told
Malin
	that
	there
	had
	not
	been
	a
	formal
	hearing
	on
	the 	challenge.
Malin
	was
	not 	given
	advance
	notice
	of
	any
	proceeding
	or
	invited
to 	attend.
The
	Election
	Committee
	informed
	Malin
	that 	ballots
	for 	the
	second
election
	would 	be
	sent 	out
	on
	April
	30,
	1990.
	Malin
	sent 	out
campaign
	materials
	on
	April
	27,
	1990,
	to
	arrive
	just
	before 	the
ballots.
	The
	ballots
	were
	not
	sent 	out,
	however,
	until
	May
	3,
1990.
	Dawson-Weber
	sent
	out 	her
	campaign
	materials
	on
	May
	2,
1990.
	The
	Election
	Committee
	later
	admitted
	that
	it
	had
	told
Dawson-Weber
	about
	the 	delay
	in
	sending
	out
	ballots
	because 	she
had
	called
	the
	Committee.
	Malin
	felt
	he 	had
	no
	reason
	to
	call,
and 	he
	was
	unaware
	of
	the
	delay.
	Dawson-Weber
1 s
	campaign
materials
	included
	endorsements
	from
	UTLA
	President
	Wayne
	Johnson
and
	President-Elect
	Helen
	Bernstein,
	who
	were
	identified
	as
	such
in 	the 	materials.
The
	return 	date 	printed
	on
	the
	ballots
	was
	May
	4,
	1990,
	but 	the
Election
	Committee
	extended
	the 	deadline
	three
	days,
	without
telling
	Malin.
	The
	Committee
	later
	admitted
	that
	it
	had
	told
Dawson-Weber
	about
	the 	extension
	because 	she
	had
	called.
	Malin
felt
	he 	had
	no
	reason
	to
	call,
	and 	he
	was
	unaware
	of 	the
extension.
	Malin 	says
	that
	if
	he 	had
	known
	about
	the 	extension
he 	would 	have
	made
	additional
	phone
	calls
	and
	gathered
	more
votes. 	Declarant 	Steve 	Gregory
	Fox
	says
	he 	would 	have
	cast 	his
vote
	had 	he
	known
	about
	the 	extension. 	Declarant
	Roberta
	Fine
says 	she
	knows 	some
	(unidentified)
	people
	who
	did 	not 	vote
because 	they
	were 	unaware
	of 	the 	extension. 	In 	the
	second
election,
	Dawson-Weber
	got 	approximately
	520
	votes,
	and
	Malin 	got
approximately
	460
	votes.
On 	May
	21, 	1990, 	Malin
	sent 	the 	following
	letter
	to 	the 	Election
Committee:
1.
	I 	won
	the
	first
	election.
	My
	opponent
challanged 	[sic] 	the
	results,
	I 	am
	told,
	on
the
	grounds
	that 	her
	name
	wasn't
	on
	the
ballot 	correctly.
	I 	was
	informed 	by 	two
members
	of 	the 	election
	committee
	that
	a
formal 	hearing
	was
	never 	held, 	but
	a
	second
election
	was
	ordered
	anyway. 	This
	is,
	I
believe 	illegal
	and 	the 	results 	of 	the
	first
election
	must 	stand.
	How
	can
	a
	second
election 	take 	place 	if
	no 	challange 	has 	been
heard?

Warning
	Letter
LA-CO-545
September
	19,
	1990
Page
	6
2.
	The
	ballots
	were
	to
	be
	mailed
	on
	the
30th.
	of
	April.
	I
	mailed
	my
	material
	on
Friday
	April
	27
	so
	that
	it
	would
	arrive
	a
	day
before
	or
	with
	the
	ballots.
	The
	election
ballots
	didn't
	arrive
	until
	May
	5,
	post
marked
	May
	3.
	I
	was
	never
	informed
	of 	the
delay
	in
	mailing
	the
	ballots.
	If
	I
	had 	been,
I
	would
	have
	waited
	to
	send
	out
	my
	material.
My
	opponent's
	materials
	were
	post
	marked
	May
2, 	mine
	April
	27. 	Did
	she
	know
	of 	the
	delay?
3.
	Several
	people
	came
	to
	me
	at
	the 	area
meeting,
	May
	6, 	1990, 	and
	asked
	me
	about
	the
results
	of 	the
	election,
	as
	the
	ballots
	were
to
	be
	counted
	on
	Monday 	May
	4, 	and
	I
	told
them
	that
	there
	had
	been
	a
	delay.
	Another
person 	asked
	why
	they
	hadn't
	been 	informed 	of
the 	delay,
	stating 	that
	by
	the
	time
	he 	had
gotten
	his 	ballot,
	and
	gotten
	around
	to
mailing
	it
	back he
	noticed
	that
	the 	return
date
	on
	the
	ballot
	was
	passed
	so 	he
	didn't
bother
	to
	send
	it
	in.
	He
	said
	that
	if
	he 	had
known
	of 	the 	three
	day
	extension
	he
	could
have
	mailed
	it
	in
	on
	time.
	He,
	and
	who 	knows
how many
	others,
	had
	been
	disinfranchised
(sic]
	by
	the 	delay.
	(Name
	on
	request)
4.
	My
	forth 	(sic]
	and
	final
	reason
	for
challanging 	the
	election
	is
	the
	same
	as
	my
opponent
1
s.
	My
	name
	on
	the
	intent 	to
	run
form
	is
	Stanley
	"S"
	Malin.
	The
	ballot
	said
Stan 	Malin.
	If
	her 	challange
	was
	upheld
	for
this
	reason, 	without
	a
	hearing,
	I
	should 	be
given 	the
	same
	consideration.
The 	Committee 	met
	with 	Malin, 	and 	on 	June 	5, 	1990,
	it
	responded
to
	him 	by
	letter
	as 	follows:
The
	Election
	Committee 	met
	in 	Executive
Session
	after
	you
	left
	and
	carefully
	reviewed
all
	the 	facts 	concerning 	your 	challenge.
	As
you
	recall,
	during 	the 	meeting
	it
	was
	agreed
to 	divide 	your 	challenge 	into 	four 	(4)
different 	issues.
	Each 	was
	then 	presented
and 	discussed 	separately. 	They 	were 	as
follows:

Warning
	Letter
LA-C0-545
September 	19,
	1990
Page
	7
1)	
Issue
	- 	You
	stated
	the 	Election
Committee
	did 	not
	have
	a
	hearing
	to
	hear
Lila
	Dawson-Weber
1 s
	challenge
	and
therefore,
	we
	acted
	illegally
	and
	the
results
	of 	the
	first
	election
	should
stand.
Decision:
	It
	was
	agreed
	that
	indeed
	the
Election
	Committee
	did
	meet 	and
	decided
	that
Lila
	Dawson-Weber
	had
	a
	legitimate
	challenge
to 	the 	Election
	Committee.
	We
	failed
	to
print
	her
	name
	on
	the
	ballot
	as
	it
	was
	both
listed
	on
	her
	Intent
	To 	Run
	Form
	and
	as
	she
has 	been
	commonly
	known
	in
	UTLA.
2)	
Issue:
	Not
	everyone
	was
	aware
	of 	the
"Delay
	of
	Ballots.
Decision:
	The
	Committee
	unanimously
	agreed
that
	we
	did 	not
	have
	any
	control
	over
	the
mailing 	of
	the
	ballots.
	Those
	receiving
ballots 	early
	had
	three 	extra
	days
	in
	which
to
	submit
	their 	ballots.
	The
	Election
Company
	told
	us
	that
	the
	ballots
	were
	all
mailed
	on
	the
	same
	day.
	Some
	went
	out
	on
Wednesday,
	some
	on 	Thursday 	and
	some
	on
Friday.
	The
	three
	day
	delay
	we
	felt
	was
	the
fairest
	way
	to
	be
	sure
	everyone 	had
	the
	same
number
	of
	days
	to 	return
	their 	ballots.
3)	
Issue:
	Candidate 	not 	being 	informed
about
	the 	delay
	in 	the 	mailing 	of 	ballots'.
Decision:
	The 	Committee
	decided
	that 	the
majority 	of 	candidates
	were 	informed 	and
	that
it
	is
	the 	responsibility 	of 	each 	candidate 	to
keep
	abreast 	of
	all
	changes. 	Further,
	we
have
	reason 	to 	believe 	that
	you 	were 	aware 	of
the 	delay.
4)	
Issue:
	Your 	name 	was
	incorrect
	on
	the
Ballot
Decision:
	We
	unanimously 	agreed 	that 	your
name
	recognition 	within
	UTLA
	is 	"Stan 	Malin"
and 	not 	"Stanley 	S. 	Malin" 	as 	you 	claim 	on
your 	challenge. 	On 	the 	first 	round 	of

Warning
	Letter
LA-C0-545
September
	19,
	1990
Page
	8
ballots
	your
	name
	was
	listed
	as 	"Stan
	Malin"
and
	you
	did
	not
	challenge
	at 	that
	time. 	This
indicated
	that
	the
	spelling
	of
	your
	name
	was
not
	an
	important
	issue 	to
	you.
Conclusion:
	In
	summary,
	the 	Election
Committee
	unanimously
	agreed
	to
	dismiss
	your
challenge.
Malin
	requested
	arbitration
	of
	his
	challenge.
	On
	June 	21, 	1990,
he
	also
	requested
	from
	the 	Election
	Committee
	copies 	of
	Dawson-
Weber's
	"Intent
	To 	Run
	Form,"
	her 	challenge
	to
	the
	first
election,
	the
	Committee's
	findings
	on
	that
	challenge,
	and
	Dawson-
Weber's
	financial 	reports 	to 	the
	Committee.
	He
	further 	requested
a
	statement 	of 	the 	reason
	he
	was
	not
	invited 	to 	the
	proceeding
	on
Dawson-Weber
1 s
	challenge.
	Malin
	did 	not 	receive
	a
	response
	to
his 	request 	for
	information.
On
	July
	1, 	1990,
	Dawson-Weber
	began
	her
	new
	two-year 	term
	as
	Area
Chairperson.
	On
	August
	31,
	1990, 	Malin
	and
	Dawson-Weber
	selected
Walter
	Kaufman
	as
	arbitrator
	of
	Malin
1 s
	challenge,
	and 	an
arbitration
	hearing
	was
	held
	on
	September
	18, 	1990.
	A
decision
is
	expected
	in
	about
	two
	and
	a
	half
	months.
Malin 	does
	not
	know why
	the 	Election
	Committee
	may
	have
disfavored
	him 	and
	favored
	Dawson-Weber. 	His
	guess
	would
	be
	that
it
	is
	because
	Dawson-Weber's
	husband 	has 	been
	a
	close
	friend
	and
advisor 	of
	Wayne
	Johnson,
	who
	was
	UTLA
	President
	at
	the 	time 	of
the 	election.
Based 	on
	the 	facts 	stated
	above,
	the
	charge 	does
	not
	state
	a
prima
	facie 	violation
	of 	the
	EERA
	within 	the
	jurisdiction 	of 	the
Public
	Employment
	Relations
	Board
	(PERB),
	for 	the 	reasons
	that
follow.
The
	present
	charge
	essentially 	challenges
	UTLA's
	internal
election
	procedures. 	Generally,
	PERB
	has 	not 	read 	the
	EERA
	as
authorizing
	PERB
	to 	intervene 	in 	internal
	union
	affairs. 	In
Service
	Employees
	International
	Union. 	Local
	99
	(Kimmett) 	(1979)
PERB
	Decision
	No.
	106,
	at
	pp. 	15-17,
	PERB
	explained 	as 	follows:
The 	EERA
	gives 	employees 	the 	right 	to 	"join
and
	participate 	in 	the 	activities 	of 	employee
organizations" 	(sec. 	3543) 	and 	employee
organizations 	are 	prevented 	from
	interfering
with 	employees 	because 	of 	the 	exercise 	of
their 	rights 	(sec. 	3543.6(b)). 	Read 	broadly,

Warning
	Letter
LA-CO-545
September
	19,
	1990
Page
	9
these 	sections
	could
	be
	construed
	as
prohibiting
	any
	employee
	organization
	conduct
which 	would
	prevent 	or
	limit
	employee's
participation
	in
	any
	of
	its
	activities.
	The
internal
	organization
	structure
	could
	be
scrutinized
	as 	could
	the
	conduct
	of
	elections
for
	union
	officers
	to
	ensure
	conformance
	with
an
	idealized 	participatory
	standard.
	However
laudable
	such
	a
	result
	might
	be,
	the
	Board
finds
	such
	intervention 	in
	union
	affairs
	to
be 	beyond
	the
	legislative 	intent
	in
	enacting
the
	EERA.
	There
	is
	nothing
	in
	the
	EERA
comparable
	to
	the
	Labor-Management
	Reporting
and
	Disclosure
	Act
	of
	1959,
	which
	regulates
certain 	internal
	conduct
	of 	unions
	operating
in
	the
	private 	sector.
	The
	EERA
	does
	not
describe 	the
	internal
	workings
	or
	structure
of
	employee
	organizations
	nor 	does
	it
	define
the
	internal 	rights
	of
	organization
	members.
We
	cannot
	believe 	that
	by
	the
	use
	of 	the
phrase
	"participate 	in 	the
	activities
	of
employee
	organizations
	.
	for 	the
	purpose
of
	representation
	on
	all
	matters 	of
	employer-
employee
	relations" 	in 	section
	3543,
	the
Legislature
	intended
	this
	Board
	to 	create
	a
regulatory
	set
	of 	standards 	governing
	the
solely 	internal 	relationship
	between
	a
	union
and
	its
	members.
	Rather,
	we
	believe
	that
	the
Legislature
	intended
	in 	the
	EERA
	to 	grant
	and
protect
	employees'
	rights 	to
	be
	represented
in
	their
	employment
	relations
	by
	freely
chosen 	employee
	organizations. 	[Footnotes
omitted.]
At
	the
	same
	time,
	PERB
	recognized
	an
	exception 	to 	the 	general
principle
	of 	non-intervention,
	where
	the 	internal 	activities
	of
an 	employee
	organization
	have 	such
	a
	substantial
	impact 	on
employees'
	relationship
	with
	their
	employer 	as 	to 	give
	rise 	to
the 	duty 	of
	fair 	representation.
PERB
	has 	since 	recognized
	two
	other 	exceptions 	to 	the 	principle
of 	non-intervention. 	In 	California 	School 	Employees
	Association
and
	its
	Shasta 	College 	Chapter 	#381
	(Parisot)
	(1983) 	PERB
Decision
	No. 	280,
	at 	p. 	11, 	PERB
	recognized
	its 	"jurisdictional
power 	to 	determine 	whether 	an 	employee 	organization 	has 	exceeded
its 	authority 	under 	subsection 	3543.l(a) 	to 	dismiss 	or 	otherwise

Warning
	Letter
LA-C0-545
September
	19,
	1990
Page
	10
discipline
	its
	members."
	That
	subsection 	of 	the
	EERA
	provides 	in
relevant 	part
	as 	follows:
Employee
	organizations
	may
	establish
reasonable
	restrictions
	regarding
	who 	may
join
	and
	may
	make
	reasonable 	provisions
	for
the 	dismissal
	of
	individuals
	from
	membership.
Thus,
	in
	questions 	of
	membership,
	PERB
	will
	examine
	the
reasonableness 	of
	restrictions
	or 	dismissals.
	See
	also
	Union
	of
American
	Physicians
	and
	Dentists
	(Stewart)
	(1985)
	PERB
	Decision
No.
	539-S 	and
	California
	Correctional
	Peace
	Officers 	Association
(Colman) 	(1989)
	PERB
	Decision
	No.
	755-S.
Similarly, 	in 	California 	State
	Employees'
	Association 	(O'Connell)
(1989)
	PERB
	Decision
	No.
	753-H,
	at
	p. 	9,
	PERB
	explicitly
recognized
	its
	statutory 	authority 	to 	inquire 	into 	the
	internal
activities
	of
	an 	employee
	organization
	when
	it
	is
	alleged
	that
the 	organization
	has
	imposed
	reprisals
	on
	employees
	because
	of
their
	exercise 	of
	protected 	rights.
	This
	decision
	was
	based
	on
the
	statutory 	authority
	of
	Government
	Code
	section 	3571.l(b) 	of
the
	Higher 	Education
	Employer-Employee
	Act;
	the
	same
	statutory
language 	appears
	in
	Government
	Code
	section
	3543.6(b)
	of
	the
EERA.
	See
	also 	California
	Association 	of
	Psychiatric 	Technicians
(Long) 	(1989)
	PERB
	Decision
	No.
	745-S 	and
	California
	School
Employees
	Association 	(Petrich)
	(1989)
	PERB
	Decision
	No.
	767.
The
	present
	charge 	does
	not
	fit
	into
	any
	of 	these 	three
recognized 	exceptions
	to
	the 	principle
	of 	non-intervention.
There
	is
	no
	alleged 	or 	apparent
	impact
	on
	Malin's 	(or
	any
employee's)
	relationship
	with 	the
	employer 	so 	as
	to 	give
	rise
	to
the 	duty 	of
	fair
	representation. 	(In
	Kimmett,
	supra,
	PERB
specifically
	held
	that
	an
	election 	to 	select
	a
	representative 	to
a
	negotiating
	team 	was
	not 	subject 	to 	the 	duty.)
	Nor
	does
	the
charge 	involve
	a
	question 	about 	Malin's
	membership
	in
	UTLA;
apparently,
	he 	remains
	a 	member
	in
	good
	standing. 	Finally, 	the
charge 	does 	not 	allege 	that
	Malin
	is
	suffering
	any
	reprisal
because 	of
	any
	exercise 	of 	protected 	rights;
	on
	the 	contrary, 	his
best
	guess
	is 	that
	he 	has 	been 	disfavored 	only 	because 	of 	his
opponent
1 s husband
1 s
	relationship 	with 	the
	UTLA
	President.
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

Warning
	Letter
LA-CO-545
September
	19,
	1990
Page
	11
Charge.
	contain
	ail
	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
not
	receive
	an
	amended
	charge
	or
	withdrawal
	from 	you
	before
September
	27, 	1990,
	I
	shall
	dismiss
	your
	charge.
	If
	you
	have
	any
questions, 	please
	call
	me
	at
	(213)
	736-3127.
Sincerely,
,'1
V
Thomas
	J.
	AllenRegional 	Attorney
TJA:rdw