United Teachers-Los Angeles (Reilly) (PERB 1276E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

WILLIAM JOHN REILLY,

Charging Party, Case No. LA-CO-751

Vv. PERB Decision No. 1276

UNITED TEACHERS LOS ANGELES, July 23, 1998

Respondent.

Appearances: William John Reilly, on his own behalf; Geffner &
Bush by Nathan Kowalski, Attorney, for United Teachers
Los Angeles.
Before Johnson, Dyer and Amador, Members.
DECISTON

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal of a Board agent's dismissal
(attached) of William John Reilly's (Reilly) unfair practice
charge. Reilly's charge alleged that the United Teachers
Los Angeles (UTLA) breached the duty of fair representation

mandated by section 3544.9 of the Educational Employment

Relations Act (EERA) and thereby violated EERA section 3543.6(b)’*

‘EERA is codified at Government Code section 3540 et seq,
EERA 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.

EERA section 3543.6 provides, in relevant part:

It shall be unlawful for an employee
organization to:

when 	it 	closed one 	of Reilly's 	grievances 	without 	his 	permission.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	Reilly's appeal and UTLA's 	response thereto. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	from
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-751 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Amador 	joined 	in 	this 	Decision.
(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.
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STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 22, 1998
William John Reilly
Re: 	William John Reillv v. 	United Teachers Los Angeles
Unfair Practice charge No. 	LA-CO-751
DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
Dear Mr. Reilly:
In this charge filed October 14, 	1997, you allege that United
Teachers Los Angeles 	(UTLA) 	closed one of your grievance cases
against your will 	in violation of Government Code section 3543.6
of the Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated May 14, 	1998,
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 May
21, 	1998, 	the charge would be dismissed.
You called me on May 19, 	1998 and we discussed, 	in part, 	your
options as described at the end of my letter dated May 14, 	1998.
As you did not have anything to add, 	you stated that you were not
going to amend or withdraw the 	charge. 	I then advised you that 	I
would issue a dismissal of your charge which includes 	information
on your right to appeal. 	I have received nothing further as of
this date, 	and therefore, 	I am dismissing the charge based on the
facts and reasons contained above, and in my May 14, 199 8 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. 	(Cal. 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
/

LA-CO-751
Dismissal 	Letter
Page 2
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 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
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	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 	(3) 	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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)

LA-CO-751
Dismissal 	Letter
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,
ROBERT THOMPSON
Deputy General 	Counsel
By MARC S. 	HURWITZ
Regional Attorney
Attachment 	(May 14, 	1998 Letter)
cc: 	Nathan Kowalski, 	Esq. 	(Geffner & Bush)

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 14, 	1998
William John Reilly
Re: 	William John Reilly v. 	United Teachers Los Angeles
Unfair Practice Charge No. 	LA-CO-751
WARNING 	LETTER
Dear Mr. Reilly:
In this charge filed October 14, 	1997, 	you allege that United
Teachers Los Angeles 	(UTLA) 	closed one of your grievance cases
against your will 	in violation of Government Code section 3543.6
of the Educational Employment Relations Act 	(EERA).
My investigation revealed the 	following information. 	You were a
teacher for the Los Angeles Unified School District 	for about
eleven 	(11) 	years until your retirement in November 1997. 	As a
teacher, 	you were a member of the bargaining unit exclusively
represented by UTLA. 	Upon receiving a Notice of Unsatisfactory
Service in June 1996 	(referred to in your charge as a poor
evaluation) 	from your former Principal at Virgil Middle School,
you filed a grievance that same month. 	You were represented by
UTLA which processed several grievances 	for you, 	including this
one which is known as 	"Reilly #3 v. 	LAUSD".
By letter dated August 6, 	1997 	(sent cert. mail return receipt),
UTLA's Grievance Review Committee advised you it decided not 	to
proceed to arbitration in this matter. 	It also outlined the
procedure 	for appealing this decision. 	By letter dated
September 12, 	1997 from Beverly Cook, 	Chair, 	Grievance Review
Committee, 	to your address of record on Califa Street, 	you were
advised about the August 6 letter and its contents. 	Ms. 	Cook
indicated that 	the August 	6 	letter was returned by the Postal
Service unclaimed and that delivery was attempted on August 	7, 	12
and 22. 	The September 12 	letter concluded by indicating that
UTLA had made a reasonable effort 	to contact you to inform you of
the status of your case and would proceed no further in the
matter; 	and that your Area Representative, 	Elsie Myers, 	was
advised to close this grievance. 	In response to your inquiry to
the union, 	Ms. 	Cook wrote you another letter on September 16,
1997 repeating information contained in the September 12 	letter.
You were advised, 	in part, 	that Ms. Myers closed this grievance.
Upon receiving the September 12 	letter and learning that your
case was 	closed, 	you called UTLA indicating that you did not want
it closed, 	and you indicated that you had not received notice

from the Post Office of the August 	6 certified letter. 	UTLA
repeated that your case was closed. 	Next, 	you telephoned Day
Higuchi, 	President of UTLA and advised him you wanted the
grievance reopened. 	He 	indicated that you needed to contact 	PERB
in Sacramento and file a grievance. 	You indicated, 	in part, 	that
was unfair. 	He gave you PERB's Sacramento telephone number and
hung up.
You do not believe UTLA made a reasonable effort 	to reach you in
August 1997. 	For example, 	you believe that UTLA should have
called you on the telephone 	in August 	1997 and sent 	the August 	6
letter regular and certified mail. 	You also allege, 	in part,
that you and your Area Representative, 	Elsie Myers, 	did not see
eye to eye. 	For example, 	you were in her office to discuss this
grievance. 	She suggested that you should drop the grievance
since you did not use the school's UTLA representative at a
meeting with the Principal. 	You actually used your daughter who
is a certified court reporter and takes perfect notes. 	Finally,
your charge provides 	the following short 	review of the 	facts 	in
outline 	form on page 5,
"The Principal who gave me a poor evaluation has been
'fired'.
I have had excellent evaluations 	in the past.
My Rep has let this case drag on for 14 months.
My rep is so 	vindictive 	(sic) 	I was told to drop the
case.
I offered the Principal 	$2,000.00 	to take a polygraph
and, 	if he passed, 	the money was his. 	He refused.
My Rep dropped my case because of 	the Postoffice 	(sic)
mistakes.
My Rep wouldn't 	even telephone although they have my
telephone number, my address in Woodland Hills, 	and I
have a listed number.
UTLA President Higuchi 	told me to 	file a grievance with
PERB when a simple word from him to my Rep would reopen
my case.
I am asking PERB to please 	tell UTLA to reopen my
case."
Based on the above facts, 	your charge fails to state a prima
facie case. 	You are alleging that your exclusive representative
denied you the 	right 	to fair representation guaranteed by EERA
section 3544.9 	and thereby violated section 3543.6(b). 	The duty
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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) 	(1982) 	PERB Decision No. 	258.)
In order to state a prima facie violation of this 	section of
EERA, 	Charging Party must show that the Association's 	conduct was
arbitrary, 	discriminatory or in bad faith. 	In United Teachers of
Los Angeles 	(Collins). 	the Public Employment Relations Board
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.
[Citations.]
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.
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. 	(Emphasis added.)" 	[Reed District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 332, p. 9, 	citing Rocklin
Teachers Professional. Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
In brief, 	you filed a grievance which was pursued to the point of
arbitration. 	UTLA decided not 	to proceed to arbitration and
attempted to notify you on August 	6, 	1997 by certified mail. 	You
indicate you did not receive this letter or any notices 	from the
Post Office. 	By the time you received the relevant 	information,
the grievance was 	closed by UTLA. 	Although you alleged facts
regarding several disagreements with UTLA, 	no facts demonstrate
that the union acted in an arbitrary, 	discriminatory, 	or bad
faith manner. 	UTLA followed its policy of sending notice to you
by certified mail 	of 	its decision not to proceed to arbitration,
and giving you your appeal 	rights. 	Even if you did not 	receive
the August 6 letter, 	there are insufficient facts to show a
W	
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violation of the duty of fair representation. 	In addition,
UTLA's 	failure 	to call you or send the letter by regular mail 	is
not evidence of arbitrary, 	discriminatory, 	or bad faith conduct.
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 have the case number written on the top right
hand corner of 	the charge form. 	The amended charge must be
served on the respondent's representative1 and the original proof
of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before May 21, 	1998, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3543.
Sincerely,
Marc S. Hurwitz
Regional Attorney
1UTLA's representative is Nathan Kowalski, 	Esq. 	of Geffner &
Bush, Burbank, CA.