United Teachers of Los Angeles (Keskey) (PERB 0914E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN 	KESKEY,
Charging 	Party,
v.
UNITED TEACHERS OF LOS ANGELES,
Respondent.
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Case No. 	LA-CO-547
PERB Decision No. 	914
December 	13, 	1991
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Appearances: 	Marilyn Keskey, 	on her own behalf; 	Taylor, 	Roth,
Bush & Geffner by Catherine M. 	Loya, 	Attorney, 	for United
Teachers of Los Angeles.
Before: 	Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by
Marilyn Keskey 	(Keskey) 	to 	a 	PERB 	administrative 	law 	judge's
(ALJ) 	proposed decision 	(attached) 	dismissing the unfair practice
charge and complaint. 	The unfair practice charge 	and 	complaint
allege that United Teachers 	of Los Angeles 	(UTLA) 	violated
section 	3543.6(b) 	of the 	Educational 	Employment Relations Act
(EERA or Act)1 by 	failing to 	satisfy 	its duty of 	fair
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(b) 	states 	in pertinent
part:
It 	shall be unlawful 	for an employee
organization to:
(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
)
______)

representation at 	a 	Step 2 	grievance hearing.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the hearing transcript 	and 	exhibits, 	proposed decision,
Keskey's 	exceptions, 	and UTLA's response thereto, 	and finds 	the
ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free 	of
prejudicial 	error and therefore 	adopts 	them as 	the decision of
the 	Board 	itself 	consistent with 	the 	following discussion.
KESKEY'S 	EXCEPTIONS
Keskey 	appeals 	the proposed 	decision on the 	basis 	that 	her
testimony was 	truthful. 	Keskey disagrees with 	the ALJ's
credibility determinations, 	wherein the ALJ did not 	credit
Keskey's 	testimony. 	Where 	conflict 	existed 	in the 	testimony, 	the
•ALJ 	credited 	the 	testimony 	of 	UTLA area 	representative 	Tom Kerr
(Kerr), 	as corroborated by Jessie G. 	Franco 	(Franco),
Superintendent of Elementary District No. 	3. 	Keskey's 	exceptions
can be summarized as 	follows: 	(1) 	Keskey contends 	there 	is 	no
evidence 	that 	Kerr prepared 	a 	document/chart 	noting 	the
consistencies and 	inconsistencies 	of the 	students' 	complaints
against her; 	(2) 	Keskey contends 	she was 	forced to 	say that 	she
had three discussions with Kerr between the Step 	1 	and Step 	2
meetings; 	(3) 	Keskey claims 	the ALJ 	should not have credited
Kerr's 	testimony 	in which 	Kerr denied 	telling 	Keskey prior 	to 	the
Step 	2 meetings 	that, 	"The District will be angry with me 	if 	I
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter.
N	
2

fight too hard;" 	(4) 	Keskey disputes 	the ALJ's 	reliance on the
testimony of 	Kerr and Franco 	in which they denied 	that Kerr
stated at 	the 	Step 	2 	meeting that 	there had been no violation of
the collective bargaining agreement; 	and 	(5) 	Keskey excepts 	to
the ALJ's 	finding that Kerr 	spent a 	considerable 	amount 	of 	time
preparing for the Step 2 meeting. 	In 	sum, 	Keskey argues 	that
Kerr and Franco provided the ALJ with 	false 	evidence. 	Further,
at the Step 	2 	meeting, 	Keskey claims 	Kerr did not 	argue the 	case
to the best of his 	ability.
UTLA'S 	RESPONSE 	TO EXCEPTIONS
UTLA responds 	that 	the ALJ's 	credibility determinations 	are
supported by the record as 	a whole. 	As 	Keskey's 	exceptions 	to
the proposed decision involve 	only 	issues 	of 	credibility, 	UTLA
argues 	that 	deference 	to 	the ALJ's 	credibility determinations
must result 	in the Board's 	rejection of Keskey's 	exceptions.
UTLA argues 	that deference 	is 	appropriate where 	credibility
determinations play a vital 	role 	in the 	consideration of 	the
complaint. 	UTLA cites 	Los Angeles 	Unified 	School 	District 	(1988)
PERB Decision No. 	659 to support its position. 	In that case, 	the
Board 	found 	it 	appropriate 	to 	adopt 	the ALJ's 	credibility
determinations 	based upon the ALJ's 	observation of 	the witnesses'
demeanor and appearances. 	Further, 	as the ALJ provided a
detailed rationale 	for his 	credibility determinations, 	deference
must be accorded to 	the ALJ's 	determinations. 	After addressing
Keskey's 	specific 	credibility 	exceptions, 	UTLA concludes 	that the
exceptions must be rejected. 	UTLA states 	that, 	"In light of
. .1
W	
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these undisputed 	facts, 	along with the ALJ's 	credibility
determinations, 	the 	clear .preponderance of 	the relevant evidence
supports 	the ALJ's 	decision."
DISCUSSION
The proposed decision 	in this 	case 	is 	based upon the ALJ's
credibility determinations. 	With regard to 	cases 	of 	this 	nature,
the 	Board has 	stated:
[W]e must 	emphasize 	that 	credibility
determinations play a vital role 	in the
consideration of this 	allegation. 	While we
are 	free 	to 	consider the 	entire 	record 	and
draw our 	own 	conclusions 	from the 	evidence
presented, 	we will 	afford deference to an
ALJ's 	findings 	of 	fact which 	incorporate
credibility determinations. 	Santa Clara
Unified School 	District 	(1979) 	PERB Decision
No. 	104. 	This appears to us to be a classic
instance where deference 	is 	appropriate.
(Los Angeles 	Unified School District, 	supra,
PERB Decision No. 	659, 	p. 	8.)
The Board, 	in Los Angeles Unified School District, 	supra, 	found
that 	the 	testimony 	in that 	case presented 	two dramatically
different versions 	of 	an 	incident. 	Because 	the ALJ 	credited 	one
version, 	and there was 	no basis 	in the transcript 	for overturning
that 	determination, 	the ALJ's 	credibility determination was
adopted by the Board. 	In the case before us, 	there 	is 	no basis
in the 	record 	for overturning 	the ALJ's 	credibility
determinations. 	Accordingly, 	the Board must defer to 	the ALJ's
findings 	which 	incorporate 	such determinations.
Further, 	the Board generally gives 	deference 	to the
credibility determinations 	of 	its ALJ's, 	in recognition of the
fact that, 	by virtue of witnessing the 	live testimony, 	they are
4

in a 	much better position to 	accurately make 	such determinations
than 	the Board, which reviews 	only 	the 	cold transcript 	of 	the
hearing. 	(Santa Clara Unified 	School 	District 	(1979) 	PERB
Decision No. 	104, 	pp. 	12-13; 	Beverly Hills Unified School
District 	(1990) 	PERB Decision No. 	789, 	pp. 	8-9.) 	Based upon a
review of 	the entire record, 	the Board rejects 	Keskey's
exceptions 	to the ALJ's 	credibility determinations.
Given the ALJ's 	credibility determinations 	and 	the
undisputed evidence, 	the Board affirms 	the ALJ's 	dismissal 	of 	the
unfair practice 	charge 	and 	complaint.
ORDER
The unfair practice 	charge and 	complaint 	in Case 	No.
LA-CO-547 	is 	hereby DISMISSED.
Member Shank and Camilli 	joined 	in this 	Decision.
55

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN 	KESKEY,
Charging 	Party,
v.
UNITED TEACHERS 	OF 	LOS ANGELES,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CO-547
PROPOSED 	DECISION
(8/7/91)
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Appearances: 	Marilyn Keskey, 	on her own behalf; 	Taylor, 	Roth,
Bush & Geffner by Jesus E. 	Quinonez 	and Catherine M. 	Loya,
Attorneys, 	for United Teachers of Los Angeles.
Before Douglas 	Gallop, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On October 	15, 	1990, 	Marilyn Keskey filed an unfair practice
charge 	alleging that 	United Teachers 	of 	Los 	Angeles 	(hereinafter
Respondent) 	violated 	section 3543.6(b) 	of the Educational
Employment Relations Act 	(hereinafter EERA)1 by 	failing to
satisfy 	its 	duty of 	fair representation at 	a 	Step 	2 	grievance
hearing, 	and by refusing to 	submit 	the grievance to arbitration.
On April 	16, 	1991, 	the General Counsel of the Public Employment
Relations 	Board 	(PERB) 	issued a 	letter dismissing the 	allegation
concerning Respondent's 	refusal 	to 	take the 	grievance 	to
arbitration.
Also on April 	16, 	1991, 	a complaint issued alleging that
Respondent's 	former area representative, 	Tom A. 	Kerr, 	made
certain 	comments 	during the processing of 	Keskey's 	grievance 	at
The 	EERA is 	codified at Government Code 	section 3540, 	et
seq. 	All 	citations 	herein are to the Government Code unless
otherwise 	indicated.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
----.--------)

Step 	2 which were 	inconsistent with Respondent's duty, 	under
section 3543.1(a) 	and 3544.9, 	to represent employees 	in good
faith, 	and thus, 	violated section 3543.6(b). 	Respondent filed an
answer 	to 	complaint 	and motion to dismiss 	denying 	the 	commission
of 	unfair practices, 	and alleging various affirmative defenses.
The motion to dismiss was 	denied, 	and after an informal
settlement conference 	failed to resolve the dispute, 	a formal
hearing was 	conducted on July 23, 	1991. 	The parties waived the
receipt of transcripts and the 	filing of written briefs, 	and with
oral 	argument at the hearing, 	the case was 	submitted 	for proposed
decision.2
FINDINGS OF 	FACT
Background:
Respondent, 	an 	"employee organization" 	within the meaning of
section 3540.l(d), 	is the exclusive representative for a unit of
certificated 	employees 	of 	the 	Los Angeles 	Unified 	School 	District
(hereinafter District). 	Respondent and the District were parties
to 	a 	collective bargaining agreement 	effective July 	1, 	1988
through June 30, 	1991 	(hereinafter Agreement). 	The Agreement
contained 	a 	three-step 	grievance 	procedure 	culminating 	in binding
arbitration.
2Keskey also 	filed a 	charge 	against Los Angeles 	Unified
School 	District, 	alleging that 	she was discharged 	from her
employment 	in retaliation 	for 	engaging 	in protected activities.
The General Counsel dismissed the charge as untimely, 	and the
PERB affirmed the dismissal on appeal. 	Los Angeles 	Unified
School District 	(1991) 	PERB Decision No. 	887.
22

During the 	time period relevant herein, 	Respondent
maintained 	a 	policy whereby 	its 	representatives 	had 	no 	authority
to 	settle grievances 	at Step 	1 	or Step 2 without the consent of
the unit member. 	Decisions 	to arbitrate grievances were made by
a 	grievance review committee, 	whose voting members 	are 	teachers
for the District. 	A unit 	member wishing 	to have 	a 	grievance
taken to 	arbitration was 	afforded 	the 	opportunity to 	be 	heard 	and
to present documentary evidence before the 	grievance review
panel.
Keskey began her employment 	for the District 	in 	1975, 	and
worked 	as 	a 	substitute teacher 	in the 	elementary division
commencing in 	1982. 	She taught at about 	250 	elementary schools.
Keskey became a member of 	Respondent 	in about 	1980, 	and attended
about 	eight meetings 	conducted 	for 	substitute teachers. 	She 	had
not 	sought 	or occupied any position with 	Respondent.
Prior to the 	events 	described below, 	Keskey had generally
maintained 	a 	harmonious 	relationship with 	Respondent's
representatives. 	The one possible 	exception to this 	involved a
grievance 	she 	filed, 	with Respondent's assistance, 	when she
received 	an inadequate 	service report dated May 	2, 	1988. 	The
District 	rejected 	that 	grievance 	for 	failure 	to 	follow the
timelines 	established by the Agreement, 	and Keskey 	feels 	that
Respondent 	should 	have 	advised unit 	members 	of 	the 	contractual
time 	requirements. 	It 	is 	unclear whether Keskey actually
complained about this 	to any of 	Respondent's 	representatives.
w
3

Kerr was 	employed by 	Respondent 	as 	an area 	representative
from February 	1989 to June 	1990. 	Prior to the 	events 	leading to
the charge in this 	case, 	Kerr and Keskey had met only once, 	and
the encounter had been amicable. 	One of Kerr's duties 	for
Respondent was 	to 	represent 	substitute 	teachers 	in grievance
matters. 	During the course of his 	employment he 	filed, 	processed
and resolved about 	150 	grievances. 	Previously, 	Kerr had been
employed as 	a teacher by the 	District, 	and had been active 	in
Respondent's 	organization, 	serving as an officer in various
capacities.
Credibility:
Keskey, 	Kerr and Jessie G. 	Franco, 	who is employed by the
District 	as 	superintendent of 	elementary district 	#3, 	testified
at the hearing. 	Kerr was 	an 	impressive witness 	from the
standpoint of his 	demeanor, 	which 	showed a relaxed confidence,
and his detailed recall of the 	events.3 Franco, 	although 	less
impressive 	from the 	standpoint of recall, 	also exhibited a
forthright, 	confident demeanor which 	inspired confidence.
Keskey, 	on the other hand, 	was not a reliable witness. 	With
respect to demeanor, 	she tended to be argumentative, 	hostile,
defensive 	and 	non-responsive 	when 	confronted with 	questions 	she
3For example, 	Kerr, 	unassisted by reference to a 	student's
letter concerning Keskey's 	actions 	in a 	classroom, 	was 	able to
recall 	that 	the 	student had 	stated 	she 	did 	not hear 	certain
statements 	attributed to Keskey, 	rather than 	stating that 	Keskey
did 	not make 	the 	statements. 	Said testimony was 	later
corroborated when the 	letter was 	introduced 	into 	evidence. 	In
spite 	of 	the passage 	of 	time 	and the many grievances 	he handled,
Kerr was 	also 	able to 	recall 	that Keskey's 	initial 	inadequate
service report 	in 	1990 was 	completed on the wrong 	form.
4

felt 	sought to 	elicit 	information damaging to her case. 	In
addition, 	she testified in a rambling manner, 	repeatedly infusing
her opinions 	into 	recitations 	of 	the 	events 	as 	they actually 	took
place. 	She also demonstrated that 	listening to questions 	and
instructions 	is not her forte, 	which is probably why she
apparently misunderstood 	or 	misinterpreted many 	of 	the 	statements
made during the course of 	the 	1990 	grievance. 	While 	she did
testify 	in a 	consistent manner 	concerning 	the 	three 	statements
attributed to Kerr 	in the 	complaint, 	her testimony was
inconsistent on many other matters. 	Finally, 	her testimony
showed a poor recall 	for the details 	of 	critical 	conversations.
Therefore, 	Kerr's testimony, 	as corroborated by Franco, 	is
credited where 	conflicts 	exist.
The 	February 	1990 	inadequate 	service report:
Keskey 	received 	an 	inadequate 	service 	report 	arising 	from
her performance as 	a 	substitute teacher on February 	6, 	1990. 	The
report 	alleged 	that 	a 	group 	of 	students 	complained 	to the 	school
principal 	concerning 	statements 	made 	to them by Keskey, 	and that
4
she 	tore 	up 	some 	their work. 	After a verbal 	conference with 	the
principal, 	Keskey 	immediately proceeded to 	Respondent's 	office
and met with Kerr. 	Kerr discussed the 	incident with Keskey and
prepared 	a grievance 	for her, 	which was 	timely 	filed with the
District on February 21, 	1990.
4As 	noted above, 	the original 	report was 	completed on the
wrong 	form. 	Similar allegations were made on the 	correct 	form
shortly 	thereafter.
5

After the grievance was 	filed, 	a Step 	1 	grievance meeting
was 	scheduled to take place within 	15 	days 	from the 	filing date.
Either by telephone, 	or before they entered the Step 	1 	meeting,
Kerr 	instructed Keskey to 	let him do 	the 	talking. 	Kerr advised
all 	grievants 	of 	this 	because he did not want them to
inadvertently 	make 	damaging 	statements 	to 	District
representatives. 	Kerr also advised Keskey not to 	expect 	a
favorable 	resolution at Step 	1.
The 	Step 	1 	meeting lasted 	15 to 	20 minutes. 	Prior to the
meeting, 	Keskey had been provided with written 	statements
obtained 	by 	the 	District 	from 	students 	concerning 	the 	allegations
against her. 	At the Step 	1 meeting, 	the District cited the
letters 	as 	grounds 	for the 	inadequate 	service report. 	Kerr
requested copies 	of the letters, 	which were turned over to him.
After briefly reviewing 	some of 	the 	letters, 	Kerr commented that
they appeared to be 	too consistent. 	Kerr gave Keskey's 	version
of 	the 	facts, 	and demanded that the report be rescinded. 	The
District 	refused to 	settle 	at Step 	1.
Keskey 	admitted 	that 	she was 	favorably 	impressed 	by 	Kerr's
handling of her grievance at Step 	1. 	She testified that he gave
a 	strong presentation,5 and appeared to be 	a 	"fighter." 	After
the 	Step 	1 	meeting, 	Kerr 	said he would take her grievance to
5On cross-examination, 	she changed this 	to a 	"strong,
medium" 	presentation.
6

Step 	2. 	Keskey 	said 	she 	had 	substantial 	documentary 	evidence 	to
provide, 	and Kerr 	said 	"fine," 	she would probably win the
grievance.
After the Step 	1 	grievance meeting, 	Kerr spent 	several hours
analyzing the 	students' 	letters 	and drafting a 	chart noting their
consistencies 	and 	inconsistencies. 	He 	also 	reviewed a 	chart 	and
letter from Keskey analyzing the 	students' 	charges, 	and the
District's 	allegations against her. 	In addition, 	Kerr discussed
the 	grievance with 	Keskey by 	telephone 	on at 	least 	three
occasions prior to the Step 2 	meeting.6
The Step 2 meeting, 	as originally scheduled, 	was postponed
at 	the District's 	request. 	Kerr 	left a note 	for Keskey at work
informing her of 	the postponement on the morning of 	the 	scheduled
meeting. 	Keskey was 	not given the note until that afternoon,
about 	one 	hour before 	the meeting had been 	scheduled 	to 	commence.
6Keskey 	testified 	that 	she 	attempted 	to 	telephone 	Kerr 	on
many occasions, 	but was repeatedly told he was not 	in, 	or was
placed on hold 	indefinitely. 	Nevertheless, 	she admitted
discussing her case with 	Kerr by 	telephone on three 	occasions
between the Step 	1 	and Step 	2 	meetings. 	Keskey also testified
that when 	she offered to provide Kerr with her documents, 	he
snapped at her, 	"Just put it in the mail." 	Later in her
testimony, 	Keskey changed this by adding that Kerr said, 	"I 	don't
want to hear about 	it. 	Put 	it 	in the mail." 	On further
questioning, 	Keskey 	again 	changed her 	testimony by 	claiming 	that
Kerr 	said, 	"I'm very busy. 	Put 	it in the mail." 	Kerr credibly
testified that he was, 	in fact, 	very busy and might have 	said
this 	to 	Keskey, 	but never avoided discussing the 	grievance with
her. 	Kerr recalled many telephone 	conversations with Keskey
concerning 	the grievance, 	but 	could not pinpoint 	the number at
each 	step 	in the process.
7

Keskey blames 	Kerr 	for the delay, 	because he purportedly did not
inform the person he gave the note to that 	it was 	important.7
The Step 2 meeting was rescheduled for April 	27, 	1990. 	By
prior arrangement, 	Keskey and Kerr were to meet 	15 	minutes prior
to the 	start of the meeting. 	Kerr arrived on time, 	but Keskey
was 	about 	five minutes 	late. 	Kerr reviewed the mechanics 	of 	the
Step 	2 	grievance process with Keskey. 	He 	said he thought the
strongest 	argument 	for her 	case would be to point 	out 	that 	the
students' 	letters were 	so consistent that they must have been
coached by the 	District. 	Keskey 	showed Kerr 	some 	favorable 	notes
she had received 	in the past 	from 	students 	and principals. 	Kerr
told her 	that he did not believe 	the 	letters would be 	very
productive, 	because the District generally does 	not attach much
weight 	to 	a 	substitute teacher's 	prior performance 	in considering
discipline 	for 	subsequent 	conduct.8
77Keskey was 	both 	defensive 	and 	non-responsive when 	asked
whether 	she 	complained to 	Kerr about his 	handling of 	the
postponement.
8 Keskey 	testified 	that 	Kerr's 	eyes 	were half 	closed 	during
this 	conversation, 	and that he appeared 	"totally out of 	it." 	As
alleged 	in the 	complaint, 	Keskey 	testified that 	Kerr told her,
"If 	I 	try to 	fight too hard, 	the District will be mad at me."
Keskey was 	far from precise, 	however, 	as to what 	she 	said to Kerr
prior to his 	statement. 	Keskey testified that in response, 	she
said, 	"That's 	ridiculous." 	Keskey claims 	that 	she told Kerr 	she
had received a 	termination notice, 	and Kerr 	said nothing 	in
response. 	In addition, 	Keskey testified that Kerr 	stated he
should do 	all 	the 	talking at 	the meeting. 	Kerr denied 	saying
that 	the 	District would be angry with him 	if 	he 	fought hard 	for
Keskey, 	and further testified that 	it was his understanding, 	from
the Step 	1 	meeting, 	that he would be the 	spokesperson in the
grievance meetings. 	For the reasons 	set 	forth in the 	credibility
analysis above, 	Kerr's testimony is 	credited.
8

After waiting 	about 	one-half 	hour 	for 	a 	District
representative to arrive, 	the Step 	2 	meeting took place. 	Kerr
outlined 	the 	history of 	the 	grievance 	and 	again 	stated 	the 	facts
of 	the 	incident 	as 	had been related to him by Keskey. 	He 	argued
that 	the 	students 	might have misconstrued what 	she had 	said, 	and
that 	their 	statements 	appeared more 	damaging 	than what 	had
actually 	taken place. 	He 	attributed the 	latter 	assertion to his
belief 	that 	the 	students 	had been 	coached when writing 	the
statements. 	He pointed out, 	inter alia, 	that all but one 	student
had misspelled Keskey's 	name, 	and 	in the 	same way. 	Kerr
concluded 	that 	the 	allegations 	in the 	report were
unsubstantiated, 	and even if accurate to a degree, 	the District
had 	not 	followed 	its 	progressive disciplinary policy. 	Therefore,
the 	incident warranted no discipline or lesser discipline, 	such
as 	a warning. 	Kerr offered that 	in the future, 	Keskey not be
assigned 	to the 	school 	in question.
After Kerr concluded, 	Keskey 	spoke 	on her own behalf,
presenting 	earlier 	testimonials 	to 	her work performance 	from
students. 	Kerr requested a break to 	speak with her. 	During the
break, 	Kerr told Keskey that he did not 	think it would be 	in
Keskey's 	best 	interest 	to present that 	type 	of 	information,
because 	the District would 	consider 	it 	irrelevant. 	Keskey
disagreed, 	whereupon Kerr 	said 	"fine," 	but 	it would be over his
objection and against his 	advice.9
9According to Keskey, 	Kerr 	simply 	said, 	"The people 	in the
meeting aren't 	listening 	to you, 	so don't talk." 	She testified
that in reply, 	she said, 	"Well, 	I have to talk. 	Somebody's got
99

When Kerr and Keskey returned to the 	Step 	2 	meeting, 	Keskey
continued her presentation for about ten minutes, 	at which point,
the 	District's 	representatives 	brought 	the meeting to a 	close.
According to Keskey, 	after the meeting, 	she asked Kerr when she
would receive 	a decision. 	Kerr allegedly 	replied that 	it would
not be 	in five days 	as 	set 	forth in the Agreement, 	because he was
going on a 	fishing trip. 	When Keskey disputed this, 	Kerr
purportedly responded that Franco, 	who had attended the meeting,
could respond whenever 	she wanted, 	or could not 	respond at 	all.
Keskey 	claims 	she told Kerr 	she was 	shocked at his 	lack of
support.10
In a 	letter to Kerr dated May 	10, 	1990, 	Franco denied the
grievance 	at 	Step 	2. 	Keskey was 	formally discharged 	from her
to 	represent me." 	Keskey recalled nothing 	further of 	this
conversation. 	Kerr's version is 	credited, 	since his 	recall 	is
clearly 	superior, 	and Keskey's 	testimony 	appears 	to 	constitute 	a
shorthand 	summary 	of 	the 	incident.
10Kerr 	did 	not 	testify 	concerning 	this 	post-meeting
conversation. 	As 	alleged 	in the complaint, 	Keskey testified that
Franco, 	during the meeting, 	asked Kerr if this Agreement had been
violated, 	and Kerr 	simply responded, 	"No." 	Both Kerr and Franco
denied 	that 	the 	question or 	the 	answer were 	stated 	at 	the
meeting. 	Franco 	further 	generally 	corroborated 	Kerr's 	version of
the 	meeting, 	and testified that based on her 	experience with 	Kerr
and other representatives of Respondent at Step 	2 	meetings, 	he
performed 	in an above-average manner. 	As 	noted above, 	Kerr and
Franco were generally more 	credible 	as witnesses 	than was 	Keskey,
and 	her 	initial 	testimony 	concerning these 	statements 	was 	vague
and 	confusing 	as 	to when and how often they were made.
Furthermore, 	Keskey admitted that 	Kerr disputed the validity of
the 	students' 	letters, 	and in light of this, 	it is unlikely he
would have 	admitted that 	there was 	no violation of 	the Agreement.
Therefore, 	the 	statements 	attributed to Franco and Kerr are not
credited.
10

position 	as 	a 	substitute 	teacher.11 Keskey 	requested 	a 	meeting
.1 : 4 	with 	Respondent's 	grievance 	review 	committee which 	Kerr 	arranged,
but did not attend. 	At the grievance review meeting, 	which took
place 	on July 	5, 	Keskey argued that her grievance 	should be 	taken
to arbitration and 	submitted a 	25-page report, 	including
exhibits. 	The review panel 	voted not to take her grievance 	to
arbitration.1212
CONCLUSIONS 	OF 	LAW
An exclusive 	representative 	is 	obligated to process 	a unit
member's 	grievance 	in good 	faith. 	A violation of 	that duty takes
place when the 	representative's 	action 	is 	arbitrary,
discriminatory or 	in bad 	faith. 	United Teachers 	of 	Los Angeles
(Buller) (1984) 	PERB Decision No. 	438; 	United Teachers of Los
Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258. 	Mere negligence
or poor 	judgment 	in the handling of 	a 	grievance does 	not
establish a violation of the duty, 	nor do differences 	in
grievance-handling 	tactics, 	or differing 	interpretations 	of 	the
collective bargaining agreement. 	United Teachers 	of 	Los Angeles
(Buller). 	supra.
The 	complaint alleges 	that three 	statements 	by 	Kerr during
the processing of 	Keskey's 	grievance 	at 	Step 	2 were 	inconsistent
11Keskey did not grieve her discharge, 	but 	filed a 	charge
against the District with PERB, 	alleging unlawful 	retaliation.
As 	noted above, 	the dismissal 	of that 	charge as 	untimely was
upheld by PERB in Los Angeles 	Unified School District, 	supra.
12It has 	been noted that 	the General 	Counsel 	dismissed
Keskey's 	allegation herein that 	the 	refusal 	to arbitrate her
grievance 	violated 	the 	EERA.
11

with Respondent's 	duty of 	fair representation. 	It 	is 	alleged
that before the Step 2 meeting, 	Kerr told Keskey, 	"If 	I 	fight
hard for you, 	the 	District will 	get mad at me." 	The 	evidence
supporting that allegation has 	not been credited. 	The 	complaint
also cites Kerr's alleged denial, 	at the Step 2 meeting, 	that
there had been a violation of the Agreement. 	The 	evidence
presented 	to 	establish that 	statement 	has 	also 	not 	been 	credited.
The 	third 	statement 	attributed to Kerr 	in the 	complaint 	is 	that
Kerr told Keskey, 	"Don't 	speak any more." 	While the 	credited
evidence 	does 	not 	establish a 	flat prohibition by Kerr against
Keskey 	speaking at 	the Step 	2 	meeting, 	he admittedly attempted to
dissuade her 	from doing 	so. 	Said action merely 	constituted a
grievance-handling tactic, 	which Keskey, 	at any rate, 	ignored,
and 	Kerr's 	statements 	did 	not violate 	any 	statutory duty owed 	to
her.
If 	the 	complaint may be 	construed to generally 	allege 	a
failure 	to 	represent 	Keskey 	in good 	faith at 	the 	Step 	2 	grievance
level, 	the evidence fails 	in that respect as well. 	It is
undisputed that 	Kerr promptly met with 	Keskey to discuss 	the
inadequate 	service report, 	and promptly prepared and 	filed 	a
grievance 	for her. 	It 	is 	also undisputed that Kerr vigorously
advocated Keskey's grievance at the Step 	1 	level.
While 	Keskey 	is 	dissatisfied with the 	level 	of 	communication
by Kerr prior to the Step 	2 meeting, 	it is undisputed that they
discussed 	the 	grievance by 	telephone 	at 	least 	three 	times 	before
the meeting, 	and the evidence establishes 	that Kerr, 	given his
12

caseload, 	spent a 	considerable amount of 	time preparing 	for the
Step 2 	meeting. 	It 	is 	also undisputed that, 	alleged improper
statements 	aside, 	Kerr did dispute the validity of the 	students'
letters 	and Keskey was permitted to 	speak, 	at length, 	on her own
behalf 	at the Step 	2 meeting. 	Although disputed by Keskey, 	it 	is
further 	concluded that 	Kerr argued her 	case 	to 	the 	best 	of 	his
ability, 	given the evidence against her.
Accordingly, 	it 	is concluded that the evidence 	fails 	to
establish that 	Respondent violated the 	EERA, 	and 	it will 	be
recommended 	that 	the 	charge 	and 	complaint 	be dismissed.
PROPOSED 	ORDER
Based on the 	findings 	of 	fact, 	conclusions 	of 	law and the
entire record 	in this 	case, 	and no violations of the Educational
Employment 	Relations 	Act 	having been 	found:
IT 	IS 	HEREBY ORDERED that 	the unfair practice 	charge 	and
complaint 	herein are 	DISMISSED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions of the record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually 	received before the 	close 	of business 	(5:00 p.m.) 	on the
13

last day 	set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or 	Express 	United 	States 	mail, 	postmarked not 	later
than the 	last day 	set for filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must be 	served
concurrently with 	its 	filing upon each party 	to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
2 .
Dated: 	August 	7, 	1991 	,
Douglas 	Gallop
Administrative 	Law 	Judge
14