United Teachers-Los Angeles (Simms) (PERB 0932E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DONNA SIMMS,
Charging 	Party,
v.
_____________
UNITED 	TEACHERS-LOS ANGELES,
Respondent.
Case No. 	LA-CO-581
PERB Decision No. 	932
May 15, 	1992
Appearance: 	Donna Simms, 	on her own behalf.
Before Camilli, Caffrey, 	and Carlyle, Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal by Donna Simms 	of 	a Board
agent's 	dismissal 	(attached hereto) 	of her charge that the United
Teachers-Los Angeles 	failed 	to 	adequately 	represent 	her 	in
violation of 	section 	3543.6(b) 	of the Educational 	Employment
Relations 	Act 	(EERA).11
1EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.6(b) 	provides, 	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
employees 	because of 	their exercise of 	rights
guaranteed by this 	chapter.
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The 	Board has 	reviewed the 	Board 	agent's 	warning and
dismissal 	letters, 	and 	finding them to be 	free of prejudicial
error, 	adopts 	them as the decision of 	the Board itself.
The 	original 	and amended unfair practice 	charge 	in Case
No. 	LA-CO-581 	is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
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STATE OF CALIFORNIA 	PETE W I L S O N , Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 3, 	1992
Donna 	Simms
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
Unfair Practice Charge No. 	LA-CO-581
Donna 	Simms 	v. 	United Teachers-Los Angeles
Dear Ms. 	Simms:
I 	indicated to you 	in my attached letter dated February 	10, 	1992,
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 February 	18, 	1992, 	the charge would be dismissed. 	I
later extended the deadline to February 26, 	1992, 	and 	finally to
March 2, 	1992.
On March 	2, 	1992, 	you filed an amended charge. 	The only
significant 	new 	factual 	allegation 	is 	that 	UTLA Attorney Carl
Joseph made 	"sexually-harassing 	jokes 	about women" 	at 	a workshop
attended by a male teacher of 	your acquaintance. 	This 	alleged
fact 	still 	does 	not 	show that 	sexism 	or 	any other 	impermissible
motive was 	the 	cause of 	the 	alleged defects 	in UTLA's
representation of 	you. 	I 	am therefore dismissing the 	charge based
on the 	facts 	and 	reasons 	contained 	in this 	letter and 	in my
February 	10 	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 Code of Regulations, 	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 	(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 Civil
Procedure 	section 	1013 	shall apply. 	The Board's address 	is:
----

Dismissal
LA-CO-581
March 3, 	1992
Page 2
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 	(California 	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 California 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 	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 	Code 	of
Regs., 	tit. 	8, 	sec. 	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. 	ALLEN
Regional 	Attorney
Attachment
cc: 	Jesus E. 	Quinones

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
February 	10, 	1992
Donna 	Simms
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-581,
Donna Simms 	v. 	United Teachers-Los Angeles
Dear Ms. 	Simms:
In the above-referenced charge, 	you allege that United Teachers-
Los Angeles 	(UTLA) 	denied you the right of 	fair representation
guaranteed by Government 	Code 	section 	3544.9 	of 	the 	Educational
Employment Relations Act 	(EERA). 	This 	conduct 	is alleged to
violate Government Code 	section 3543.6(b) 	of the EERA.
My 	investigation of 	the 	charge 	reveals 	the 	following 	facts.
You were 	employed by the 	Los Angeles 	Unified 	School 	District 	as 	a
substitute teacher, 	in a bargaining unit 	for which UTLA is 	the
exclusive representative. 	On December 8, 	1989, 	you were 	issued
an 	Inadequate 	Service 	Report 	for 	Day-to-Day 	Substitute 	Teacher.
You 	filed a 	grievance 	challenging 	the 	Report, 	which UTLA 	took to
arbitration. 	At the arbitration hearing on March 28, 	1991, 	you
were 	represented by 	UTLA Attorney Carl 	Joseph and 	his 	assistant
Paula 	Parr. 	The arbitrator decided against 	you.
On July 	12, 	1991, 	you wrote to UTLA, 	requesting that UTLA ask the
arbitrator to reopen the 	hearing. 	You 	told 	UTLA that you 	felt
Joseph did not 	fairly represent you 	in the 	following respects:
he 	did not present 	"important 	evidence"; 	he 	did not meet with you
before 	the hearing and did 	not 	"properly prepare"; 	he
"drastically reduced the terms" 	of the grievance; 	he 	"improperly
questioned" 	you; 	and he 	"refused to 	file a Written Brief" 	as 	the
District 	did. 	You 	also told 	UTLA that 	Joseph 	suggested 	to 	you 	on
the 	telephone that you wear 	"black 	stockings 	and 	garters 	to 	the
Arbitration, 	so 	that he would be 	'psyched-up'." 	UTLA responded
in a 	letter dated July 	19, 	1991, 	offering 	"an explanation of why
certain actions 	were 	and were 	not 	taken" 	and 	concluding 	that 	"it
is 	UTLA's 	position that your arbitration was 	handled 	in a
competent 	manner." 	You allege 	that 	UTLA's 	response was 	"non-
factual" 	and did not 	address 	all 	of 	the 	questions 	you raised.
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Warning 	Letter
LA-CO-581
February 	10, 	1992
Page 	2
Based on the 	facts 	stated above, 	the charge does 	not 	state a
prima 	facie violation of the EERA, 	for the reasons 	that 	follow.
You have alleged that UTLA, 	as exclusive representative, 	denied
you 	the 	right 	to 	fair representation guaranteed 	by 	EERA 	section
3544.9 	and thereby violated 	section EERA 	3543.6(b). 	The duty 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) 	(1983) 	PERB Decision No. 	258. 	In order to
state a prima 	facie violation of 	this 	section of 	the EERA, 	a
Charging 	Party 	must 	show that 	the 	exclusive 	representative's
conduct was arbitrary, 	discriminatory, 	or in bad faith. 	In
United Teachers of Los Angeles 	(Collins), 	id., 	the Public
Employment Relations 	Board 	(PERB) 	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.
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. 	Reed District Teachers
Association. CTA/NEA (Reyes) 	(1983) PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
It 	is 	not 	apparent 	from the charge how UTLA's 	conduct was 	without
a 	rational basis, 	devoid of honest 	judgment, 	discriminatory or 	in
bad faith. 	At worst, 	it may appear that UTLA was 	negligent or
exercised poor 	judgment, 	but 	such 	conduct would not violate 	the
EERA. 	UTLA Attorney Joseph's 	alleged 	suggestion 	that you wear
"black 	stockings 	and garters" 	may have been, 	as you 	state,
"inappropriate, 	sexist, 	and insulting," 	but there are no alleged
facts 	that 	show 	that 	sexism or 	any 	other 	impermissible 	motive was
the 	cause 	of 	the 	alleged defects 	in UTLA's 	representation of 	you.
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

Warning 	Letter
LA-CO-581
February 	10, 	1992
Page 3
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 	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
February 	18, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney