United Teachers-Los Angeles (Moszkowski) (PERB 0946E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
LENA 	IGGERS 	MOSZKOWSKI,
Charging 	Party,
v.
UNITED 	TEACHERS-LOS ANGELES,
Respondent.
Case No. 	LA-CO-583
PERB Decision No. 	946
June 30, 	1992
Appearance: 	Lena 	Iggers Moszkowski, 	on her own behalf.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by Lena 	Iggers Moszkowski 	of 	a
Board agent's 	dismissal 	(attached hereto) 	of her charge 	alleging
that 	the 	United 	Teachers-Los 	Angeles 	violated 	section 	3543.6(b)
of the Educational 	Employment Relations Act 	(EERA)1 by 	failing to
represent her 	in her grievances 	against 	the 	Los Angeles 	Unified
School District.
EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 	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
employees 	because of 	their exercise of 	rights
guaranteed by 	this 	chapter.
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1
JEERA

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 unfair practice charge 	in Case No. 	LA-CO-583 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Caffrey 	joined 	in this 	Decision.
2
2

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
March 16, 	1992
Lena 	Iggers 	Moszkowski
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-583, 	Lena Iggers Moszkowski v. 	United
Teachers 	- 	Los Angeles
Dear Ms. 	Moszkowski:
I 	indicated to you in my attached 	letter dated March 	2, 	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 March 	10, 	1992, 	the charge would be dismissed.
On March 	8, 	1992, 	you filed an amended charge by certified mail.
The amended charge does 	not, 	however, 	contain significant
additional 	facts 	not 	already 	contained 	in your original 	charge.
The 	amended 	charge 	emphasizes 	your allegations 	that 	UTLA Area
Representative Tavlin was 	"inadequately 	informed," 	did 	not
"competently" 	present your case at the Step 	I 	meeting, 	and
"failed to 	ensure" 	a Step 	II 	meeting 	(which apparently was 	not
scheduled because the District was 	short of 	staff). 	At most,
however, 	these allegations would 	suggest 	negligence 	on Tavlin's
part, 	which would not constitute a breach of UTLA's duty.
The 	amended 	charge 	also 	emphasizes 	your 	allegation 	that 	in
Tavlin's 	letter of August 	1, 	1991, 	she told you 	"absolute lies."
The alleged 	"lies" 	concerned Tavlin's 	understanding of 	your
willingness 	to consider retirement 	from the 	District. 	Tavlin's
letter, 	however, 	was addressed to you alone. 	If it 	incorrectly
represented your willingness 	to 	retire, 	you had 	the 	opportunity
to 	correct Tavlin's 	expressed understanding. 	Tavlin 	said 	she
would not 	sign any document 	for you, 	and 	she did not do 	so. 	It
therefore 	is 	still 	not apparent how Tavlin or UTLA acted 	in bad
faith.
The amended charge does 	not 	state a prima 	facie violation of 	the
EERA. 	I 	am therefore dismissing the 	charge 	based on the 	facts
and 	reasons 	contained 	in this 	letter and 	in my March 	2 	letter.

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CO-58 3
March 16, 	1992
Page 2
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 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
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 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 	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).

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CO-583
March 16, 	1992
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,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas 	J. Allen
Regional Attorney-
Attachment
cc: 	Roger Segure

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
March 2, 	1992
Lena 	Iggers 	Moszkowski
Re: 	WARNING LETTER, 	Unfair Practice Charge
No. 	LA-CO-583, 	Lena Iggers Moszkowski v.
United Teachers 	- 	Los Angeles
Dear Ms. 	Moszkowski:
In the above-referenced 	charge, 	you allege that United Teachers 	-
Los Angeles 	(UTLA) 	denied you the right to 	fair representation
guaranteed by Government Code 	section 	3544.9 	of 	the Educational
Employment Relations Act 	(EERA), 	in alleged violation of
Government Code section 3543.6(b) 	of the EERA.
My 	investigation of 	the 	charge reveals 	the 	following 	facts.
You have 	been 	employed by 	the 	Los 	Angeles 	Unified 	School 	District
(District) 	in a bargaining unit 	for which UTLA is 	the 	exclusive
representative. 	From December 	1990 	through March 	1991, 	you
requested 	that 	UTLA Area 	Representative 	Jeanni 	Tavlin 	file
several 	grievances 	on your behalf, 	but Tavlin refused to do 	so.
On February 25, 	1991, 	you requested that Tavlin represent you at
a 	"disciplinary conference" 	to discuss 	two 	classroom
observations, 	but Tavlin refused to represent you or to 	furnish
another UTLA representative. 	On March 	6, 	1991, 	Tavlin told you
to 	revise 	a 	letter 	to your principal 	that 	you had drafted 	in your
own defense, 	or else she would not represent you.
. .
On May 7, 	1991, 	Tavlin represented you at a meeting with your
principal. 	Tavlin told you not to 	speak 	in your own defense. 	At
the meeting, 	your principal 	gave you a Notice of 	Unsatisfactory
Act 	and 	a 	Below Standard 	Performance 	Evaluation. 	On May 	20,
1991, 	Tavlin filed two grievances 	on your behalf. 	At the Step 	I
grievance meeting on June 	13, 	1991, 	Tavlin told you not to 	speak
and not to present your own written defenses 	or defense 	exhibits.
In May and June of 	1991, 	Tavlin repeatedly tried to persuade you
to 	accept 	a 	settlement with the 	District that would 	include 	your
retirement. 	On July 23, 	1991, 	the District offered such a
settlement to Tavlin in writing. 	On July 31, 	1991, 	you informed
Tavlin by 	fax 	that 	the 	offer was 	unacceptable 	to you and 	that 	she
should not 	sign any agreements 	or papers 	for you. 	Tavlin
responded with a 	letter acknowledging your 	fax 	and 	stating, 	"I
__	-_--

Warning 	Letter
LA-CO-583
March 2, 	1992
Page 2
will not, 	as you requested in your fax to me today, 	sign any
document 	for you."
On August 	1, 	1991, 	UTLA Secretary and Grievance Review Committee
Chair Jim V. 	Weber 	sent 	you a 	letter concerning your two
grievances, 	stating in part as follows:
Upon 	careful 	review of 	the 	contract 	language
and 	all 	the 	available material 	related 	to
your case, 	UTLA has decided not to proceed 	in
the above matter. 	However, 	you have the
right to appeal 	this decision to the
Grievance 	Review Committee 	of 	UTLA.
On September 	19, 	1991, 	you appeared before the UTLA Grievance
Review Committee, 	which 	insisted that you 	talk only about the
substance of your grievances. 	On October 9, 	1991, 	the Committee
informed you by 	letter of 	its 	decision not 	to arbitrate 	the
matter and to close the case. 	On October 	14, 	1991, 	the Committee
further 	informed you 	that 	"[a]11 	avenues 	under the 	LAUSD-UTLA
Collective 	Bargaining Agreement 	have 	been 	exhausted" 	and 	that
"[y]our only course of action now is 	in civil 	court."
Meanwhile, 	at 	some point 	in time you went on Industrial 	Leave
from the District. 	On August 	19, 	1991, 	you informed UTLA
Secretary Weber that you were 	"very distressed" 	that 	you had 	not
received a placement 	for the 	1991-92 	school year, 	which began on
August 	16, 	1991. 	You asked that UTLA 	"take 	immediate action to
correct this wrong." 	UTLA did not respond to this 	request, 	but
on September 	3, 	1991, 	the District 	informed you that you were
assigned 	to Marina 	Del 	Rey Junior 	High 	School 	as 	of 	September 	10,
1990, 	and that 	this would remain your assignment until you
returned 	from 	leave, 	so 	long as 	you returned by February 	27,
1992.
You filed your charge on December 2, 	1991.
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.
Government Code 	section 	3541.5(a)(1) 	states 	that 	PERB 	"shall 	not
. 	. 	. 	issue a complaint in respect of any charge based upon an
alleged unfair 	practice 	occurring 	more 	than 	six 	months 	prior 	to
the 	filing of 	the 	charge." 	UTLA's 	alleged 	failures 	and refusals
to represent you prior to June 	2, 	1991, 	are therefore outside
PERB's 	jurisdiction.

Warning 	Letter
LA-CO-583
March 2, 	1992
Page 3
You have alleged that UTLA, 	as 	the 	exclusive 	representative,
denied you 	the 	right 	to 	fair 	representation guaranteed by 	EERA
section 	3544.9 	and thereby violated EERA 	section 	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.
.. .
A union may 	exercise 	its 	discretion to
determine how far to pursue 	a 	grievance on
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. 	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 how UTLA's 	conduct, 	including 	its decision not
to 	arbitrate your grievances, 	was without a rational basis,
devoid of honest 	judgment, 	discriminatory, 	or in bad 	faith. 	Your
charge 	asserts 	that 	UTLA discriminated 	against 	you 	based 	on your

Warning 	Letter
LA-CO-583
March 2, 	1992
Page 4
age, 	but there are no alleged facts 	that demonstrate that your
age played an 	inappropriate role 	in UTLA's 	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 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
Charge. 	contain all 	the 	facts 	and allegations you wish to make,
- -	and 	must 	be 	signe	- d 	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 March
10, 	1992, 	I shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney