United Teachers - Los Angeles (Wyler) (PERB 0970E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LORRAINE WYLER,
Charging 	Party,
v.
UNITED TEACHERS 	- 	LOS ANGELES,
Respondent.
)
)
) 	Case No. 	LA-CO-599
PERB Decision No. 	9/0
February 8, 	1993
)
)
)
)
)
)
Appearance: 	Paul Wyler, 	Attorney, 	for Lorraine Wyler.
Before Hesse, 	Chairperson; 	Carlyle and Blair, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Lorraine Wyler of
a Board agent's 	dismissal 	(attached hereto) 	of 	her 	charge 	that
the United Teachers 	- 	Los Angeles breached its duty of 	fair
representation in violation of 	section 3543.6(b) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA).1 The 	Board has
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA 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.
EERA section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
_____ )

considered 	the 	entire 	record 	in this 	case. 	We have 	reviewed the
dismissal and, 	finding 	it 	to be 	free of prejudicial 	error, 	adopt
it as 	the decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	LA-CO-599 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Carlyle 	and Blair 	joined 	in 	this 	Decision.
certified as 	the 	exclusive 	representative 	for
the 	purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the 	appropriate unit.
22

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
PERB
August 7, 	1992
Paul Wyler, 	Esq.
Los Angeles 	Office of Appeals
Unemployment 	Insurance Appeals
300 S. 	Spring St., 	Rm. 	1502
Los Angeles, 	CA 90013-1204
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Unfair Practice Charge No. 	LA-CO-599, 	First Amended Charge
Lorraine Wyler v. 	United Teachers 	- 	Los Angeles
Dear Mr. 	Wyler:
In the above referenced charge, 	which was 	filed on June 	26, 	1992,
Mrs. 	Wyler alleges 	that United Teachers 	- 	Los Angeles 	(UTLA or
union) 	failed as 	an exclusive representative to 	fairly represent
her 	in dealing with 	the Los Angeles 	Unified 	School 	District
(District), 	in alleged violation of Government Code 	section
3543.6 	of the EERA.
I 	indicated to you 	in my attached letter dated July 24, 	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 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
July 31, 	1992, 	the charge would be dismissed.
On July 	31, 	1992, 	the Charging Party 	filed a First Amended
Charge. 	It 	is 	similar to the 	initial 	charge but contains 	some
additional allegations, 	which I will state in this 	letter, 	in
support of 	the 	argument that 	the union violated 	the 	duty of 	fair
representation 	(DFR). 	It is alleged that Mrs. 	Wyler, 	during the
1989-91 	school years, 	performed more than 	100 days 	of 	service
each year 	as 	a 	substitute teacher and adult 	education 	teacher 	for
the 	District. 	Regarding the 	settlement 	in August 	1991 	of 	the
grievance 	involving the May 	1991 	Inadequate Service 	Report 	(ISR),
it 	is 	alleged that 	the 	settlement would not have 	been offered 	(by
the 	District) 	"had the 	charging party been present 	at 	the
scheduled grievance 	hearing and presented her evidence; 	a 	more

Dismissal 	and Refusal 	to 	Issue 	Complaint
LA-CO-599
August 7, 	1992
Page 2
favorable outcome would have 	taken place."1 This 	appears 	to be
mere 	speculation by the Charging Party. 	It 	is 	also alleged that
Mrs. 	Wyler 	"reluctantly agreed to 	accept 	the 	settlement. 	She
relied upon the alleged 	'superior' 	acknowledge 	(sic) 	and
experience of 	the 	employee 	organization 	in these 	types 	of
matters. 	She 	feared that 	if 	she did not 	accept the 	settlement,
the 	employee 	organization would not 	process 	her 	grievance
diligently, 	if 	further proceedings were required."
It 	is 	also newly alleged that 	the 	incidents2 "are evidence of 	the
bad 	faith 	and 	arbitrary 	action of 	the 	employee 	organization which
constantly pays 	lesser attention to 	the rights 	of 	its 	substitute
teachers." 	(emphasis 	in original.) 	This 	latter allegation
appears 	to be Charging Party's 	conclusion with 	little 	factual
support offered here. 	In addition, 	it is alleged that on
April 	21, 	1992, 	after the Grievance Review Committee 	(GRC)
indicated on April 	10, 	1991 	that 	it would not arbitrate 	the
matter of the September 	1991 	ISR, 	the Charging Party 	sent a
letter to 	UTLA President 	Helen 	Bernstein 	requesting 	"she
reconsider, 	allow the grievance to go to arbitration, 	and
expressing outrage 	that 	no 	reason was 	given 	for 	the decision not
to proceed." 	Mrs. 	Wyler has not received an answer.
It appears that by letter dated September 30, 	1991 	to Mrs. 	Wyler,
the District referred to 	ISR's 	in 	1984, 	May 	1991 	and September
1991 	(a total of 3 ) . 	This letter by Robert Fisher, 	Coordinator
for Certificated Substitute Assignments, 	indicated in part, 	"In
my letter to you dated May 21, 	1991, 	I 	advised you that receipt
by you of 	an additional 	Inadequate 	service 	report would 	result 	in
a 	complete 	service 	fitness 	review. 	Therefore, 	be advised that
said 	review process 	has 	now been 	requested 	to determine whether
you 	should be dismissed as 	a 	substitute 	teacher." 	Thereafter,
arguably due to ISR's 	in 	1980, 	1984, 	May 	1991 and September 	1991,
on October 	18, 	1991, 	Charging Party was dismissed by the District
from 	substitute 	status. 	Mrs. 	Wyler alleges 	that UTLA advised her
that 	she 	could 	send 	in an 	"appeal" 	letter. 	She 	further alleges
that 	the 	union failed to 	advise 	her 	that 	a 	grievance 	could be
1As indicated on page 	1 	of 	the attached letter dated
July 24, 	1992, 	the Charging Party was 	not present at the July
1991 	grievance 	hearing due 	to her 	being 	given an 	incorrect
address 	for the 	hearing by 	UTLA.
2This 	includes 	providing 	an 	erroneous 	address 	for 	the 	July
1991 	grievance hearing, 	and urging Mrs. 	Wyler to accept the
settlement 	in August 	1991.

Dismissal 	and Refusal 	to 	Issue Complaint
LA-CO-599
August 7, 	1992
Page 3
filed 	for 	"reprisal".3 She 	contends 	that 	UTLA 	"knew about 	this
procedure 	and withheld 	it 	from 	charging party 	in bad 	faith."
(emphasis 	in original.) 	Finally, 	it 	is 	alleged in the amended
charge that 	"The 	failure 	of 	the 	employee organization to provide
a 	reason 	for 	its 	decision not 	to proceed to 	arbitration, 	together
with the previous 	course of 	conduct 	is 	evidence 	of 	its 	arbitrary
action, 	its bad faith 	in handling the matter, 	and further
evidence of 	its 	disrespect 	for the rights 	of 	its 	substitute
teacher members." 	(emphasis 	in original.)
The 	First Amended Charge does 	not 	state 	a prima 	facie violation
of EERA 	(the duty of 	fair representation) 	for the 	reasons
indicated in the letter dated July 24, 	1992. 	In addition, 	much
of 	the amended 	charge 	contains 	conclusory, 	speculative
allegations without 	supporting 	facts. 	Pleading or raising a bare
allegation without 	sufficient 	supporting 	facts 	is 	insufficient
for purposes 	of 	alleging a prima 	facie 	case. 	California 	State
University 	(Pomona) 	(1988) 	PERB Decision No. 	710-H. 	Furthermore,
PERB regulation 32615 	(California Code of Regulations, 	title 	8,
section 32615) 	requires 	that a charge contain 	"a clear and
concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to 	constitute
an unfair practice." 	The Charging Party must allege with
specificity who, 	what, 	when, 	where and how the union's activities
were arbitrary, 	discriminatory, 	or in bad faith. 	Mere
speculation, 	conjecture or legal 	conclusions 	are 	insufficient.
Aside from the fact that 	some of the charge 	is untimely, 	Mrs.
Wyler has 	not 	established with 	facts 	that 	the union 	intentionally
acted against her with an unlawful 	motive, 	by the 	conduct 	that
has been alleged. 	The various 	acts described, 	even if
negligent,4 do 	not 	show that 	UTLA acted 	in an arbitrary,
discriminatory, 	or bad faith manner. 	Thus, 	a prima facie case
has 	not been alleged.
Therefore, 	I 	am dismissing the 	First Amended Charge based on the
facts 	and reasons 	contained above and 	in my July 	24, 	1992 	letter.
3Article V, 	section 	1.1 	of 	the Agreement between UTLA and
the District, 	provides, 	in part, 	that claims of discrimination
based upon UTLA affiliation 	(prohibited by Article VII) 	are
subject to the grievance procedure. 	Also, 	Article X, 	section
7.0, 	regarding Inadequate Service by Substitutes, 	indicates 	in
part that 	"In addition to 	the grievance procedure, 	the 	employee
may attach a written response 	to 	the report within ten working
days 	from date 	received." 	Substitute 	Employees 	are 	also
discussed 	in Article XIX.
4Negligence will 	not 	violate 	the duty of 	fair
representation.

Dismissal 	and Refusal 	to 	Issue Complaint
LA-CO-599
August 7, 	1992
Page 	4
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
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.)

Dismissal 	and Refusal 	to 	Issue 	Complaint
LA-CO-599
August 7, 	1992
Page 5
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 muc 1. HomesMarc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	Helen Bernstein, 	President, 	UTLA

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
July 24, 	1992
Paul Wyler, 	Esq.
Los Angeles Office of Appeals
Unemployment 	Insurance 	Appeals
300 S. 	Spring St., 	Rm. 	1502
Los Angeles, 	CA 90013-1204
Re: 	WARNING LETTER, 	Unfair Practice Charge
No. 	LA-CO-599, 	Lorraine Wyler v. 	United Teachers -
Los Angeles
Dear Mr. 	Wyler:
In the above referenced charge, 	which was 	filed on June 26, 	1992,
Mrs. 	Wyler alleges 	that United Teachers 	- 	Los Angeles 	(UTLA or
union) 	failed as 	an exclusive representative to 	fairly represent
her 	in dealing with the 	Los 	Angeles 	Unified 	School 	District
(District), 	in alleged violation of Government Code section
3543.6 of the EERA.
My investigation and the 	charge reveal the 	following 	facts. 	Mrs.
Wyler has been employed by the District for over twelve 	(12) -
years 	as 	a 	substitute teacher. 	She received an Inadequate
Service Report 	(ISR) 	for Day-to-Day Substitute Teacher on May 	8,
1991 	for her conduct at Banneker Special 	Education Center which
contained multi-handicapped 	students. 	The 	ISR stated 	in part,
"We have a genuine concern about Mrs. 	Wyler's health and welfare.
We 	also have 	a 	concern about 	her ability 	to 	handle 	and 	control
the behaviors 	of 	some 	of 	our more difficult 	students." 	On May
28, 	1991, 	UTLA, 	through its representative, 	Dot DeLeon, 	filed a
grievance on behalf of Mrs. 	Wyler. 	On June 	10, 	1991, 	Ms. 	DeLeon
gave Mrs. 	Wyler the date, 	time and address 	for the grievance
hearing set for July 24, 	1991. 	On July 24, 	1991, 	you and Mrs.
Wyler went to the hearing but 	learned that Mrs. 	Wyler was 	given
an incorrect address, 	some distance 	from the 	correct hearing
location. 	Based on the incorrect information, 	Mrs. 	Wyler could
not be present 	and did not present her evidence 	at 	the 	hearing.
Therefore, 	on July 26, 	1991, 	the District notified UTLA and Mrs.
Wyler that the grievance would be denied. 	On August 	15, 	1991, 	the
District 	offered 	to 	resolve/settle 	the 	grievance 	by 	indicating
that the 	ISR would be 	"sunset" 	after one year as 	long as 	there
were 	no 	other 	ISR's 	issued during this 	period. 	Dot 	DeLeon urged
Mrs. 	Wyler to accept this 	settlement. 	Mrs. 	Wyler felt the
settlement contained a 	"trap" 	and was 	not wise. 	But based upon
the union's 	advice, 	the 	settlement was 	accepted by Mrs. 	Wyler and
put 	into 	effect 	around August 	1991.
: 	i

Warning 	Letter
LA-CO-599
July 24, 	1992
Page 2
The 	Charging 	Party 	contends 	that 	UTLA breached 	its 	duty 	of 	fair
representation 	(DFR) 	by giving the 	erroneous address 	for the
hearing, 	thus preventing Mrs. 	Wyler from presenting her evidence.
Further, 	Mrs. 	Wyler contends 	that UTLA acted in bad 	faith 	in
urging her to accept 	the 	settlement.1
On September 	11, 	1991, 	Mrs. 	Wyler received a new ISR for her
conduct 	at Bethune Middle 	School where 	she 	taught 	seventh 	grade 	-
Core 	students. 	It 	is 	alleged that the 	ISR lacked merit. 	The 	ISR
mentioned, 	in part, 	Mrs. 	Wyler's alleged failure to attend a
faculty meeting, 	alleged 	failure to 	submit 	daily 	counts 	to 	the
counseling office, 	and alleged 	failure to keep grades 	for
students. 	UTLA filed a grievance on or about September 28, 	1991.
It was denied at Steps 	1 and 2. 	On January, 	27, 	1992, 	the union
advised the District that 	it was 	referring the matter to 	the
District for arbitration, 	subject to action of UTLA's Grievance
Review Committee 	(GRC). 	On February 26, 	1992, 	the GRC,
apparently based 	solely on 	its 	review of 	the 	file, 	decided that
this 	matter would not 	go 	to arbitration. 	No 	reason was 	given but
Mrs. 	Wyler was 	allowed to appear at a 	further hearing before the
GRC 	to appeal 	or discuss 	the matter. 	She appeared and presented
her evidence to the GRC on April 8, 	1992. 	On April 	10, 	1992, 	the
GRC advised Mrs. 	Wyler that 	its decision was 	not to go to
arbitration. 	No reason was provided. 	Within a week or so, 	the
Charging Party 	sent a 	letter to 	UTLA indicating that 	the decision
was 	wrong 	and 	she 	asked 	the 	President of 	UTLA to 	reconsider 	and
provide a reason for the decision. 	Mrs. 	Wyler has 	not received
an answer to her 	letter.
The Charging Party 	contends 	that 	the GRC's 	failure 	to 	give 	a
reason for 	its 	decision 	shows 	the 	arbitrariness 	of 	its 	action and
further violated 	its 	duty of 	fair representation 	to 	the 	charging
party. 	She believes 	that the rights 	of 	substitute 	teachers 	were
ignored by UTLA. 	Recently, 	you advised me that 	conduct of 	the
union 	in providing the 	incorrect address 	for the hearing, 	in
recommending a 	settlement with a 	"trap", 	and 	in not providing a
reason for deciding against arbitration on April 	10, 	1992 	show a
course of 	conduct 	by UTLA 	in giving 	less 	consideration 	for
substitute teachers 	than for regular teachers. 	You also
indicated 	that 	UTLA's 	conduct 	occurring outside 	the 	6 	month
statutory period was 	alleged mainly 	to 	show a 	course 	of 	conduct,
and 	not to 	show separate violations 	of 	the duty of 	fair
representation.
1Mrs. Wyler believes 	the 	settlement 	contained 	a 	concealed
trap. 	That is, 	if the District issued subsequent ISR's, 	even if
they 	lacked merit, 	the May 	8, 	1991 	ISR would be revived.

Warning 	Letter
LA-CO-599
July 24, 	1992
Page 3
This 	charge does 	not 	state 	a prima 	facie violation of 	EERA within
PERB's 	jurisdiction for the reasons which 	follow. 	This 	case
involves 	a possible violation of 	the duty of 	fair 	representation
found 	in EERA 	section 	3544.9, 	as 	enforced through 	section
5343.6(b). 	Section 3544.9 states:
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.2
EERA does 	not 	allow a 	complaint to 	issue 	regarding 	a 	charge 	based
upon an alleged unfair practice 	occurring more 	than 	six 	months
prior to the 	filing of the charge. 	EERA section 3541.5(a)(1).
It is 	the charging party's burden, 	as part of the prima 	facie
case, 	to prove the charge was timely filed. 	Furthermore, 	there
is 	no 	longer any equitable 	tolling of 	the 	six month 	limitations
period. 	The Regents 	of the University of California 	(1990) 	PERB
Dec. 	No. 	826-H. 	This charge was filed on June 26, 	1992.
Therefore, 	we may only consider alleged unlawful 	conduct 	of 	the
union occurring after on or about December 26, 	1991. 	Therefore,
all 	allegations 	of 	unlawful 	conduct by UTLA occurring before 	this
date, 	are untimely and will be dismissed. 	However, 	they will be
used 	as 	background 	for 	judging the union's 	conduct during 	the
period beginning December 26, 	1991.
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 	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
2UTLA and the 	District 	are parties 	to 	a 	collective
bargaining agreement 	(Agreement) 	effective June 26, 	1989 	through
June 30, 	1991. 	I 	note that Article I, 	section 	1.1 	excludes 	from
the bargaining unit, 	in part, 	all day-to-day substitutes who were
paid 	for 	fewer 	than 	100 	days 	during the preceding 	school 	year.
Without deciding the 	issue here of whether UTLA owes 	Mrs. 	Wyler a
duty, 	if you wish to proceed with this 	charge, 	you will need to
allege 	facts 	showing that 	she qualifies 	and 	is 	a member of 	the
bargaining 	unit 	during 	the 	relevant period.

Warning 	Letter
LA-CO-5 9 9
July 24, 	1992
Page 4
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.]
The Agreement states at Article V, 	section 	11.0, 	Request for
Arbitration:
If the grievance is not settled in Step Two, 	UTLA, 	with
the 	concurrence of 	the grievant, 	may 	submit the matter
to 	arbitration by a written notice to 	the 	District's
office of Staff Relations within five 	(5) 	days 	after
termination of Step Two 	(emphasis added).
The Agreement 	appears 	to 	allow the union the discretion to 	submit
matters 	to arbitration with the 	concurrence of the grievant. 	It
does 	not 	say 	that 	the union must 	submit the matter 	to
arbitration. 	This 	charge does 	not 	show that the union's 	conduct
in denying arbitration was 	arbitrary, 	discriminatory, 	or in bad
faith. 	As 	seen above, 	mere negligence or poor 	judgment 	in
handling 	a 	grievance does 	not 	constitute 	a breach of 	the union's
duty. 	It also appears that UTLA allowed Mrs. 	Wyler to appeal and
present her 	evidence 	to 	the GRC prior to 	reaching 	its 	final
decision not to arbitrate. 	The allegation that Mrs. 	Wyler was
not given a 	reason or 	explanation by UTLA does 	not 	show that 	the
union has 	acted 	in an arbitrary, 	discriminatory, 	or bad 	faith
manner. 	The 	cases 	quoted 	above 	indicate that the burden 	is 	on a

Warning 	Letter
LA-CO-599
July 24, 	1992
Page 5
Charging 	Party 	to 	show how the 	exclusive 	representative 	abused
its discretion, 	and not on the exclusive representative 	to 	show
how it properly 	exercised 	its 	discretion. 	The 	case of 	United
Teachers-Los Angeles 	(Vigil) 	(1992) 	PERB Dec. 	No. 	934 is in
accord with 	the 	proposition 	that 	the union's 	not providing 	a
reason for 	its denial of a request to pursue a grievance to
arbitration, 	does not, 	by itself, 	constitute arbitrary,
discriminatory or bad 	faith conduct 	in violation of 	the duty 	of
fair 	representation.
Even 	if 	the 	conduct 	in providing an 	incorrect address 	was 	timely,
negligence by 	UTLA will 	not violate 	the duty of 	fair
representation. 	Similarly, 	even if the union's 	conduct 	in
recommending the 	settlement of 	a grievance, 	which 	included a
"sunset" provision, 	was timely, 	Mrs. 	Wyler has not alleged facts
showing that the union's 	conduct was dishonest, 	without a
rational basis, 	or in bad faith. 	It appears the union
representative 	supported the proposed 	settlement. 	There are 	no
facts 	alleged 	indicating that Mrs. 	Wyler was 	forced to accept 	the
settlement, 	or that the union concealed the 	"sunset" 	provisions.
If Mrs. 	Wyler objected to the settlement as a whole, 	it appears
she could have rejected it. 	Even if UTLA was negligent 	in
recommending the 	settlement, 	this will not violate the duty. 	I
also 	find 	that 	you 	have 	not 	alleged 	facts 	demonstrating 	that UTLA
has 	acted 	intentionally 	to 	ignore the 	rights 	of 	all 	substitute
teachers.
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 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 July 	31, 	1992, 	I
------shall dismiss 	your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
/7,/: C 	I /} ,( 	rj---.,.,#fl-, 	', 	ff7'1✓ ~-t.,i/ (
·,.---
Marc S. 	Hurwitz
Regional 	Attorney