Service Employees International Union (Scates) (Pitts) (PERB 0341E)

STATE 	OF 	CALIFORNIA
DECISION OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN 	C. 	SCATES,
Charging 	Party,
v.
LOS 	ANGELES 	CITY AND 	COUNTY SCHOOL
EMPLOYEES 	UNION, 	LOCAL 	99, 	SERVICE
EMPLOYEES 	INTERNATIONAL 	UNION, 	AFL-CIO,
Respondent.
Case 	No. 	LA-CO-234
PERB 	Decision 	No. 	341
August 	29~ 	1983
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_____________________ )
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SHIRAL 	PITTS,
Charging 	Party,
v.
LOS 	ANGELES 	CITY AND 	COUNTY SCHOOL
EMPLOYEES 	UNION, 	LOCAL 	99, 	SERVICE
EMPLOYEES 	INTERNATIONAL 	UNION, 	AFL-CIO,
Respondent.
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_____________________ )
Case 	No. 	LA-C0-235
Appearances: 	John 	c. 	Scates 	and 	Shiral 	Pitts, 	representing
themselves.
Before 	Tovar, 	Jaeger, 	and 	Morgenstern, 	Members.
DECISION AND 	ORDER
JAEGER, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on 	exceptions 	filed 	to 	the
administrative 	law 	judge's 	attached 	dismissal 	without 	leave 	to
amend 	of 	the 	charging 	parties' 	unfair 	practice 	charges 	alleging
that 	Service Employees 	International 	Union, 	Local 	99, 	AFL-CIO,

violated 	subsections 	3543.6(a), 	(b), 	and 	(c) 	of 	the 	Educational
Employment 	Relations 	Act.
After 	a 	review 	of 	the 	entire 	record 	in 	this 	matter, 	the
Board 	adopts 	the 	attached 	dismissal 	as 	the 	decision 	of 	the
Board 	itself. 	Accordingly, 	the 	unfair 	practice 	charges, 	Case
Nos. 	LA-C0-234 	and 	LA-C0-235, 	are 	hereby DISMISSED without
leave 	to 	amend.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	Decision.
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C.:OU?.T PA?!!:R
:ifATC 0~ C'At.,i#"O=f~
PUBLIC 	EMPLOYMENT. RELATIOi.~S 	BOARD
OF 	THE 	STATE 	OF CALIFO~IA
JOHN 	C. 	SCATES ,
Charqir:g 	Party,
v.
LOS 	.~.NGELES 	CITY 	lu'lD 	COON TY
SCHOOL EMPLOYEES 	UN ION,
LOCi.L 	99, 	SERVICE 	EMPLOYEES
INTER..'lATIONAL iJNION, 	AFL-CIO,
Respondent.
Ca3~ 	IT9. 	-LA-C0-234
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__________________ )
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SIIIR;L 	PITTS,
Charging ·party,
v.
LOS 	ANGELES 	CITY 	A.~D 	COUNTY
SCHOOL EMPLOYE3S 	UNION,
LOCAL 	99, 	SERVIC~ EMPLOYEES
INTER:.'lATIONAL UNION, 	AFL-CIO,
Respondent.
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__________________ )
Case No. 	LA-CO-235
ORDER GRA'l TING MOTION
TO 	DISMISS, 	DENYING
MOTION 	TO 	DISQOALIFY,
AND 	CANCELLING FOR.lf.i\L
EEli..RllTG
{2/4/83}
NOTICE 	IS 	HEREBY GIVEN 	that 	the 	above-captioned 	unfair
practice charges 	are 	dismissed 	and 	the 	complaints 	are
withcrawn.
This 	action 	is 	taken 	on 	the 	ground 	that 	the 	charges 	fail 	to
state a 	prima 	facie 	violation 	of 	the 	Educational Employment
Relations 	Act 	{hereafter 	EERA).l
lGovernment 	Code 	section 	3540 	et 	seq. 	All 	statutory
references 	herein 	are 	to 	the 	EERA 	unless 	otherwise 	noted •

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COURT PAPE:R 	lI
STAT!£' 0,. CAU,,0llf......, 	I
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BACKGROUND
On 	April 	21, 	1982, 	John 	C. 	Scates 	filed 	an 	unfair 	practice
charge 	against 	the 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 	99, 	Service 	Employees 	International 	Union, 	AFL-CIO
(he.:-eafter 	Local 	99 	or 	the 	Union}, 	alleging 	a 	violation 	of
section 	3544.92 	In 	support 	of 	his 	charge, 	Scates, 	who 	is
classified 	as 	a 	~eavy 	bus 	driver, 	alleges, 	among 	other 	things,
that 	on 	or 	about 	February 	5, 	1981, 	he 	was 	removed 	from 	late 	bus
duty 	by 	his 	employer 	Los 	Angeles 	Unified 	School 	District
(hereafter 	District} 	while 	the 	District 	conducted 	an
investigation of 	an 	incident 	involving 	him 	that 	occurred 	on
that 	same 	date. 	Subsequently, 	he 	was 	issued 	an 	unsatisfactory
or 	"U-notice" 	on 	March 	23, 	1981. 	On 	that 	same 	date. 	he 	filed 	a
grievance with 	the Union 	against 	the 	District. 	He 	further
alleges 	that 	on 	September 	25, 	1981, 	he 	"discovered 	that 	the
'U-notice' 	had 	been 	repealed 	in 	arbitration, 	but 	that 	the
overtime 	issue 	from 	missed
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2Section 	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.
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COURT·PAPER
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late 	buses 	was 	c0mpletely 	ignored." 	Additionally, 	he 	alleges
that 	as 	of 	the 	cate 	that 	the 	charge 	was 	filed, 	he 	had 	not 	been
reinstated 	to 	~v~rtirne 	status.
On 	April 	2l, 	1982, 	Shiral 	Pitts, 	who 	likewise 	is 	classified
as 	a 	heavy-bus 	driver, 	also 	filed 	an 	unfair 	practice 	charge
against 	Local 	39, 	identical 	in 	all 	respects 	to 	the 	Scates
charge, 	but 	ad::itionally 	alleging 	that 	on 	o::: 	about 	May 	8,
1981, 	she 	was 	transferred 	to 	a 	bus 	run 	in 	another 	area,· and 	in
March 	1982, 	she 	was 	transferred 	again without 	benefit 	of 	the
bidding 	procedure.
In 	respons;i 	to 	a 	letter, 	dated 	April 	28, 	1982, 	·from the
Public Employment 	R~lations 	Board 	(hereafter 	PERB 	or 	Board)
regional 	attorney, 	noting 	certain 	deficiencies 	in 	the 	charges,
the 	charging 	parties 	filed 	identical amendments 	on May 	20,
1982. 	The 	amend~ents 	are 	set 	forth 	in 	their 	entirety 	as
follows:
1. 	The 	l~tter 	of 	Oct. 	12, 	1981 	from 	Clarence 	R.
Luckey, 	Business 	Representative 	to 	Steven
Escoboza, 	Sr. 	Division 	Personnel
Representative 	L.A.U.S.D.
2. 	On 	Dec. 	1981 	I 	called my 	Business
Representative 	3 	or 	4 	times; 	in 	Jan. 	1982 	I
did 	likewise 	2 	or 	3 	times; 	in 	March 	1982 	I
did 	likewise 	3 	or 	4 	times; 	on April 	30, 	1982
I 	again 	called 	in 	re£erence 	to 	the 	above
mentioned 	letter 	of 	Oct. 	1981.
3. 	It 	was 	not 	until 	Sept. 	25, 	1981 at 	a 	General
Membership Meeting 	of 	Local 	99 	located 	at
2724 W. 	8th 	St. 	that 	I 	was 	given 	the
decision 	rendered 	by 	arbitration 	dated
Septe~ber 	7, 	1981.
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4. 	This 	c~arge 	is 	amended 	to 	include 	3543.6 	of
the 	~cucational 	Employees 	Relations 	Act
subse~tions 	a, 	b, 	and 	c. 	disputes.3
On 	June 	29, 	1982, 	complaints 	were 	issued 	and 	the 	two 	cases
consolidated 	for 	informal 	conference 	purposes 	only. 	On 	July
16, 	1982, 	the 	union 	filed 	its 	answer. 	An 	informal 	settlement
conference 	was 	held 	on August 	9, 	1982, 	but 	the 	parties were
unable 	to 	resolve 	th~ir 	disputes.
On 	September 	21, 	1982, 	the 	Chief 	Administrative 	Law 	Judge
consolidated 	the 	complaints 	for 	further 	processing, 	and 	noticed
a 	formal 	heari~g 	for 	November 	15, 	16, 	and 	18, 	1982. 	Prior 	to
the 	hearing 	date, 	Local 	99 	requested, 	with 	the 	concurrence 	of
the 	charging 	p=.rties, 	a 	continuance which 	was granted, 	on
November 	10, 	1982. 	The 	case 	was 	reset 	for 	hearing 	on 	January
5, 	6, 	and 	7, 	198 3.
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COURTPAPl!<R
~TA1'1t o• CAI..IPOlt~
3Section 	3543 .6 	states, 	in 	pertinent 	part 	that:
It 	shall 	be 	ui1lawf 1
.tl 	for 	an 	employee
organization 	to:
(a) 	Cause 	or 	attempt 	to 	cause a 	public
school 	employer 	to 	violate 	Section 	3543 .5.
(b) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	e~ployees, 	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.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	a 	public 	school employer 	of
any 	of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
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On 	November 	16, 	1982, 	the 	Union 	filed 	a 	motion 	to
particularize 	which 	was 	granted, 	and 	an 	order 	to 	particularize
was 	issued 	on 	December 	10, 	1982 •
On 	December 	23, 	1982, 	charging 	parties 	filed 	a 	response 	to
the 	order, 	which 	stated, 	among 	other 	things, 	that 	the 	Union,
through 	its 	business 	representative 	Clarence 	Luckey, 	was
involved 	in 	the 	processing 	of 	the 	grievances 	filed 	by 	both
charging 	parties, 	and 	that 	a 	collective· bargaining 	agreement
with 	an 	arbitration 	provision 	was 	in 	effect 	at 	the 	time 	the
grievances 	were 	filed. 	Otherwise, 	the 	response 	repeated 	the
allegations 	contained 	in 	the 	original charge. 	The 	Union
responded 	on 	December 	28, 	1982, 	with 	motions 	to 	strike, 	to
dismiss 	and 	for 	a 	continuance 	of 	the 	hearing.
On 	January 	5, 	1983, 	these 	motions 	were 	ruled 	on 	at 	a
pre-hearing 	conference held 	in 	lieu 	of 	the 	noticed 	hearing. 	It
as concluded 	that 	the 	responses 	to 	the 	order 	to 	particularize
ere 	non-reaponsive, 	and 	therefore charging 	parties were
ordered 	to 	file 	supplements 	to 	their 	responses. 	February 	7
and 	9, 	1983, 	were 	set 	as 	tentative 	dates 	for 	the 	formal
hearing.
On 	January 	10, 	1983, 	the 	charging 	parties 	filed 	a
supplement, 	to 	which 	was 	appended 	a 	copy of 	the 	arbitrator's
decision, 	dated 	September 	7, 	1981.
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COURTPAJ>£R
'STATl!t Ofl' CA~t11r:•~.J11. 	5

:i 	The 	su:;,pl-::::.ent 	to 	the 	response 	contained 	the 	following-
fac ':ual 	alleg=.t ions:
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STAT!E o• CAl..l'l':'-lilP:"IIILA
1. 	Am 	submitting 	fifteen 	(15) 	page
de-::ision 	in 	the 	matter 	of 	arbitration
involving 	the 	Pitts 	and 	Scates grievances •
2. 	In 	Re No. 	3543.6 (a)° Local 	99 	did
cause 	t~e 	Public 	School 	Employer 	to 	impose
reprisals 	on 	employee 	Pitts 	and 	Scates, 	"the
Dist~ict 	charged 	that 	on 	or 	about
February 	4, 	1981 	the 	grievants 	were 	observed
to 	be 	kissing 	and 	hugging." 	And 	that 	"the
activity 	took 	place 	while 	both 	drivers 	were
on 	duty 	an 	in 	a 	paid 	status." 	The 	District
concluded 	that 	th is 	conduct, 	"is
unprofessional and 	tends 	to 	lower 	the 	esteem
in 	which 	the 	service 	is 	held. 11
3. 	3543.G{b) 	Local 	99 	did 	discriminate
against 	employees 	Pitts 	and 	Scates 	in 	a
letter 	dated 	October 	12, 	1981 of 	a 	letter
submitted 	by 	Clarence 	R. 	Luckey, 	Business
Representative 	to 	Steven 	A. 	Escoboza, 	Senior
Divisional 	Pesonnel 	Representative. 	It 	is
of 	extreme 	importance 	to 	note 	that 	the
hearing 	was 	held 	on 	August 	25, 	1981 and 	that
employees 	Pitts 	and 	Scates 	were 	not
informed 	- 	and 	then 	only 	by 	the 	fact 	that
they 	protested 	and 	made 	inquiries 	at 	a
general 	membership 	meeting 	on 	September 	25,
1931 	- 	incicentally 	the 	last 	regular
membership meeting 	held 	at 	the 	Union Hall at
2724 	West 	8th 	Street.
4. 	3543.G{c) 	Local 	99 	Blatantly 	evaded
and 	avoided 	to 	represent 	employees Pitts 	and
Scates 	by 	the 	following 	documented 	evidence.
which 	we 	are 	prepared 	to 	testify 	under 	oath
and 	penalty of 	perjury namely: 	"During
December 	1981 employees 	Pitts 	and 	Scates
each 	called 	three 	or 	four 	times 	with 	direct
reference 	to 	the 	Union's 	action or 	better
still 	- 	inaction concerning 	our 	grievance.
In 	January, 	1982, 	employees 	Pitts 	and 	Scates
again 	called 	business 	representative 	two 	or
three 	times 	and 	against 	in 	March, 	198 2 	again
three 	or 	four 	times 	and 	o~ 	April 	30, 	1982 	I
again 	called 	to 	the 	above mentioned 	letter
of 	October 	12, 	1981."
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COURT PAP!!:!'!
ST'Al'E 0 .. CALl!ll'O•"""-A
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on J• 	In 	reply 	to 	attornev 	Jeffrey 	Paule
P:;:-~-e 	3 of 	his 	Motion 	for 	Continuance 	I
must 	call 	to 	his 	immediate 	attention 	and
scrutiny 	that 	beginning 	with 	lines 	12 	and
concluc.ing 	at 	line 	22 	that 	the 	above
mentioned 	facts 	in 	the 	four 	preceding
paragraphs 	are the 	alpha 	and 	omega 	of
3544.9, 	"shall 	fairly 	represent 	each 	and
every 	e~ployee 	in 	the 	appropriat~ 	unit."
The 	Union 	officials 	involved 	in 	this
travesty 	and 	sham have 	been 	with 	deliberate
intent 	derelict, 	delinquent 	and 	a 	total
disgrace 	to 	employes 	Pitts 	and 	Scates.
The 	arbitrator's 	decision 	shows 	that 	the 	only 	question
before 	the 	arbitrator 	was 	the 	District's 	issuance 	of 	the
"U-notices". 	In 	the 	event 	that 	the 	grievants 	prevailed 	on 	the
issue of 	the 	U-notices, 	the 	District I and 	the 	Unlon were 	to
review 	the 	District's 	overtime 	records 	to 	determine 	the
overtime 	and 	the 	associated 	transfer 	matters.
On 	January 	18, 	1983, 	Local 	99 	filed 	its 	answer 	to 	the·
particularized charge 	and 	a 	second 	motion 	to 	dismiss.
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DISCUSSION
Duty of 	Fair 	Represer1tation 	and 	the 	Allege:i 	3943 .:6 (b) 	Violation
For 	purposes 	of 	considering 	whether 	the 	above-captioned
unfair 	practice 	charges 	sta.te 	a 	pr ima 	facie 	violation of 	the
EERA, 	it 	will be 	assumed 	that 	all of 	the 	factual 	allegations
are 	true. 	San 	Juan 	Unified 	School 	District 	(3/10/77) 	PERB
Decision No. 	12.
Section 	3544.9 	of 	the EERA 	provides 	that 	an 	exclusive
representative 	nshall 	fairly 	represent 	each 	and 	every 	employee
in 	the 	appros:,riate 	unit." 	The 	PERB 	has 	interpreted 	this
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C~tJRTPAPER 	I
'$TATI!" OJ' CAL.:!IIClll'"-A
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section 	to 	cea:1 	':hat 	an 	exclusive 	represent-:ltive 	clearly 	has 	a
duty 	to 	repres~~= 	all 	employees 	in 	the 	unit 	fairly 	in 	meeting
ana 	negotiating, 	consulting 	on 	educational objectives, 	and
administerir.g 	~he 	written 	agreement. 	Service 	Employees
International 'J:-ii.on, 	Local 	99 	(10/19/79) 	PERB
Decision No. 	106.
An 	exclusi7e 	representative 	violates 	its 	duty 	of 	fair
representation 	when 	its 	conduct 	towards 	a 	member 	of 	the 	unit 	is.
arbitrary, 	discri~inatory, 	or 	in 	bad 	faith. 	Rocklin 	Teacher
Professional 	Association 	(3/26/80)
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PERB 	Decision No. 	124,
citing Vaca 	v. 	Sipes 	(1967) 	386 	U.S. 	171 	[64 	LRRM 	2369].
A violation. may 	occur 	both 	in contract negotiations, 	Steele
v. 	Louisville 	and 	Nashville 	Railroad 	(1944), 	323 	U.S. 	192 	[15
LRfu~ 	708], 	Ford 	Motor 	Co. 	v. 	Huffman 	(1953), 	354 	U.S. 	330 	[31
LRRM 	2548], 	anc 	in 	contract 	administration 	and 	grievance
processing, 	Conlev 	v. 	Gibson 	(1957), 	355 	U.S. 	41 	[41 	LRRM
1089], 	Humphrey 	v. 	Moore 	(1954}, 	375 	U.S. 	355 	[55 	LRRl.'1 2031},
Vaca 	v. 	Sines, 	supra, 	386 	U.S. 	171.
The NLRB 	and 	the 	courts 	have 	granted 	wide 	latitude 	to 	the
exclusive 	representative 	in 	the 	negotiation 	of collective
bargaining 	agreements. 	See 	Steele, 	supra. 	On 	the 	other 	hand,
the 	degree of 	discretion 	given 	the 	exclusive 	representative 	in
the 	enforcement 	of 	collective 	bargaining 	agreements 	is 	somewhat
more 	restricted. 	The 	Supreme 	Court 	in Vaca 	proclaimed 	that 	a
violation of 	duty 	would 	be 	found 	in 	arbitrary, 	capricious
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or 	bad 	faith 	actions. 	But 	it 	also 	made 	reference 	to
"pe.::functory" 	g~ ievance 	processing 	in 	such 	a 	way as 	to 	create
the•inference 	that 	"perfunctoriness" 	in 	h2.:1dling 	grievances
would 	be 	held 	ta~tarnount 	to 	arbitrariness, 	cap~iciousness 	or
bad 	faith. 	Orre 	cora.:ientator 	has 	stated 	that 	the 	Court's
phrasing 	of 	the 	standard 	"invite[sJ 	the 	finding 	of 	a 	violation
when 	injury 	is 	caused 	by 	union 	carelessness 	without 	more. n
Gorman, 	Labor 	Law 	(1976) 	p. 	720. 	Another 	commentator 	has 	urged
that 	the 	appro?riate 	duty 	of 	fair 	representation 	should 	be
based 	on 	"reasonableness," 	defined 	as 	"fairness" 	as 	that 	term
has 	been 	used 	in 	the 	context 	of 	constitutional due 	process
cases. 	See 	Duty 	of 	Fair 	Representation 	and 	Exclusive
Representation 	in 	Grievance Administration 	(1976) 	Syracuse
L.Rev. 	1199, 	1230. 	A recent 	federal 	case 	has 	held 	extreme
negligence 	in 	grievance 	processing 	to 	be 	a 	breach 	of 	the 	duty
of 	fair 	repres~ntation. 	Ruzicka 	v. 	Genaral Motors 	Corp. 	(6th
Cir. 	1975) 	52·3 F.2d 	30u 	[90 	LRRM 2497]. 	Cf. 	Local 	18, 	Int'l
Union 	of 	Operating 	Engineers 	(Ohio 	Pipeline 	Construction 	Co.)
(1963) 	144 NLRB 	1365 	[54 	LRRM 	1235].
The PERB 	has 	decided 	that 	whether 	a 	union 	has 	rne.t 	its 	duty,
within 	the 	context 	of 	grievance 	processing, 	depends 	not 	upon
the 	merits 	of 	the 	grievance, 	but 	rather 	upon 	the 	union's
conduct 	in 	processing 	or 	failing 	to 	process 	the 	grievance.
Absent 	arbitrary, 	discriminatory 	or 	bad 	faith 	conduct, 	mere
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negligence 	o: 	?OOr 	judgment 	in 	handling 	a 	grievance 	does 	not
constitute 	a 	b:each 	of 	the 	union's 	duty.4 	united 	Teachers 	of
LOS 	~ngeles 	(ll/17/82) 	PERB 	Decision No. 	258 •
A prirna 	facie 	case 	alleging 	conduct 	violative 	of 	the 	duty
of 	fair 	representation must, 	at 	a 	minimum, 	set 	forth 	sufficient
facts 	from 	which 	it 	becomes 	apparent 	how 	or 	in 	what 	manner 	the
exclusive 	representative's 	act ion, 	or 	inaction, 	was 	arbitrary,
discriminatory, 	or 	in 	bad 	faith. 	Rocklin 	Teachers 	Professional
Association, 	s 1Jora; 	see 	also 	PERB 	Regulation 	32615-(a} (5). 	The
obligation 	created 	by 	section 	3544.9 	is 	actionable 	through
section 	3543.6(b}. 	Fremont 	Unified 	District 	Teachers
Association 	(4/21/80) 	PERB 	Decision No. 	125; 	United 	Teachers 	of
Los 	~ngeles, 	supra.
Since 	filing 	the 	original 	charges, 	the charging 	parties
have 	been 	given 	three 	opportunities 	to 	provide 	a 	clear 	and
cor.cise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute 	an 	unfair 	practice. 	However, 	charging 	parties 	have
failed 	to 	do 	so, 	and 	thus, 	the 	charge 	remains 	unclear.
My best 	understanding 	of 	the 	charge 	is 	as 	follow$: 	The
charging 	parties 	believe 	that 	the 	Union 	violated 	its 	duty 	to
fairly 	represent 	them 	by: 	(1) 	failing 	to 	litigate 	the 	overtime
and 	transfer 	issues 	in 	the 	grievance 	arbitration held
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"TI 	4See 	also 	Dill 	v. 	Greyhound 	Corp. 	(6th 	Cir. 	1970) 	435
F.2d 	231, 	cert. 	denied 	(1971) 	402 	U.S. 	952; 	Steinman 	v. 	Spector
Freight· Systems 	Inc. 	{2d 	Cir. 	1973) 	476 	F.2d 	437 	[83 	LRRM 	228].
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August·2s, 	192: 	and 	(2) 	not 	notifying 	the 	charging 	parties
until 	Septe~je= 	25, 	1981 	about 	the 	arbitration 	decision 	which
was 	dated 	s~pt:~~e= 	7, 	1981. 	Although 	it 	nay 	be 	inferred 	from
these 	charges 	':hat 	Local 	99 's 	conduct 	in 	this 	regard 	was
possibly 	negliJent, 	unwise 	or 	otherwise 	unsatisfactory 	to 	the
charging 	parti:s, 	there 	is 	no 	specific 	allegation 	that 	Local
99, 	in 	these 	!~stances, 	acted 	in 	an 	arbitrary, 	capricious or
bad 	faith 	manner, 	or 	that 	its 	manner 	of 	handling 	of 	the
arbitration 	hearing 	was 	improperly 	motivated.
Although 	t..--:e 	charging 	parties 	further 	allege 	that 	Local. 99
has 	discriminated 	against 	them, 	the 	only 	factual· support
offered 	for 	this 	charge 	is 	a 	letter 	dated 	October 	12, 	1981,
sent 	by 	Local 	99 	business 	representative 	Clarence 	Luckey 	to
Steven 	Escobeza, 	a 	personnel 	representative 	for 	the 	District.
A review 	of 	the 	~etter 	reveals 	that 	the 	Union 	was 	requesting 	a
date 	for 	a 	meeting 	with 	the 	District 	to 	review 	the 	overtime
records 	of 	Scates 	and 	Pitts 	"as 	per 	the 	stipulaf:ions 	by 	the
District 	in 	the arbitration of 	Pitts 	and 	Scates 	v. 	L.A.U.S.D."
Again, 	other 	than 	referring 	to 	it, 	charging 	parties 	have 	failed
to 	state 	how, 	or 	in 	what 	manner, 	the 	letter 	demonstrates
discriminatory 	conduct 	by 	the 	Union. 	Nor 	have 	they 	stated 	how
the 	Union's 	man:1er 	of 	notifying 	them 	about 	the 	arbitration
decision 	also 	constituted 	discrimination 	against 	them •.
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For 	the 	a::,o·;e-stated 	reasons, 	it 	is 	concluded 	that 	neither
of 	~~ese 	charses 	states 	a 	prima 	facie 	violation 	of 	the 	duty 	of
fai~ 	represent3~ion 	{section 	3544.9) 	or 	section 	3543.6(b} 	and
sho~ld 	be 	dismissed.
Alle3ed 	Section 	3543.6(a) 	and 	(c) 	Violations
The 	allegations 	concerning 	the 	section 	3543.6(a) 	and 	{c)
violations 	are 	u~clear. 	The 	charging 	parties 	contend 	that
Local 	99 	violated 	section 	3543 .6 (a} 5 	by 	causing 	the 	employer
to 	i::ipose 	repr is:ils 	on 	them. 	In 	support 	of 	this 	allegation,
they 	refer 	to 	the 	"hugging 	and 	kissing" 	incident between
themselves 	on 	or 	about 	February 	4, 	1981, 	from 	which 	the
grievance 	against 	the 	District 	arose. 	Charging 	parties,
however, 	have 	failed 	to 	show 	how 	the 	conduct 	of 	Local 	99, 	as 	it
relates 	to 	this 	set 	of 	events, 	attempted 	or 	caused 	the District
to 	violate 	section 	3543.5 	of 	the EERA.
Finally, 	the 	charging 	parties 	allege 	that 	the 	Union
"blatantly 	evaded 	and 	avoided 	to 	represent 	errployees 	Pitts 	and
Scates," 	hence 	violating 	section 	3543.6(c). 6 	In 	support 	of
this 	allegation, 	they 	state 	that 	they 	telephoned 	the 	Union
several 	times 	between 	December, 	1981 and 	April, 	1982 	concerning
their 	grievances 	and 	the 	letter 	of 	October 	12, 	1981. 	However,
these 	factual 	allegations 	provide 	no 	basis 	for 	determining
how
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or 	in 	what 	man~er 	Local 	99 	refused 	or 	failed 	to 	meet 	and
negotiate 	in 	sood 	faith 	with 	the 	District 	about 	either 	chargir.g
party 	Scates 	c: 	Pitts.
Under 	PERE 	regulations, 	a 	charge must 	b~ 	dismissed 	if 	it 	is
determined 	that 	the 	charge 	is 	insufficient 	to 	establish 	a 	prima
facie 	case. 	(See 	PERB 	Regulation 	32620 (b} (4).)
For 	the 	ab~7~-stated 	reasons, 	it 	is 	concluded 	that 	these
unfair 	practice 	charges 	fail 	to 	state 	a 	prima 	facie 	violation
of 	either 	section 	3543 .6 (a) 	or 	(c) 	and, 	therefore, 	must 	be
dismissed.
Motion 	to 	Discr~alify
As 	a 	separate, 	but 	related 	matter, 	on January 	10,· 1983,
charging 	parties 	also 	filed 	a 	motion 	to 	disqualify 	Jeffrey
Paule, 	attorney 	for 	Local 	99, 	They 	argue 	that 	a 	conflict 	of
interest 	exists 	because 	the 	attorney 	defending 	the 	Union
against 	their 	unfair 	practice charges 	is 	paid 	for 	his 	services,
on 	;,i 	retainer 	basis, 	f::om 	ur:lon 	membersl1ip dues 	whic:i 	are
contributed 	by 	the charging 	parties who 	are dues-paying 	membe~s
of 	Local 	99. 	They assert 	that 	this 	situation 	constitutes 	a
breach 	of 	the 	fiduciary 	relationship 	between 	the 	union
representatives 	and 	its 	members. 	No 	authority 	is 	cited 	for
this 	proposition.
Local 	99 	did 	not 	file 	a 	response 	to 	this 	motion.
In 	King 	Citv 	High 	School 	District 	Association 	(3/3/82) 	PERB
Dec1s1on No. 	19 7, , 	th. e 	c h arg1ng	. 	party, 	wno	' 	w:ts 	a 	nonm.-nemoer	' 	o f	' 	•
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OURTi"APl!!:R
the 	respond~nt 	association, 	objected 	to 	the 	respondent's 	use 	of
his 	service 	fe~s 	for 	legal 	services 	utilized 	in 	defending
itself 	aginst 	the 	charge 	that 	it 	had 	breached 	its 	duty 	of 	fair
rep~esentatio~ 	OMed 	to 	the 	charging 	party. 	However, 	the 	Board
concluded 	that:
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••• 	the 	use 	of 	service 	fees 	to 	defend
ag~in3t 	a 	charge 	that 	the 	Association
violated 	its 	duty 	of 	fair 	representation 	is
not 	i~oermissible 	unless 	the 	defense 	is
frivolous 	or 	taken 	in 	bad 	faith. 	Defending
·charges 	against 	itself 	preserves 	the
strength 	and 	integrity 	of 	the 	exclusive
representative, 	and 	thus 	benefits 	all unit
mer.lb er s.
1ng	. 	,, . ...	K 	-i~y, 	supra, 	a t 	p. 	31 •
Further, 	if 	taken 	to 	its 	logical conclusion, 	the 	result 	of
charging 	pa_rties·• 	argument 	would 	be 	to 	totally 	deprive 	the
Union of. 	the 	right 	to 	ever 	defend .itself 	against 	an 	unfair
practice charge 	filed 	by 	one of 	its 	members.
Since 	no 	j!.istif iabl~ 	basis 	has 	been 	presented 	for 	granting
the 	motion, 	the motion 	to 	disqualify 	must be 	denied.
ORDER
The 	unfair 	practice 	charges 	of charging 	parties 	John 	C.
Scates 	and 	Shiral Pitts 	are 	hereby 	DISMISSED 	without 	leave 	to
amend. 	Additionally, 	their 	motion 	to 	disqualify 	the 	attorney
representative of 	Local 	99 	is 	DENIED. 	The 	formal 	hearing
tentatively 	sc~eduled 	for 	Februry 	7 	and 	9, 	1983 	is 	CANCELLED.
Charging 	parties 	may 	obtain 	review 	of 	this 	dismissal 	by
filing 	an 	appeal 	with 	the Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	dismissal. 	(PERB
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I 	Reg\1lation 	32535 (a)). 	Such 	appeal 	must 	be 	actually 	received 	by
the 	?ER3 	itself 	at 	the 	headquarters 	office 	in 	Sacramento 	before
the 	close 	of 	b~siness 	(5:00 	p.m.) 	on __F_e_b_r_~_,a_r_y_2_4_,_1_9_B_3_,__
or 	s~~t 	by 	telegraph 	or 	certified 	United 	States 	mail,
post~arked 	not 	later 	than 	the 	last 	day 	for 	filing 	in 	order 	to
be 	timely 	filed. 	(PERB 	Regulation 	32135). 	such 	appeal must 	be
in 	writing, 	must 	!::>e 	signed 	by 	the 	charging 	parties 	or 	their
agent, 	and 	must 	contain 	the 	facts 	and 	arguments 	upon 	which 	the
appeal 	is 	based. 	The 	appeal 	must 	be 	accompanied 	by 	proof 	of
serv· ice 	up::>n 	all 	parties. 	(PERB 	Regulations 	32140 	and
32635 	(a)).
Dated: 	February 	4, 	1983.
W. 	Jean 	Thomas
Administrative 	Law 	Judge
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