United Teachers-Los Angeles (Farrar) (PERB 0797E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM G. 	FARRAR, 	JR.,
Charging 	Party,
v.
UNITED 	TEACHERS-LOS ANGELES,
Respondent.
Case No. 	LA-CO-485
PERB Decision No. 	797
March 22, 	1990
Appearances: 	William G. 	Farrar, 	Jr., 	on his own behalf; 	Law
Offices of Lawrence B. 	Trygstad by Richard J. 	Schwab, 	Attorney,
for 	United Teachers-Los 	Angeles.
Before Craib, 	Shank, 	and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	filed by William G.
Farrar, 	Jr. 	(Farrar) 	to a Board agent's dismissal of his unfair
practice 	charge. 	We have 	reviewed 	the 	entire 	record 	in this
case, 	and affirm the dismissal 	of 	the unfair practice 	charge 	for
the 	reasons 	set 	forth below.
DISCUSSION
Farrar was 	employed by 	the 	Los 	Angeles 	Unified 	School
District 	(District) 	beginning in May 	1986 	as 	a probationary 	first
grade 	teacher at the Miles Avenue 	School. 	Toward the 	end of 	the
1987 	school year, 	Farrar's working relationship with the District
administration began to deteriorate. 	On February 	1, 	1988, 	the
assistant principal 	charged 	that 	Farrar was 	reading 	aloud 	to
students 	too much and that his 	teaching was 	otherwise 	seriously
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deficient. 	On February 22, 	1988, 	Farrar received a Notice of
Unsatisfactory 	Act/Service.
On March 	11, 	1988, 	Farrar filed a grievance against the
District, 	alleging violations 	of the 	collective bargaining
agreement 	between 	the 	District 	and 	United 	Teachers-Los 	Angeles
(UTLA). 	Farrar was 	represented by a UTLA representative
throughout the grievance process, 	and the case was 	ultimately
taken to arbitration on December 	12 	and 	14, 	1989. 	On March 	15,
1988, 	Farrar was 	notified that the District did not 	intend to
reelect 	him for the upcoming 	school 	year.
On June 	9, 	1989, 	Farrar filed an unfair practice charge with
PERB 	against 	UTLA, 	alleging that 	UTLA 	failed to adequately
represent him in his 	grievance against the District, 	and,
therefore, 	violated the 	Educational 	Employment Relations Act
(EERA) section 3543.6.
Farrar filed amended charges on
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) 	is 	the appropriate 	statutory vehicle 	for a
unit 	member 	to 	attack conduct 	of 	the 	exclusive 	representative
alleged to be violative 	of 	the duty of 	fair representation. 	The
duty itself, 	however, 	arises out of 	section 3544.9 of EERA.
(Rocklin Teachers 	Professional Association 	(1980) 	PERB 	Decision
No. 	124, 	at p. 	3.)
Section 3543.6(b) 	states:
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
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to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
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.
August 25, 	1989 and October 24, 	1989, 	alleging: 	(1) 	UTLA
conspired with the 	District 	to deprive him of 	his 	right 	to 	grieve
under the contract; 	(2) 	the UTLA representative 	failed to 	file a
separate grievance alleging a violation of 	section 	11.0(b) 	of 	the
contract 	providing 	for progressive 	discipline 	and prohibiting
disparate treatment; 	(3) 	the UTLA representative 	failed to 	enter
into 	evidence 	certain evidence which 	the 	charging party 	deems
"critical" 	or 	"conclusive"; 	(4) 	UTLA incorrectly advised Farrar
to maintain confidentiality regarding his 	grievance; 	and 	(5) 	UTLA
deprived 	Farrar of his 	right 	to procedural 	due process 	by 	(a)
representing 	him 	through 	the 	grievance 	process 	and 	the
arbitration hearing, 	thereby displacing Farrar's 	chosen
representative, 	and depriving him of the right to 	choose his 	own
representative or to represent himself, 	(b) 	failing to bring his
case to 	arbitration until 	10 	months 	after the grievance was
filed, 	and 5 months after his termination, 	and 	(c) 	failing to
have 	a 	transcript of 	the 	arbitration hearing made.
The 	Board agent dismissed the 	charge 	for 	failure 	to 	state 	a
prima 	facie case. 	Farrar filed exceptions, 	reiterating to a
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great degree 	the 	legal 	and 	factual 	arguments previously made.
After a thorough review of 	the exceptions, 	the Board has
determined that 	any 	factual 	errors 	or 	omissions 	raised 	in 	the
exceptions 	are 	not prejudicial. 	Several of 	the 	factual 	incidents
•raised 	in both 	the 	charge 	and the 	exceptions 	fall 	outside 	of 	the
statute 	of 	limitations 	and are 	therefore 	outside 	of 	our
jurisdiction. 	(California 	State University. 	San Diego 	(1989)
PERB Decision No. 	718-H.) 	The charge was 	filed on June 9, 	1989;
therefore, 	any events occurring prior to December 9, 	1988 	are not
within our 	jurisdiction to 	consider, 	except as 	they may provide
background 	information 	to 	the 	incidents 	occurring within 	the
statutory period. 	(Sacramento 	City 	Unified 	School 	District
(1982) 	PERB Decision No. 	214, 	at p. 	4, 	fn. 	4.)
The 	Board has 	held that 	a breach of 	the duty of 	fair
representation occurs when a union's 	conduct toward a member of
the bargaining unit 	is arbitrary, 	discriminatory, 	or in bad
faith. 	(Rockli
--------------------n Teachers Professional Association, 	supra
---. 	PERB
Decision No. 	124, 	at p. 	7.) 	In the context of grievance
handling, 	the Board has 	defined the 	scope of the duty as 	follows:
. 	. 	. 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.
[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. 	[Citations]
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(United Teachers-Los Angeles 	(Collins) 	(1982)
PERB Decision No. 	258, 	at p. 	5.)
In addition, 	in order to 	show a prima 	facie 	case of breach
of 	a union's duty of 	fair representation, 	the 	charging party must
present 	facts 	which would 	justify 	a 	finding 	that 	the 	union 	acted
without 	a rational 	basis 	or 	in a way 	that 	is 	devoid of 	honest
judgment. 	(Reed District Teachers Association. 	CTA/NEA 	(Reyes)
(1983) 	PERB Decision No. 	332, 	at p. 	9; 	also California Faculty
Association 	(Pomerantsev) 	(1988) 	PERB Decision No. 	698.) 	The
Board has 	held that when a union does 	undertake a grievance, 	the
failure 	to 	introduce 	every 	favorable document 	or 	to 	raise 	every
argument 	deemed 	significant by the 	charging party does 	not 	amount
to 	a breach of 	the duty of 	fair representation. 	(California
Faculty Association 	(Mirhady) 	(1989) 	PERB Decision No. 	746-H.)
In addition,
. 	. 	. 	denial of a member's request for a
particular attorney, 	without more, 	does not
establish 	arbitrary, 	discriminatory or bad
faith conduct on the part 	of 	the 	employee
organization.
(United Teachers-Los Angeles 	(Bracey) 	(1987)
PERB Decision No. 	616, 	at p. 	8 of the Warning
Letter.)
In the present 	case, 	Farrar 	failed to allege 	facts which
demonstrate 	that 	UTLA's 	representative 	acted 	in an 	arbitrary 	or
discriminatory manner, 	or 	in bad 	faith, 	in representing him with
regard to his 	grievance. 	The 	facts 	alleged are 	insufficient 	to
establish 	the 	existence 	of 	a 	conspiracy between UTLA and 	the
District 	to deprive 	Farrar of 	his 	right 	to pursue his 	grievance
under the 	contract. 	In fact, 	UTLA pursued Farrar's 	grievance to
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arbitration. 	As 	noted above, 	UTLA's 	alleged failure to make 	the
arguments 	and 	introduce 	the 	evidence 	deemed 	significant 	by 	Farrar
is 	insufficient to 	establish a breach 	of 	the duty of 	fair
representation. 	There 	is 	no 	indication that any of UTLA's
decisions 	regarding the 	arguments 	to be made, 	or the 	evidence 	to
be introduced, 	were made arbitrarily, 	discriminatorily, 	or in bad
faith. 	Neither 	is 	UTLA's 	alleged displacement 	of 	Farrar's 	chosen
representative 	for 	the 	grievance 	procedure 	and 	arbitration
sufficient 	under 	PERB 	law to 	constitute 	breach 	of 	the duty of
fair representation. 	Finally, 	Farrar's 	allegations 	that UTLA
incorrectly advised him, 	failed to 	arbitrate his 	case 	in a 	timely
manner, 	and 	failed to request 	an arbitration transcript do 	not
suggest arbitrary, 	discriminatory or bad 	faith conduct. 	At most,
these allegations 	suggest mere negligence which, 	as 	discussed
above, 	is 	insufficient to 	establish a breach of 	the duty of 	fair
representation.
As 	the 	facts 	alleged by Farrar do not 	establish a prima
facie 	case of 	a breach of 	the duty of 	fair representation, 	the
Board 	finds 	that 	the 	charge was 	properly 	dismissed.
ORDER
Based upon the 	entire 	record 	in this 	case, 	and 	consistent
with the discussion above, 	it 	is hereby ORDERED that the 	charge
be 	DISMISSED WITH 	PREJUDICE.
Members 	Craib and 	Shank 	joined 	in this 	Decision.
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