United Teachers of Los Angeles (Shade) (PERB 1183E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LEWIS R. 	SHADE,
Charging 	Party,
v.
UNITED TEACHERS 	LOS ANGELES,
Respondent.
Case No. 	LA-CO-704
PERB Decision No. 	1183
February. 20, 	1997
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Appearance: 	Robert M. Moss, 	Attorney, 	for Lewis R. 	Shade.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Lewis R. 	Shade
(Shade) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In his 	charge, 	Shade alleged that 	the United
Teachers 	Los 	Angeles 	breached 	the 	duty 	of 	fair 	representation
guaranteed by 	section 	3544.9 	of 	the 	Educational 	Employment
Relations Act 	(EERA) 	and thereby violated EERA section 3543.6(b).1
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
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.
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
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discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	Shade's 	original 	and amended unfair practice 	charge,
the 	Board agent's 	warning and 	dismissal 	letters 	and 	Shade's
appeal. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	of 	prejudicial 	error and hereby adopts 	them as 	the 	decision
of 	the Board 	itself.
ORDER
The unfair practice charge 	in Case No. 	LA-CO-704 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 25, 	1996
Lewis R. 	Shade
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-704, 	Lewis R. 	Shade v. 	United Teachers Los
Angeles
Dear Mr. 	Shade:
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In the above-referenced charge, 	filed on June 25, 	1996, 	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)
and thereby violated EERA section 3543.6(b).
I 	indicated to you, 	in my attached letter dated October 4, 	1996,
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
October 15, 	1996, 	the charge would be dismissed. 	I later
extended the 	deadline 	to October 24, 	1996
On October 24, 	1996, 	you filed an amended charge. 	Although the
amended charge 	criticizes 	UTLA and the District, 	and argues 	in
favor of your grievances, 	it 	is 	still 	not 	apparent 	from the
charge 	that 	UTLA's 	conduct was 	arbitrary, 	discriminatory or 	in
bad 	faith. 	I 	am therefore 	dismissing 	the 	charge, 	based on 	the
facts 	and 	reasons 	contained 	in 	this 	letter and my October 4
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. 	(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:
I

LA-CO-704
October 25, 	1996
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 	(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.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By THOMAS J. ALLEN
Regional Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 4, 	1996
Lewis R. 	Shade
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-704,
Lewis R. 	Shade v. 	United Teachers Los Angeles
Dear Mr. Shade:
In the above-referenced charge, 	filed on June 25, 	1996, 	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)
and thereby violated EERA section 3543.6(b).
My investigation of 	the charge 	reveals the 	following relevant
facts.
You are employed by the Los Angeles Unified School District 	in a
unit 	for which UTLA is the exclusive representative. 	The charge
alleges 	in part that UTLA failed to arbitrate several grievances,
a number of them involving notices of suspension. 	On February
29, 	1996, 	UTLA sent you a letter stating in part as follows:
Thank you for taking the time to present your
case to the UTLA Grievance Review Committee.
After giving full 	consideration to all
information available to the committee, 	we
have decided not 	to arbitrate this matter.
Area Representative Elsie Myers has been
advised to close the case.
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On March 5, 	1996, 	you sent UTLA a letter protesting this
decision. 	On March 7, 	1996, 	UTLA sent you a letter in reply,
stating in part as follows:
Appeal 	rights were granted from the original
decision of the Grievance Review Committee.
You met with the Committee in appeal on
February 28, 	1996. 	The Committee was not
convinced of the compelling nature of your
argument 	for continuing to arbitration.
On April 2, 	1996, 	in connection with two other grievances, 	UTLA
sent you a letter stating in part as follows:

LA-CO-704
October 4, 	1996
Page 2
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.
At the review meeting, 	you will be expected
to provide persuasive documentation
supporting your wish to proceed. 	If you feel
witnesses would be useful, 	please provide
written statements 	signed by the witnesses,
including the 	facts 	to which they would
testify if called before an arbitrator. 	You
are allowed a total of 3 0 minutes, 20 minutes
for your presentation and 10 minutes 	for
questions. 	You will need to bring 8 copies
of any written material with you. 	A written
decision will be issued within 10 days of the
review meeting.
You exercised your right to appeal. 	On April 26, 	1996, 	UTLA sent
you a letter denying the appeal, 	similar to the letter of
February 29, 	1996, 	quoted above. 	On June 6, 	1996, 	in connection
with another grievance, 	UTLA sent you a letter similar to the
letter of April 2, 	1996, 	quoted above. 	It is not apparent from
the charge whether you exercised your right 	to appeal 	in that
instance.
The charge also alleges that UTLA violated its duty by
"[p]urporting to represent 	the grievant while attempting to
mislead the grievant 	to believe that UTLA had withdrawn its
appeal to arbitration." 	The charge explains as 	follows:
On March 4, 	1996, Ms. Meyers[sic] 	of UTLA
appealed a suspension 	(2/26 [sic]/96) 	to
arbitration in a letter to Ms. 	Shirley Woo of
LAUSD. 	I was informed by my employer on
April 4, 	1996 that the salary effects of my
suspension 	(11/21/95) 	would occur on April
15, 	16, 	17, 	1996 because UTLA had withdrawn
my grievance 	(UTLA's 	appeal to arbitration,
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December 13, 	1996 [sic]). 	I delivered a copy
of this letter to Ms. 	Meyers on April 29,
1996. 	A few days later, 	I received a copy of
a letter dated 4 [sic]/6/96 from Ms. Meyers of
UTLA to Mr. 	Jack Jacobson, 	Coordinator,
LAUSD. 	The 	letter stated 	"UTLA wishes to
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withdraw 	the 	above-cited 	matter 	(Suspension
2/6/96) 	without precedence 	or prejudice."
About 	one 	week 	later, 	my employer 	informed me
in a letter 	(May 14, 	1996) 	that 	the salary
effects 	on my Suspension 	(2/6/96) 	would occur
on May 20, 	21, 	22, 	23, 	24, 	1996. 	This is the
same 	Suspension 	(2/6/96) 	cited 	in the 	letter
above 	from Ms. 	Meyers 	to Mr. 	Jacobson! 	Since
the 	appeal 	to arbitration was 	sent 	to Ms.
Woo, 	Assistant Superintendent, 	any withdrawal
of 	the 	appeal would also be sent 	to Ms. 	Woo!
Therefore, 	the letter 	(5/6/96) 	from Ms.
Meyers 	to Mr. 	Jacobson was not 	relevant 	to
the 	processing of 	any grievance 	and 	served no
useful 	purpose 	except 	to mislead the
grievant! 	Instead of 	denying 	the 	allegation
by my employer 	that 	UTLA had withdrawn, 	Ms.
Meyers 	chose 	to 	reinforce 	this 	allegation
while 	purporting 	to 	represent 	the 	grievant.
[Emphasis 	in the 	original.]
LA-CO-704
October 4, 	1996
Page 3
UTLA's 	letter to the District 	dated March 4, 	1996, 	of which a
copy was 	sent 	to you, 	stated in full 	as 	follows:
The 	above 	matter 	is 	referred to your office
to 	be 	scheduled 	for 	expedited 	arbitration,
pending 	a 	decision by 	the 	Grievance Review
Committee.
UTLA's 	letter to the District 	dated May 6, 	1996, 	of which a copy
was 	sent 	to you, 	stated in full, 	"UTLA wishes 	to withdraw the
above-cited matter without 	precedence 	or prejudice." 	Both
letters 	appear 	to 	refer 	to 	a grievance 	(involving 	a 	notice 	of
suspension dated February 	6, 	1996) 	in which the UTLA Grievance
Review Committee denied your appeal 	on April 	26, 	1996, 	as 	opposed
to 	the 	grievance 	in which your 	appeal 	was 	denied on 	February 29,
1996 	(which apparently involved an earlier notice of 	suspension).
A May 	14 	memorandum 	from your 	acting principal 	confirmed 	that 	the
grievance 	had 	been withdrawn 	by UTLA.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie violation of EERA, 	for the 	reasons 	that 	follow.
As 	Charging Party, 	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 	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) 	(1982) 	PERB Decision No. 	258.)
(

LA-CO-704
October 4, 	1996
Page 4
In order 	to 	state 	a prima 	facie 	violation of 	this 	section of
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). 	the Public
Employment 	Relations 	Board 	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.
[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." 	[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.]
In the present 	case, 	it 	does not 	appear 	from the 	charge 	that UTLA
arbitrarily 	ignored your 	grievances 	or processed 	them 	in 	a
perfunctory fashion. 	In each 	instance, 	UTLA gave you the right
to 	appeal 	its 	decision to 	its 	Grievance Review Committee.
Furthermore, 	although the number of 	grievances 	and underlying
suspensions may have 	caused some 	confusion, 	it 	does 	not 	appear
that 	UTLA attempted 	to mislead you about 	the process 	in any
significant way. 	On April 	26, 	1996, 	UTLA informed you that your
appeal was 	denied and the 	case would be 	closed; 	on May 6, 	1996,
UTLA withdrew 	the 	grievance 	from arbitration; 	and on May 	14,
1996, 	your acting principal 	confirmed the withdrawal. 	It 	is 	thus
not 	apparent 	from the 	charge 	that 	UTLA's 	conduct 	was 	arbitrary,
discriminatory or 	in bad 	faith.

LA-CO-704
October 4, 	1996
Page 5
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 October 15, 	1996, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
?•
Thomas J. 	Allen
Regional 	Attorney