United Teachers of Los Angeles (DePace) (PERB 1964E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LOUIS DE PACE,
Charging Party, Case No, LA-CO-1320-E
Vv. PERB Decision No. 1964
UNITED TEACHERS OF LOS ANGELES, June 18, 2008
Respondent.

Appearance: Louis DePace, on his own behalf.
Before Neuwald, Chair, McKeag and Rystrom, Members.
DECISION

McKEAG, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Louis DePace (DePace) of a Board agent’s dismissal (attached)
of his unfair practice charge. The unfair practice charge alleged that the United Teachers of
Los Angeles (UTLA) violated the Educational Employment Relations Act (EERA)' by
declining to file grievances on his behalf regarding paycheck errors caused by the
implementation of a new payroll system by the Los Angeles Unified School District (LAUSD
or District). DePace alleged this conduct constituted a violation of EERA but did not identify
any particular section.

Specifically, DePace claims UTLA failed to file grievances in connection with the
District’s alleged violations of Education Code sections 45038 and 45049 and alleged breach

of Article XIV, Section 31, of the collective bargaining agreement (CBA) between the District

'EERA is codified at Government Code section 3540, et seq.

and UTLA. DePace further alleged UTLA's conduct violated Article XIV, Section 31, of the
CBA and sections 45038 and 45049 of the Education Code.2
The Board has reviewed the entire record, including the unfair practice charge, UTLA's
position statement, the Board agent's warning and dismissal letters, and DePace's appeal.
Based on this review, the Board finds the dismissal of this case was proper and adopts the
warning and dismissal letters as a decision of the Board itself, subject to the following discussion
regarding the Board's review of the instant appeal.
REQUEST TO REOPEN THE RECORD
Although not expressly stated in his moving documents, DePace essentially asked the
Board to reopen the record to permit the late filing of documents for consideration by the
Board agent as part of the initial charge. 	Ironically, the Board recently addressed a similar
situation in Regents of the University of California (2008) PERB Order No. Ad-370-H
(Regents). As in the instant case, Regents involved a request by the charging party to reopen
their case to permit the filing of additional facts for consideration by the Board agent. The
Board in Regents held that the request is more appropriately considered an appeal of the
dismissal of the charge. Thus, the instant request is properly treated as an appeal. 	(Regents;
Los Angeles Unified School District (2007) PERB Order No. Ad-368.)3
2 In addition to the instant charge, DePace simultaneously filed a charge against LAUSD
alleging the District's conduct constituted a violation of EERA. DePace further alleged
LAUSD violated Article XIV, Section 31 of the CBA and sections 45038 and 45048 of the
Education Code. This companion case is entitled Louis DePace v. Los Angeles Unified School
District, Case No. LA-CE-5127-E.
3PERB Regulation 32635(b) states: "[ u]nless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (PERB regs.
are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.) We find that DePace has not shown
the requisite good cause to present additional documentary evidence on appeal. Accordingly,
we have not considered the new evidence submitted by DePace in the instant appeal.
2

Treating the request as an appeal, this case was dismissed on December 28, 2007.
Pursuant to the 20-day deadline for filing appeals set forth in PERB Regulation 32635(a),
plus the five-day extension for service by mail set forth in PERB Regulation 32130(c), the
deadline for DePace's appeal was January 22, 2008. Because it was filed on January 22,
DePace' s appeal was timely filed and, therefore, is properly before the Board.
ORDER
The unfair practice charge in Case No. LA-CO-1320-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Neuwald and Member Rystrom joined in this Decision.
3

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STATE OF CALIFORNIA 	( 	.
-=======~======'.
	l'===AR=N=O=LD=SC=HW=AR=ZE=NE=G=G=ER='=G=ov=er=n=or
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
December 28, 2007
Louis De Pace
P.O. Box 8013
La Crescenta, CA 91224
Re: 	Louis De Pace
v.
United Teachers of Los Angeles
Unfair Practice Charge No. LA-CO-1320-E
DISMISSAL LETTER
Dear Mr. De Pace:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 16, 2007. Louis De Pace alleges that the United Teachers
of
Los Angeles (UTLA) violated the Educational Employment Relations Act (EERA)1 by
declining to file grievances on his behalf regarding errors on his paycheck. This dismissal
letter addresses one
of
two unfair practice charges filed by De Pace. The other, case number
LA-CE-5127-E is discussed in another dismissal letter of the same date, referencing that case
number.
I informed you in my attached letter dated December 13, 2007, 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 December 21, 2007, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my December 13, 2007
letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1320-E
December 28, 2007
Page 2
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document
is
considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is
also considered "filed" when received by facsimile transmission before the close of business
together with a Facsimile Transmission Cover Sheet which meets the requirements of
Regulation 32135(d), provided the filing party also places the original, together with the
required number of copies and proof of service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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. (Regulation 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 Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
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. (Regulation 32132.)
Final Date

LA-CO-1320-E
December 28, 2007
Page 3
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
7,
TAMI R. BOGERT
General Counsel
By
/-1/'
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Eric J. Cu Regional Attorney
Attachment
cc: Erica Deutsch

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'•	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
=========	
===~=========-==-
	.-'==-=============
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles,
CA
90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
December 13, 2007
Louis De Pace
P.O. Box 8013
La Crescenta, CA 91224
Re: 	Louis De Pace
v.
United Teachers of Los Angeles
Unfair Practice Charge No. LA-CO-1320-E
WARNING LETTER
Dear Mr. De Pace:
The above-.referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 16, 2007. Louis De Pace alleges that the United Teachers
of
Los Angeles (UTLA) violated the Educational Employment Relations Act (BERA) 1 by
declining to file grievances on his behalf regarding errors on his paycheck. This letter
addresses one of two unfair practice charges filed by De Pace. The other, case number LA
CE-5127-E
is
discussed in another letter of the same date, referencing that case number.
UTLA
is
the exclusive representative of certificated employees at the Los Angeles Unified
School District (LAUSD). De Pace
is
a certificated employee at LAUSD. UTLA and LAUSD
are signatories to a Collective Bargaining Agreement (CBA) that contains a grievance
procedure. The CBA also contains a provision requiring LAUSD to correct problems
regarding paycheck errors promptly.
In or around January 2007, LAUSD implemented a new computerized payroll system. 	Errors
in the new system resulted in non-payment, underpayment, or overpayment to several unit
members, as well as erroneous deductions from unit member paychecks. De Pace requested
that UTLA file grievances regarding paycheck errors on March 6, 2007 and July 3, 2007, but
UTLA did not do so. On May 22, 2007 and October
1,
2007, two other unit members,
Annemarie Ralph and Georgia Weir, requested that UTLA file similar grievances but UTLA
did not do so. 	On September 24, 2007, however, UTLA did file a grievance on behalf of all
affected unit members regarding LAUSD's payroll errors.
In addition to the grievance, on February 23, 2007, UTLA filed a lawsuit in superior court
seeking to compel LAUSD to correct the payroll errors. 	In or around July 5, 2007, UTLA and
LAUSD negotiated agreements regarding a repayment plan for unit members, the opening of
additional payroll centers, and correction of errors regarding unit member retirement accounts.
1 BERA is codified at Government Code section 3540 et seq. The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1320-E
December 13, 2007
Page 2
On September 12, 2007, UTLA requested assistance from the Los Angeles County
Superintendent of Schools to compel LAUSD
to
correct the payroll errors.
Discussion:
De Pace contends that UTLA' s conduct violated EERA, the CBA, and Education Code
sections 45038 and 45048.
De Pace contends that UTLA denied him the right to fair representation by failing to file
grievances on his behalf on March 6, 2007 and July 3, 2007.2 PERB Regulation 32615(a)(5)
requires, inter alia, that an unfair practice charge include a "clear and concise statement
of
the
facts and conduct alleged to constitute an unfair practice." Thus, the charging party's burden
includes alleging the "who, what, when, where and how" of an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No. 873.) In addition, the burden
is
on the charging party to
establish that the charge
is
timely. 	(See Los Angeles Unified School District, (2007) PERB
Decision No. 1929.) PERB may not issue a complaint based on allegations occurring more
than six months prior to the filing of the charge. (EERA, § 3541.5(a)(l).) In this case, the
charge was filed on October 16, 2007, meaning PERB may not issue a complaint based on
conduct occurring before April 16, 2007. De Pace alleges that on March 6, 2007, UTLA
declined his request to file a grievance. De Pace has not established that this allegation is
within the six month statutory period or that an exception to the statute of limitations applies.
Therefore, this allegation does not state a prima facie case for a timely violation of EERA.
Under EERA section 3544.9, UTLA owes De Pace and other certificated unit members a duty
of fair representation. Breaching this duty violates 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
ofLos Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima facie
violation of this section of EERA, Charging Party must show that the Respondent'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 omitted.]
2 De Pace further contends that UTLA failed to file grievances on behalf of two other
unit members, but as those unit members are not signatories to this unfair practice charge,
these allegations will only be considered as background information to UTLA's representation
of De Pace. (See Regents of the University of California (2004) PERB Decision No. 1592-H
(holding that PERB Regulations do not provide for class action unfair practice charges and that
only those individuals who signed the charge will be considered as charging parties).)

LA-CO-1320-E
December 13, 2007
Page 3
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,
citing Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.)
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake
is
strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac
v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1274; see also, Robesky
v.
Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
In this case, De Pace contends that UTLA declined his requests to file a grievances regarding
errors in De Pace's pay. 	However, De Pace does not present facts establishing that UTLA's
decisions were arbitrary, discriminatory, or made in bad faith. 	(See Collins, supra, PERB
Decision No. 258.) Thus, De Pace has not established that UTLA breached its duty to
represent him.
In
ad?itio1r;c the Board has h~.l.~Jhat Am1rty
dpes notesfalJlish
~
1:JJ;e~cllof.
tlle duty
of
fairs··
repds·entati6rfwhete the exclusive teprese~tadve·•attemptedtqresqlye. disputest1pcierlyi11gtl:i.e.
chargi11g partyl s:grievance for the beriefit<of the bargairtirtg unit as
a•whok (County ofAlameda (2004) PERB Decision No. 1708-M.)3 liithis•case;'.UT:tA allegesJlmts:ik~tte1PPte<bt9
resolveth@DissJJ~, oYet:EA
usn·~·•payroll
errotsby;pμ,ts,μh1g.'!~
11<i-1i~n
tn.§.4~ffi9¥;f9.}!th•'•il•t•
•·
negotiatiffgtwitfi LA USD/filihg a
grievance
on behalf
of'
an affected
unitrnilhb~rs;andI,.
..
~.~~4j!}gi;,~§.S,!§tf;l!lcS~.Jr~11iJp~•k?~·.~!lgyJes
s:"i~~txc.~,i~trl~}.~2~,;it~,,§£~c?.~!~:.•.····l).~.Pace,:~o.~.s not
d1spμtethat. UTLAtook these actions, Nor does fie prov1ae facts establlshmg tliat UTEA:? s
3 When interpreting the statutes PERB enforces, it is appropriate to take guidance from
cases interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CO-1320-E
December 13, 2007
Page4
decisioliYofe~oite
MJ
pi§roU·isfob'lfito'trgli
tl:i~se
a'.cHdns;;
as
opp6sed
to.filing
his
ii~qttesi:l?cr
•··
grievances,
Was
arbitrary, discthninatory;
or
made in. bad faith:· (Sey Collins, supra, PERB
Decision No. 258.)
De Pace next alleges that UTLA's decision not to pursue his grievance request violated the
CBA between UTLA and LAUSD. BERA section 3541.5(b) states:
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation
of
such an agreement that would not also
constitute an unfair practice under this chapter.
As stated above, De Pace does not establish that UTLA's conduct violated BERA.
Accordingly, PERB is without jurisdiction to address this allegation.
Regarding the allegation that UTLA violated the Education Code, "PERB has no jurisdiction to
enforce provisions of the Education Code, it [only] has jurisdiction to interpret the Education
Code as necessary to carry out its duty to administer EERA." (Whisman Elementary School
District (1991) PERB Decision No. 868 (citing San Bernardino City Unified School District
(1989) PERB Decision No. 723); see also Desert Community College District (2007) PERB
Decision No. 1921, fn. 13.) Education Code section 45038 concerns the frequency
of
payments to certificated employees by school districts. Education Code section 45048
concerns the time
of
payment for certificated employees by school districts. PERB does not
have jurisdiction to determine whether LAU SD or UTLA violated these sections and
De
Pace
does not explain how interpretation
of
these sections implicates UTLA' s responsibilities to De
Pace under EERA. Therefore, De Pace does not demonstrate how these allegations establish
that a violation
of
EERA occurred.
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 that 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 have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before December 21, 2007, I shall dismiss your
charge.
	If
you
haveJ.J.U..,.._f'sfestions,
please call me at the above telephone number.
Sincerely,
Eric J.
Cu Regional Attorney