United Teachers of Los Angeles (Adams) (PERB 2205E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN W. ADAMS,
Charging Party, Case No. LA-CO-1407-E
Vv. PERB Decision No. 2205
UNITED TEACHERS OF LOS ANGELES, September 27, 2011
Respondent.

Appearance: John W. Adams, on his own behalf.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by John W. Adams (Adams) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that by failing to file grievances,
and failing to enforce rights under a settlement agreement, the United Teachers of Los Angeles
(UTLA) violated section 3544.9 of the Educational Employment Relations Act (EERA)' by
denying Adams the fair representation guaranteed by EERA. The Board agent found that
Adams failed to state a prima facie case and denied Adams’ request that the Board agent
disqualify himself. Accordingly, the Board agent dismissed the charge.

On appeai, Adams challenges the dismissal and urges anew that the Board agent was
biased and should have disqualified himself. We have reviewed the entire record in this matter

and find the warning and dismissal letters well-reasoned, adequately supported by the record

and in accordance with applicable law. Accordingly, we adopt the warning and dismissal

' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

letters as the decision
of
the Board itself,2 but review separately Adams' contention
of
bias and
request for disqualification
of
the Board agent. .
PROCEDURAL HISTORY
On December
7,
2009, Adams filed an unfair practice charge alleging that UTLA
violated EERA by declining to file grievances over two
of
Adams' issues, medical coverage
and return to work rights. Adams sought, in addition, to have PERB review issues already
decided in a prior unfair practice charge, Case No. LA-CO-1339-E.
On January 29, 2010, UTLA responded to Adams' allegations.
On February 4, 2010, the Board agent issued a warning letter, informing Adams that he
had not stated a prima facie case on the grievance issues and could not relitigate issues from
Case No. LA-CO-1339-E.
On March 11, 2010, Adams amended his charge. The amended charge was
accompanied by a request that the Board agent disqualify himself.
On March 17, 2010, Adams again amended his charge, and reiterated his request that
the Board agent disqualify himself.
On April 2, 2010, UTLA
..
responded to the amended charges.
On April 30, 2010, the Board agent responded by letter to Adams' request that the
Board agent disqualify himself. The Board agent declined to do so, noting Adams had raised
no grounds therefor.
2 In the warning letters, the Board agent cited City
of
Porterville (2007) PERB Decision
1905-M (Porterville) for the proposition that the doctrines of res judicata and collateral
estoppel bar the relitigation of an allegation that has been dismissed. In Grossmont Union
High School District (Meridith) (2010) PERB Decision No. 2126, the Board overruled
Porterville to the extent it granted preclusive effect to a dismissal of an unfair practice charge
based solely upon a Board agent's charge investigation. Accordingly, we do not rely on
Porterville as authority for dismissal of the instant charge. We nonetheless find that the
dismissal of the charge in this case was proper for the other reasons set forth in the Board
agent's dismissal and warning letters and the discussion herein.
2

On April 30, 2010, the Board agent issued a second warning letter to Adams.
On May 10, 2010, Adams faxed to PERB a third amended charge. 3
On May 18, 2010 the Board agent dismissed the charge.
On June 10, 2010, Adams appealed the Board agent's dismissal and reiterated his
charge
of
bias against the Board agent.
DISCUSSION
As noted above, we adopt the Board agent's warning and dismissal letters. We write
separately to address Adams' contention that the Board agent was biased and should have
disqualified himself. We look first at the duties
of
a Board agent processing an unfair practice
charge and the standards for Board agent disqualification, and then at Adams' allegations
of
bias.
I.
	Duties
of
a Board Agent
An unfair practice charge must include a clear and concise statement
of
the facts and
conduct by the respondent alleged to constitute an unfair practice. (PERB Reg. 32615(a)(5);4
State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S;
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient, and the charging party bears the burden
of
alleging all material
facts necessary to state a prima facie case. (Los Angeles Unified School District (1984) PERB
Decision No. 473.) In processing a charge, the Board agent has a duty to:
(1) Assist the charging party to state in proper form the
information required by section 32615;
(2) Answer procedural questions of each party regarding the
processing of the case;
3 The third amended charge was "filed" by fax only. Nonetheless, the Board agent did
consider the new allegations in the subsequent dismissal letter.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

(3) Facilitate communication and the exchange
of
information
between the parties;
(4) Make inquiries and review the charge and any accompanying
materials to determine whether an unfair practice has been, or is
being, committed, and determine whether the charge is subject to
deferral to arbitration, or to dismissal for lack
of
timeliness.
(5) Dismiss the charge or any part thereof as provided in
Section 32630
if
it is determined that the charge or the evidence is
insufficient to establish a prima facie case; or
if
it is determined
that a complaint may not be issued in light
of
Government Code
Sections 3514.5, 3541.5, 3563.2, 71639.l(c) or 71825(c), or Public
Utilities Code Section 99561.2; or
if
it is determined that a charge
filed pursuant to Government Code section 3509(b) is based upon
conduct occurring more than six months prior to the filing
of
the
charge.
(6) Place the charge in abeyance
if
the dispute arises under
MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter
Act and is subject to final and binding arbitration pursuant to a
collective bargaining agreement, and dismiss the charge at the
conclusion
of
the arbitration process unless the charging party
demonstrates that the settlement or arbitration award is repugnant
to the purposes
of
MMBA, HEERA, TEERA, Trial Court Act or
Court Interpreter Act, as provided in section 32661.
(7) Issue a complaint pursuant to Section 32640.
(PERB Reg. 32620.)
While the Board agent's duties include assisting the charging party in stating the proper
form
of
the charge, making inquiries and reviewing the charge and any accompanying materials,
the ultimate responsibility remains with the charging party to provide a clear and concise
statement
of
the facts constituting a prima facie case. (Regents
of
the University
of
California
(2004) PERB Decision No. 1585-H; Regents
of
the University
of
California (2004) PERB
Decision No. 1592-H.)
In this case, the Board agent communicated on several occasions with Adams in an
attempt to assist him in filing an unfair practice charge that, if the facts alleged were proven,
would constitute a prima facie case against UTLA for breach of its duty of fair representation.
The Board agent allowed Adams to amend his charge three times and spoke with Adamsby
4

telephone on at least one occasion. On February 4, 2010 and April 30, 2010, the Board agent
issued warning letters clearly advising Adams of deficiencies in the charge. Thus, the Board
agent assisted Adams to state the proper form of the charge, made inquiries and reviewed the
charge and accompanying materials. However, the responsibility remained with Adams as
charging party to provide a clear and concise statement of the facts constituting a prima facie
case.
II. 	Standards for Board Agent Disqualification
PERB Regulation 32155 provides, in relevant part, as follows:
(c) Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
written, or if oral, reduced to writing within 24 hours of the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. The request must be made prior to the
taking of any evidence in an evidentiary hearing or the actual
commencement of any other proceeding.
If such Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel or the Chief Administrative Law Judge, as appropriate,
who shall designate another Board agent to hear the matter.
Notwithstanding his or her disqualification, a Board agent who is
disqualified may request another Board agent who has been agreed
upon by all parties to conduct the hearing or investigation.
( d) Ifthe Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance of the decision. The
party requesting the disqualification may, within ten days, file with
the Board itself a request for special permission to appeal
ruling of the Board agent. If permission is not granted, the party
requesting disqualification may file an appeal, after hearing or
investigation and issuance of the decision, setting forth the grounds
of the alleged disqualification along with any other exceptions to
the decision on its merits.
5

PERB has held that a "fixed anticipatory prejudgment" against a party must be shown to
establish "prejudice"5 sufficient for Board agent disqualification. (Gonzales Union High School
District (1985) PERB Decision No. 480 (Gonzales); Coachella Valley Mosquito & Vector
Control District (2009) PERB Decision No. 2031-M.) Such prejudgment is established through
statements or conduct by the Board agent indicating a clear predisposition against a party.
(Gonzales).
Adverse rulings by a Board agent against a party in a previous case, or erroneous legal or
factual rulings, do not in themselves indicate prejudice. (Chula Vista Elementary EA, CTA
(Larkins) (2003) PERB Order No. Ad-322 (Chula Vista).)
III. 	Adams' March
11
and March 1
7,
2010 Request that the Board Agent Disqualify
Himself
On March
11
and 17, 2010, Adams requested that the Board agent disqualify himself.
Adams advanced two arguments that the Board agent was biased against him. The Board agent
responded on April 30, 2010. The arguments were as follows: (1) The Board agent's statements
in the February 4, 2010 warning letter indicate bias favoring UTLA; (2) A board agent's
dismissal
of
Adams' earlier unfair practice charge6 indicated bias by the Board agent.
We look at Adams' arguments to determine whether they meet the standard set forth in
Gonzales. We conclude, as did the Board agent, that they do not.
A. 	Statements in the February 4, 2010 Warning Letter
In his March 17, 2010 request for disqualification, 7 Adams argues that the Board agent
should have disqualified himself because the Board agent's statements in the February 4, 2010
5 The term "prejudice" is used in Gonzales, however the Board has used the term "bias"
in its articulation of when disqualification is appropriate.
6 Unfair Practice Charge No. LA-CO-1339-E in United Teachers
of
Los Angeles
(Adams) (2009) PERB Decision No. 2012.
7 Adams' March 17, 2010 request for disqualification is dated March 11, 2010.
However, the request was filed with PERB on March 17, 2010.
6

warning letter indicate bias favoring UTLA. In his April 30, 2010 denial
of
Adams' request for
disqualification, the Board agent concluded that "there is
no
authority for the proposition that
issuance
of
a warning letter constitutes grounds for disqualification." We agree with the Board
agent's response, and supplement the response
as
follows.
The Board agent's statements in the February 4, 2010 warning letter, to the effect that
Adams had failed to allege a prima facie case, did not indicate bias but rather a candid and
appropriate appraisal
of
Adams' allegations. The statements in the warning letter were made to
assist Adams in stating a prima facie case. They do not indicate that the Board agent had a fixed
anticipatory prejudgment against Adams. Furthermore, the Board agent allowed Adams to
amend his charge several times, conduct indicative
of
assistance, not bias.
B. 	Dismissal
of
Adams' Earlier Unfair Practice Charge
Adams argues, in his March 17, 2010 request for disqualification and subsequently in his
exceptions to the Board agent's dismissal letter, that the dismissal
of
his earlier unfair practice
charge indicates that the Board agent in the current charge is biased. In his April 30, 2010 denial
of
Adams' request for disqualification, the Board agent concluded that Adams' "disagreement
[,vi th the outcome in the prior charge] and his arguments related to it do not constitute grounds
for disqualification." We agree with the Board agent's response, and supplement as follows.
In the earlier unfair practice charge, a different Board agent investigated the charge and
issued the dismissal and warning letters. Since adverse rulings against a party in a previous case
do not themselves constitute prejudice, a Board agent's dismissal
of
Adams' 	unfair
practice charge does not establish bias. (Chula Vista.) Furthermore, there can be no bias
attributed to the Board agent in this case based on an earlier dismissal of a different charge by a
different Board agent. (Ibid.)
In sum, the Board agent properly rejected Adams' March 17, 2010 request for
disqualification.
7

IV.
	Adams'
Allegations
of
Bias Put Forth In His Exceptions to the Board Agent's
Dismissal
In his exceptions to the Board agent's dismissal, Adams again claims that the Board
agent was biased. The allegations are as follows: (1) The Board agent ignored Adams'
amendments to his current unfair practice charge; (2) The Board agent incorrectly calculatedthe
statute
of
limitations on Adams' charge; (3) The Board agent incorrectly told Adams that
he
was
tardy in filing the amendments to his charge; (4) The Board agent erroneously toldAdams that
he could file his own grievances against the Los Angeles Unified School District (LAUSD).
We evaluate these allegations
of
bias to determine whether they meet the Gonzales
standard. We conclude that they do not.
A. 	The Board Agent's Treatment
of
Adams' Charge Amendments
Adams argues in his exceptions to the Board agent's dismissal letter that the Board agent
ignored amendments to his charge. We review the charge, the amendments and theBoard
agent's evaluation
of
the amendments.
On December
7,
2009, Adams filed the current unfair practice charge. In the initial
charge, he alleged that the UTLA violated its duty
of
fair representation by not representing
Adams with regard to a medical coverage issue and a return to work issue.
On February 4, 2010, the Board agent issued a warning letter to Adams. The letter
explained to Adams that he had not established a prima facie case with regard to the medical
coverage issue because the charge failed to provide the "who, what, when, where and
how"
of
an
unfair practice charge.8 The letter also explained that Adams had not established aprima facie
case with regard to the return to work issue because 	did not show how UTLA's conduct was
arbitrary, discriminatory, or in bad faith. 9
8 State of California (Department
of
Food and Agriculture) (1994) PERB Decision
No. 1071-S.
9 Alvord Educator's Association (Bussman) (2009) PERB Decision No. 2046.
8

On March 11, 2010, Adams amended his charge, reiterating the same allegations, and
adding
_two
additional allegations. The new allegations charged that UTLA failed to represent
him when LAU SD did not adhere to the terms
of
a settlement agreement in PERB unfair
practice Case No. LA-CE-5177-E, and that UTLA failed to represent him concerning a payroll
issue.
On April 30, 2010, the Board agent issued a second warning letter to Adams. With
regard to the medical coverage issue, the letter reiterated to Adams that the allegation
concerning the medical coverage issue did not state a prima facie case. The Board agent also
informed Adams that, under the UTLA-LAUSD agreement, he had the right to file his own
grievance against LAUSD, but UTLA had no duty to do so, and UTLA's failure to file did not
extinguish his right to pursue his grievance
if
he filed it in a timely manner. 10
With regard to the return to work issue, the Board agent informed Adams that UTLA
did not owe a duty to him with respect to enforcement
of
the settlement agreement, and that
UTLA's decision not to pursue a grievance on the matter did riot "completely extinguish"
Adams' opportunity to pursue a grievance. (Chestangue.)
\Vith regard to the settlement agreement, the Board agent informed Adams that an
exclusive representative does not owe a duty
of
fair representation to unit members in a forum
over which the union does not exclusively control over the means to a particular remedy.
(Chestangue.)
As to the payroll issue, the Board agent informed
Adan1s that he did not establish a
prima facie case of a breach of the duty of fair representation, and that the allegation was
subject to dismissal because Adams had the ability to file the grievance on his own, and
because the issue concerned enforcement of a settlement agreement.
10
San Francisco Classroom Teachers Association, CTAINEA (Chestangue) (1985)
PERB Decision No. 544 (Chestangue).
9

On May 10, 2010, Adams faxed to PERB his third amended charge. 	The third amended
charge reiterated the arguments Adams made in the second amended charge, but failed to
address the Board agent's concerns in the second warning letter that Adams could have filed
grievances himself over any alleged violations of the collective bargaining agreement. 11
Adams did, in the third amended charge, allege UTLA's lack of response to demands he made
on them during the investigation of the charge for proof of certain factual assertions made by
them, and even for evidence that would allow Adams to prove his allegation that UTLA had
produced falsified documents. In dismissing the charge, the Board agent informed Adams that
the burden is on the charging party to show how an exclusive representative abused its
discretion, and not on the exclusive representative to show how it properly exercised its
discretion. 12
We conclude that the Board agent addressed appropriately the amendments Adams
made to his charge, and that Adams has not established that the Board agent ignored his charge
amendments. Further, even though Adams' third amended charge was not properly filed, the
Board agent nonetheless considered and addressed the amended allegations in the dismissal
letter. The Board agent's review of the allegations in the third amended charge is further
indication that the Board agent had no fixed anticipatory judgment against Adams.
We conclude that as to handling of charge amendments, Adams has not established that
the Board agent demonstrated a fixed anticipatory judgment against him. (Gonzales.)
I11correct Calculation of the Statute of Lin1itations
Adams argues in his exceptions to the Board agent's dismissal letter that the initial filing
of the cunent charge was timely, and that the Board agent's conclusion that the charge was
untimely is in an indication of bias. We concur with the Board agent's resolution of the
11 Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H.
12 United Teachers-Los Angeles (Vigil) (1992) PERB Decision No. 934.
10

limitations issue. Moreover, an adverse ruling on a legal issue is not
of
itself sufficient to
indicate bias. (Chula Vista.) And, the Board agent addressed the merits
of
Adams' charge,
regardless
of
whether it had been timely filed. 	We conclude that as to the statute
of
limitations,
Adams has not established that the Board agent demonstrated a fixed anticipatoryprejudgment
against him. (Gonzales.)
C. 	Tardy Filings
Adams argues in his exceptions to the Board agent's dismissal letter that he was
not
tardy
in filing amendments to his charge and that the Board agent thus was biased in dismissing his
charge. 	The deadline for Adams to file his third amended charge was May 13, 2010. While
Adams sent his third amended charge via facsimile on May 9, 2010,
13
PERB did not timely
receive the original and copy required by PERB Regulation 32135(c). Thus, the third amended
charge was not properly filed. Nevertheless, the Board agent considered the allegations
in
Adams' third amended charge. 	We conclude that as to the incomplete filing
of
the third
amended charge, Adams has not established that the Board agent demonstrated a fixed
anticipatory prejudgment against him.
D. 	Adams Filing His Own Grievances Against LAUSD
Adams argues in his exceptions that the Board agent, in informing Adams that hecould
file his own grievances against LAUSD, demonstrated bias. However, as noted above, the Board
agent's duties include assisting the charging party in stating the proper form
of
the charge,
111aking
inquiries
a11d	
the charge
a11d
any'
accompa11yi11g
materials. By informing
Adams that he could file his own grievances against LAUSD, the Board agent performed his
duties pursuant to PERB Regulation 32155. 	We conclude that as to informing a charging party
13
Because May 9, 2010 was a Sunday and not a regular PERB business day, the filing
date of the third amended charge would be denoted as May 10, 2010, in accordance with PERB
Regulation 32135(c). Adams had been reminded on more than one occasion, including in the
April 30, 2010 warning letter, of the applicable filing requirements.
11

of
his right to file grievances, Adams has not established that the Board agent demonstrated a
fixed anticipatory prejudgment against him.
In sum, we conclude that Adams has failed to establish any
of
the claims advanced in his
exceptions
of
bias by the Board agent.
After review
of
the entire record, including allegations
of
bias set forth by Adams in his
March
11
and March 1
7, 2010 request that the Board agent disqualify himself and in Adams'
exceptions to the Board agent's dismissal
of
his charge, we find the Board agent's conduct
appropriate and free
of
bias. Accordingly, we affirm the Board agent's decision
of
April 30,
2010 denying the request for disqualification, and we deny Adams' request in his exceptions that
the Board agent be disqualified.
ORDER
The unfair practice charge in Case No. LA-CO-1407-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
12

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PE.A.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
May 18, 2010
John W. Adams
Re: 	John W. Adams v. United Teachers of Los Angeles
Unfair Practice Charge No. LA-CO-1407-E
DISMISSAL LETTER
Dear Mr. Adams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2009, and amended on March
11
and 17, 2010. 	JohnW. Adams (Adams or Charging Party) alleges that the United Teachers
of
Los Angeles (UTLA
or Respondent) violated the Educational Employment Relations Act (EERA or Act)1
by
denying him the right to fair representation guaranteed by the Act.
EMPLOYMEN't
Charging Party was informed in the attached Second WaTning Letter dated April 30, 2010, that
the above-referenced charge did not state a prima facie case.2 You were advised that,
if
there
were any factual inaccuracies or additional facts that 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 May 13, 2010, the charge
would be dismissed.
On May
9,
2010, PERB received a Third Amended Charge from Adams via facsimile
transmission. 	Because May 9 was a Sunday and not a "regular PERB business day," the filing
date
of
the Third Amended Charge would be denoted as May 10, 2010, in accordance withPERB Regulation 32135. However, the fax filing
of
the Third Amended Charge is explicit in
stating that the "filing" is by fax only, and the required original and copy have not been
received as
of
this writing. Thus, the Third Amended Charge is not properly filed pursuant to
PERB Regulation 32135(c).3 In addition, while it appears that a copy
of
the Third Amended
1 EERA is codified at Government Code section 3540 et seq. PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text
of
the
and PERB Regulations may be found atwww.perb.ca.gov.
2 An earlier Warning Letter, dated February 4, 2010, was re-issued to Adams on
February 8, 2010. This letter is also attached.
3 Adams has been reminded on more than one occasion, including in the Second
Warning Letter, of the applicable filing requirements.
STATE OF CALIFORNIA
PUBLIC 	RELATIONS BOARD
May 18, 2010
John W. Adams
24 17th A venue #207
Venice, CA 90291
Dear Mr. Adams:

LA-CO-1407-E
May 18, 2010
Page 2
Charge was sent by fax to UTLA's designated representative, the proof
of
service submitted
with the Third Amended Charge does not show service on UTLA or UTLA's representative in
accordance with PERB Regulation 32140.
Despite the above-described filing deficiencies, the information contained in the statement
of
the Third Amended Charge has been considered by the undersigned and is addressed in the
following discussion.
Discussion
For the following reasons, the Third Amended Charge does not cure the deficiencies in
Adams' s charge that were identified earlier, and the charge fails to state a prima facie case
demonstrating that UTLA breached its duty
of
fair representation to Adams in violation
of
EERA section 3544.9.
First, the Third Amended Charge makes more explicit the fact that the individual issues
on
which Adams sought representation from UTLA arose out
of
the implementation and
enforcement
of
a Settlement Agreement between Adams and his employer, the Los Angeles
Unified School District (District), resolving an earlier unfair practice charge filed by Adams
against the District.
As discussed in the Second Warning Letter:
An exclusive representative does not owe a duty
of
fair
representation to unit members in a forum over which the union
does not exclusively control the means to a particular remedy.
(San Francisco Classroom Teachers Association, CT
AJNEA
(Chestangue) (1985) PERB Decision No. 544.) The Board has
also previously held that, since PERB is a forum outside the
collective bargaining agreement, the union does not owe
members a duty
of
fair representation in proceedings involving
PERB. (SEJU Local 1000, CSEA (Burnett) (2007) PERB
Decision No. 1914-S.) Thus, for example, the union's refusal to
file an unfair practice charge with PERB on an employee's behalf
does not violate the duty
of
fair representation. (Ibid.) Likewise,
the Board held that, where a charge did not contain facts to
indicate that the exclusive representative possessed exclusive
control over the enforcement of a settlement agreement which
was negotiated on charging party's behalf with the employer, no
breach of the duty of fair representation could be found.
(San Bernardino Teachers Association, CTA/NEA (Cooksey)
(2000) PERB Decision No. 1387.)
Thus, even if there were possible contract violations subject to the grievance procedure under
the collective bargaining agreement (CBA) negotiated by UTLA and the District, the fact that

LA-CO-1407-E
May 18, 2010
Page 3
the alleged violations arose out of the Settlement Agreement means that UTLA cannot be
found to have breached the duty of fair representation for the simple reason that the duty does
not attach to enforcement or resolution of disputes arising out of a Settlement Agreement of an
unfair practice charge. (SEIU Local 1000, CSEA (Burnett), supra, PERB Decision No. 1914
S; San Bernardino Teachers Association, CTA/NEA (Cooksey), supra, PERB Decision
No. 1387.)
In addition, Adams does not address in the Third Amended Charge the conclusion, stated in the
Second Warning Letter, that he could have filed grievances himself over any alleged violations
of the CBA and, thus, UTLA's refusal or failure to file grievances on his behalf did not
"extinguish" his opportunity to pursue his claims under the CBA. (See, Coalition of University
Employees (Buxton) (2003) PERB Decision No. 1517-H.) In another case, the Board declined
to find a breach of the duty of fair representation where an employee was able to file a
grievance but instead relied solely on the union to do so and then filed an unfair practice
charge when her union did not do so. (College of the Canyons Faculty Association (Lynn)
(2004) PERB Decision No. 1706.) The Board reasoned, in part, that "[the employee] had a
concomitant responsibility to read the [collective bargaining agreement], learn of her right to
file a grievance, and to take the necessary steps to do so. 	She cannot fault the [union] for her
personal failure to take this action." (Ibid.)
Adams does address UTLA's lack of response to demands he has made on them during the
investigation of the instant charge for proof of certain factual assertions made by them, and
even for evidence that would allow Adams to prove his allegation that UTLA has produced
falsified documents. However, as was previously discussed in the February 4, 2010 Warning
Letter, in duty of fair representation cases, the burden is on the charging party to show how an
exclusive representative abused its discretion, and not on the exclusive representative to show
how it properly exercised its discretion. (United Teachers-Los Angeles (Vigil) (1992) PERB
Decision No. 934.)
Conclusion
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above, as
well as in the February 4, 2010 Warning Letter and April 30, 2010 Second Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, Charging Party 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 Regs, tit. 8, § 32635, subd. (a).) Any document filed with 	Board
must contain the case 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.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the

LA-CO-1407-E
May 18, 2010
Page 4
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB 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. 	(Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 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. (Cal. Code Regs, tit. 8, § 32635, subd. (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 Regs., tit. 8, § 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.
(Cai. Code Regs, tit. 8, § 32135, subd. (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. (Cal. Code Regs, tit. 8, § 32132.)

LA-CO-1407-E
May 18, 2010
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,
TAMI
R.
BOGERT
General Counsel
By	
L&l?£
Les Chisholm
Division Chief
Attachments
cc: 	Dana
S.
Martinez

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
April 30, 2010
John W. Adams
24 17th A venue #207
Venice, CA 90291
Re: 	John W Adams v. United Teachers of Los Angeles
Unfair Practice Charge No. LA-CO-1407-E
SECOND WARNING LETTER
Dear Mr. Adams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2009. John W. Adams (Adams or Charging Party)
alleges that the United Teachers of Los Angeles (UTLA or Respondent) violated the
Educational Employment Relations Act (EERA or Act)1 by denying him the right to fair
representation guaranteed by the Act.
Charging Party was informed in a Warning Letter dated February 4, 2010, that the above
referenced charge did not state a prima facie case.2 You were advised that, if there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in the
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 February 24, 2010, the charge would
be dismissed. This deadline was later extended, at Adams' s request, to March 11, 2010.
On March 11, 2010, Adams filed a First Amended Charge. On March 17, 2010, Adams filed a
Revised/Second Amended Charge. Both the First and Second Amended Charges (amended
charges) were accompanied by a letter requesting that the undersigned disqualify himself from
investigating his charge. 3 The undersigned is also in receipt of two fax copies of a letter dated
April 14, 2010, transmitted on April 14 and 20, 2010, and addressed to UTLA's representative
in this matter from Mr. Adams. Because only fax copies have been received, these documents
1 EERA is codified at Government Code section 3540 et seq. PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. 	The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.
2 The Warning Letter dated February 4, 2010 was addressed to the person identified as
the representative of Mr. Adams on a Notice of Appearance Form submitted by Mr. Adams.
Upon notice that Mr. Adams was not represented by that person, the Warning Letter was re
issued on February 8, 2010.
3 The motion to disqualify the undersigned is addressed in separate correspondence.

LA-CO-1407-E
April 30, 2010
Page 2
are not considered properly "filed" in accordance with PERB Regulation 32135, and are not
included in the case file.
The First and Second Amended Charges
PERB Regulation 32621 provides as follows:
Before the Board agent issues or refuses to issue a complaint, the
charging party may file an amended charge. The amended charge
must contain all allegations on which the charging party relies
and must meet all of the requirements of Section 32615. The
amended charge shall be processed pursuant to Section 32620.
(Emphasis added.)
Adams was reminded, in a telephone conversation on March 15, 2010, concerning his
amended charges, that submitting fax copies alone does not constitute "filing."
LA-CO-1407-E
April 30, 2010
Page 2
are not considered properly "filed" in accordance with PERB Regulation 32135, and are not
included in the case file. 4
The First and Second Amended Charges
PERB Regulation 32621 provides as follows:
Before the Board agent issues or refuses to issue a complaint, the
charging party may file an amended charge. The amended charge
must contain all allegations on which the charging party relies
and must meet all of the requirements of Section 32615. The
amended charge shall be processed pursuant to Section 32620.
(Emphasis added.)
As originally filed, Mr. Adams's charge focused in large part on a "Second Request for Appeal
on Unfair Practice Charge No. LA-CO-1339-E." In the February 4, 2010 Warning Letter, I
explained that, "To the extent that the instant filing seeks to either 'amend' or 'appeal' the
dismissal of LA-CO-1339-E, the charge must be dismissed," citing City of Porterville (2007)
PERB Decision No. 1905-M [the doctrines of res judicata and collateral estoppel bar the re
filing of an allegation that has been dismissed] and Marin County Law Library (2004) PERB
Order No. Ad-338-M [a charging party may not attempt to amend a charge after it has been
dismissed]. In amending his present charge, apart from a discussion in the motion to disqualify
the undersigned referenced above, Mr. Adams does not address this issue. Thus, this issue
appears to have been effectively withdrawn by Mr. Adams through his filing of the First and
Second Amended Charges. In the alternative, the allegations related to a purported "Second
Request for Appeal on Unfair Practice Charge No. LA-CO-1339-E" will be dismissed for the
reasons set forth in the February 4, 2010 Warning Letter.
The remaining allegations from the charge as originally filed concern requests by Mr. Adams
for UTLA' s assistance regarding medical coverage and his transfer on his return to work to a
different school site. In addition, Mr. Adams now alleges that UTLA failed to represent him
concerning a payroll issue. These three "counts" will be addressed in turn below.
However, before turning to the individual issues, it is important to note other, additional
information provided with the First Amended Charge. Attached to the First Amended Charge
as Exhibit 12 is a document entitled, "Settlement Agreement," entered into by Adams and the
Los Angeles Unified School District (District) in November 2008. The Settlement Agreement
was reached in order to resolve 	Unfair Practice Case 	LA-CE-5177-E. 	The
Settlement Agreement provided in part that the District would "retroactively reinstate Adams
as a permanent certificated teacher," and that Adams would be "required to report to work,
4
"Adams was reminded, in a telephone conversation on March 15, 2010, concerning his
amended charges, that submitting fax copies alone does not constitute "filing."

LA-CO-1407-E
April 30, 2010
Page 3
upon the District's notice to him of his new assignment." The Settlement Agreement further
called for the District to "make Adams whole," specifying an amount due both for lost earnings
and a less specific requirement to reimburse Adams for various medical expenses. In return,
Adams agreed to withdraw Unfair Practice Charge No. LA-CE-5177-E.
The First Amended Charge also provides evidence that various disputes arose between the
District and Adams over the implementation of the Settlement Agreement. 	For example,
Exhibit 10 includes a series of e-mail messages between an attorney representing Adams and
the District's attorney, concerning allegations that Adams had not been properly compensated
pursuant to the Settlement Agreement. Also, a the January 21, 2009 e-mail message to UTLA
requesting assistance with respect to an alleged violation of Article XVI of the collective
bargaining agreement (CBA) between the District and UTLA, Adams stated he was also
seeking assistance with regard to the District's alleged "nullification" of the Settlement
Agreement.
The foregoing summary of the Settlement Agreement and the dispute over its implementation
are relevant here because it appears that each of the issues discussed further below, where
Adams sought assistance from UTLA, arose out of the implementation of the Settlement
Agreement and Adams's return to work pursuant to the Settlement Agreement.
An exclusive representative does not owe a duty of fair representation to unit members in a
forum over which the union does not exclusively control the means to a particular remedy.
(San Francisco Classroom Teachers Association, CTAJNEA (Chestangue) (1985) PERB
Decision No. 544.) The Board has also previously held that, since PERB is a forum outside the
collective bargaining agreement, the union does not owe members a duty of fair representation
in proceedings involving PERB. (SEJU Local 1000, CSEA (Burnett) (2007) PERB Decision
No. 1914-S.) Thus, for example, the union's refusal to file an unfair practice charge with
PERB on an employee's behalf does not violate the duty of fair representation. (Ibid.)
Likewise, the Board held that, where a charge did not contain facts to indicate that the
exclusive representative possessed exclusive control over the enforcement of a settlement
agreement which was negotiated on charging party's behalf with the employer, no breach of
the duty of fair representation could be found. (San Bernardino Teachers Association,
CTA/NEA (Cooksey) (2000) PERB Decision No. 1387.)
Thus, to the extent that Adams alleges that UTLA breached the duty of fair representation by
not providing requested assistance regarding issues and/or disputes that arose out of the
Settlement Agreement, the charge fails to state a prima facie case and must be dismissed.
1. 	Medical Coverage Grievance
In this portion of the charge, Adams alleges that UTLA breached its duty of fair representation
with respect to the issue of Adams's medical coverage upon his return to work in January
2009. Adams made his request for assistance, by sending via fax a grievance form and request

LA-CO-1407-E
April 30, 2010
Page 4
for assistance, to UTLA on January 26, 2009. 5 In the February 4, 2010 Warning Letter, I noted
that UTLA asserts that UTLA informed Adams not later than early February 2009
of
the
determination that his grievance would not be meritorious and that UTLA would not pursue the
issue. 	I further noted that,
if
these facts are correct, then this allegation concerns conduct that
occurred outside the six-month statute
of
limitations period, and must be dismissed as
untimely. (Los Angeles Unified School District (2007) PERB Decision No. 1929.)
Adams disputes, however, that UTLA communicated with him regarding the medical coverage
issue in February 2009, or anytime prior to September 2009. As noted in the earlier Warning
Letter, Adams alleges UTLA did not respond to him until September 15, 2009, and thus the
"statute
of
limitations is still active" on this issue. However, the September 15, 2009 e-mail
message referenced in the charge and amended charges solely concerns the issue raised later
regarding Adams' work assignment, and not his medical coverage.
In cases alleging a breach
of
the duty
of
fair representation, the six-month statutory limitations
period begins to run on the date when the charging party, in the exercise
of
reasonable
diligence, knew or should have known that further assistance from the union was unlikely.
(SET[],
United Healthcare Workers West (Rivera) (2009) PERB Decision No. 2025-M.) Thus,
given that the instant charge was filed on December
7,
2009, the charge may be deemed timely
filed only
if
one concludes that, even with "the exercise
of
reasonable diligence," Adams did
not know until after June 7, 2009 that his January 2009 request for assistance on the medical
coverage issue was not being answered affirmatively. Charging Party has not his burden to
provide sufficient evidence to support this claim and/or that this allegation was timely filed.
In any event, Adams argues that this charge allegation is timely filed, his grievance had merit,
and his right to pursue the issue was "completely extinguished" by UTLA's inaction. Adams
appears to be addressing, in part, the standards for a prima facie case summarized in the earlier
Warning Letter. 	With regard to when "mere negligence" might constitute arbitrary conduct
that violates the duty
of
fair representation, the Board observed in Coalition
of
University
Employees (Buxton) (2003) PERB Decision No. 1517-H that, under federal precedent, a
. 	,
	1·
	' 	h 	, 	,
	""
. 	.
	,,.
	. 	, . h h 	. 	.
..
, 	.	urnon s neg 1gence oreac1 es tne auty or rair representat10n
--m
cases m wn1c 1
tr
e
mct1v1C1ua1
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, at p. 1274; see also, Robesky
v.
Quantas Empire
Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
However, it is not apparent that UTLA did or could "completely extinguish" Adams's right to
pursue his grievance in a timely manner. 	UTLA notes that Article V of its CBA with the
District provides that a grievance may be filed "by the affected employee or by UTLA." 	Thus,
5 In the amended charges, Adams further asserts that he actually requested the filing of
two grievances, with the second issue being a missing paycheck from December 2008.
However, Adams also acknowledges that he received the missing paycheck in March 2009.

LA-CO-1407-E
April 30, 2010
Page 5
it is not evident from the facts that Adams was barred from filing his grievance even
if
UTLA
failed to respond to his request for assistance.
2. 	Return to Work/Transfer Issue
The gravamen
of
this charge allegation is the contention that Adams was entitled to a return to
his former work location, and that UTLA refused to enforce applicable requirements
of
the
CBA that are relevant to this issue. Adams and UTLA each cite various articles
of
the CBA in
support
of
their respective positions as to the merits
of
the claim.
However, as noted earlier, the Settlement Agreement between Adams and the District provided
in part that Adams was "required to report to work, upon the District's notice to him
of
his new
assignment." (Emphasis added.) It is at best unclear, based on the information provided by
Adams, that his agreement with the District envisioned his return to his former position at his
former site location. In any event, as discussed above, UTLA does not owe a duty to Adams
with respect to enforcement
of
the Settlement Agreement.
Further, assuming that the District's assignment
of
Adams implicated any terms
of
the CBA
between UTLA and the District, Adams was able to file a grievance on his own and thus
UTLA's decision not to pursue the matter did not "completely extinguish" the opportunity to
pursue the grievance.
3. 	Payroll Issue
In the amended charges, Adams also alleges that UTLA failed to respond to his requests for
assistance regarding an allegation that the District failed to pay him for seven days. From the
account given
of
this payroll dispute in the charge documents, it appears that this issue also
arises out
of
the payments made ( or not made) by the District under its "make whole"
obligation from the Settlement Agreement.
In December 2009, Adams opened a "payroll inquiry" v1ith the District. On February 4 and
19, 2010, Adams contacted a UTLA representative to request that a grievance be filed. 	Adams
contends that he received no response from UTLA.
By letter dated April 2, 2010, however, UTLA alleges that it did investigate the issue and sent
a letter to Adams in that regard on February 23, 2010. UTLA also asserts that it sentwith the
letter an "Overpayment Data Form" and requested that Adams complete the form and return it
by March 19, 2010. UTLA did not receive the requested form from Adams.
Thus, with respect to this issue, Adams has not met his burden of providing prim.a facie
evidence of a breach of the duty
of
fair representation.
In addition, this charge allegation is subject to dismissal because it appears Adams had the
ability to file a grievance on his own, and because the issue concerns enforcement of the
Settlement Agreement, for the reasons previously discussed.

LA-CO-1407-E
April
30,2010
Page 6
Conclusion
For these reasons the charge, as presently written, does not state a prima facie case.6
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, cleariy labeled Third Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
pe1jury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand comer
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
an amended charge or withdrawal is not filed on or before May 13, 2010,7 PERB
will dismiss your charge.
If
you have any questions, please call me at the above telephone
number.
Sincerely,
Les Chisholm
Division Chief
6 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations
of
fact or
contrary theories of law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (lb id.)
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
February 4,2010
John K. Fu, Attorney
Law Offices of John K. Fu
1505 N. San Fernando Blvd. #A
Burbank, CA 91504
Re: 	John W Adams v. United Teachers of Los Angeles
Unfair Practice Charge No. LA-CO-1407-E
WARNING LETTER
Dear Mr. Fu:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2009. John VI. Adams (Adams or Charging Party)
alleges that the United Teachers of Los Angeles (UTLA or Respondent) violated section
3543.5(b) of the Educational Employment Relations Act (EERA or Act)1 by denying rights
guaranteed by the Act. 2
In the statement of the charge, Adams initially states that this filing concerns:
Second Request for Appeal on Unfair Practice Charge No.
LA-CO-1339-E & Filing ofNew Charge against United Teachers
of Los Angeles for new/additional Unfair Practice Charges[.]
Unfair Practice Charge No. LA-CO-1339-E
Adams filed the unfair practice charge identified as LA-CO-1339-E on April 3, 2008, and
amended the charge on June 13 and July 31, 2008. This earlier charge also alleged that UTLA
had violated EERA by breaching its duty of fair representation. 	The charge was dismissed by
a PERB regional attorney on August 7, 2008, and Adams appealed the dismissal to the Board
itself.
1 EERAis codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
2 For reasons further explained below, the charge will be analyzed instead under a
theory that UTLA breached Adams' right to fair representation guaranteed by EERA section
3544.9 and thereby violated section 3543.6(b). EERA section 3543.5 defines unfair practices
by a public school employer, and the instant charge is filed against UTLA rather thanAdams'
employer-Los Angeles Unified School District (District or LAUSD). 	Thus, the allegation
that UTLA violated EERA section 3543.5(b) must be dismissed.

LA-CO-1407-E
February 4, 2010
Page 2
On March 13, 2009, in United Teachers of Los Angeles (Adams) (2009) PERB Decision
No. 2012, the Board affirmed the regional attorney's decision, and dismissed Adams' charge
without leave to amend. According to PERB case records, Adams did not seek reconsideration
of the Board's decision pursuant to PERB Regulation 32410.3
To the extent that the instant filing seeks to either "amend" or "appeal" the dismissal of
LA-CO-1339-E, the charge must be dismissed. (City of Porterville (2007) PERB Decision
No. 1905-M [the doctrines ofres judicata and collateral estoppel bar the re-filing of an allegation
that has been dismissed]; Marin County Law Library (2004) PERB Order No. Ad-338-M [a
charging party may not attempt to amend a charge after it has been dismissed]./
The "New Charge" against UTLA
Adams initially states that he is filing "a new charge against [UTLA] for the continued failure
to provide fair representation." The statement of the "new charge" consists, verbatim, of the
following:
4. The District violated UTLA-LAUSD Collective Bargaining
Agreement XVI 5.0 Enrollment, "For the hospital, dental, and
vision care plans, an unenrolled employee eligible for enrollment
may submit an application for enrollment at any time . ... 	The
District shall process applications so as to make coverage
effective on the earliest practical date consistent with the plans
provisions, and in no case shall this be later than the first day of
the calendar month following the receipt of the completed
application." My Medical Coverage did not begin until January
9 and Dental did not begin until February 1, though I submitted
my application in person on December 21, 2008. LAUSD forced
me to work without full medical benefits arbitrarily on January
22, 2009 resulting in a said loss of 7 sick days which did not need
to be used untii after February 1, 2009. 	The statute of limitations
is still active on the issue because Mr. Williams did not respond
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies may be purchased from PERB' s Publications Coordinator, 1031 18th
Street, Sacramento, CA 95811-4124, and the text is available at www.perb.ca.gov.
4 The fact that the Los Angeles County Superior Court, in October 2009, dismissed a
claim brought by Adams against UTLA, finding that the Court was an improper venue for a
claim that the EERA duty of fair representation had been breached, does not change the
conclusion stated above. Pursuant to EERA section 3541.5, PERB has exclusive initial
jurisdiction over alleged violations of EERA, and a determination by PERB to dismiss an
unfair practice charge and refuse to issue a complaint is not subject to judicial review under
EERA section 3542(b).

LA-CO-1407-E
February 4, 2010
Page 3
to this issue until September 15, 2009 in his E-mail. And, my
understanding is that by filing a lawsuit the statute of limitations
can be arrested, which I did in October. Finally, the arbitrary
demand that I report to work by LAUSD Attorney Kathleen E.
Collins, before I had full medical benefits originally stemmed
from my 14-month employer retaliatory work blockage, thus
encompassing Protected Activity, Employer Knowledge and
(additionally) Adverse Action. 	See enclosed Exhibit #5 Kinko
Copied Fax of ignored grievance. Finally, Bruce Williams'
Email used vague rational (also as motive) marked Exhibit #6.
PROTECTIVE ACTIVITY: UTLA-LAUSD Article XVI 5.0
Enrollment.
EMPLOYER'S KNOWLEDGE: I will send the E-mail that was
sent to LAUSD Attorney Collins regarding filing of the
aforementioned grievance.
ADVERSE ACTION: LAUSD Attorney Collins forced me to
start work on January 22, 2009 despite warning of the latter
UTLA-LAUSD Contractual Violation. Further, arbitrarily
Coilins would not allow me to see the District Doctor for a exam
and only a referral to my neurologist would suffice since my
primary declined, Dr. Douglas Hopper, since my conditions were
neurological. It is my understanding that by contract returning
employees are required to see the District's Doctor.
5. Second and finally, Bruce Williams refused to file a grievance
regarding a school transfer and expended too much time making
arbitrary excuses as to why LAUSD was in the right. Mr.
Wiiliams' Emailed "thorough and complete analysis" marked
Exhibit #7, solidifies my arguments that UTLA refuses to
represent me no matter how severe the consequences. Most
telling, see enclosed response to Mr. Williams' aforementioned
Email by Employment Law Attorney Chuong Q. Phung of
Parker-Stanbury Law Firm marked Exhibit #8. As such, the new
PERB Charge entails:
PROTECTIVE 	UTLA-LAUSD Article XVI 24.10
Return Rights: 	"An employee returning from a Family Care and
Medical Leave/Absence shall be returnedto the same or
comparable from which on leave and the same location from
which the leave was taken, except that the employee may be
transferred ifsuch a transfer would have been made had the
employee been on duty. "

LA.-CO-1407-E
February 4, 2010
Page 4
EMPLOYER'S KNOWLEDGE: 	I spoke with LAU SD
Placement Coordinator Ezekiel Gonzalez about this matter as a
violation
of
the UTLA-LAUSD Contract and other medical
placement personnel whose name I must research.
ADVERSE ACTION: 	Scheduled for Clay Middle School, UTLA
has ignored further E-mails demanding a grievance, will also
send in as an amendment.
Remedy: 	Return
of
ALL union dues 4 years prior to 2008 and
All union dues since, reasonable attorney fees. 	All enclosed said
monetary damages, consequential and compensatory damages,
interest.
The four exhibits referenced by the statement
of
the "new charge" are summarized as follows,
and are discussed in chronological rather than exhibit number order:
Exhibit #5 is a copy
of
a Grievance Form for Certificated Employees, apparently completed by
Adams regarding his complaint that the "District (LAUSD) has ordered me back to work
although I will not have full medical benefits (Dental) until Feb.
1,
2009 (2/1/2009). No other
LAUSD Certified employee works under these conditions." The copy attached is undated, and
does not include any information showing to whom it was submitted.
Exhibit #7 includes a portion
of
an e-mail message sent by Adams to Bruce Williams5
on
September 3, 2009, and Williams' response dated September 10, 2009. In his e-mail message,
Adams wrote that he was "authorizing, requesting and directing" Williams to file a grievance
regarding LAUSD's violation
of
Adams' return rights as evidenced by the assignment
of
Adams to Clay Middle School rather than a high school, Bravo Medical Magnet. 	Williams'
response, declining to file a grievance, included the following:
After investigating the facts of the matter, as well as a thorough
and complete analysis
of
these facts applied to the contractual
provision you have cited, UTLA has reached the honest and
reasonable conclusion that your claim
of
a violation is without
merit and that you would not prevail in any arbitration which may
result in any such filing. 	An assignment to Clay Middle School is
certainly not the "same" as Bravo Medical Magnet but, indeed,
your assignment qualifies as a "comparable" one, thereby
satisfying the contractual standard or requirement. Both
assignments require a secondary teaching credential, are in a
secondary school setting or site, and both are in a
departmentalized, instructional framework or organizational
5 Williams is an Area Representative for UTLA.

LA-CO-1407-E
February 4, 2010
Page 5
structure. 	Similarly, both assignments use exactly the same
assignment identification code (0736, Secondary Teacher) and
require single-/CORE subject instructional planning and
instruction. In addition, in both your previous and new
assignments, students periodically pass from teacher to teacher
over the course of the day, as opposed to elementary, self
contained classroom settings with one teacher all day.
Exhibit #6 includes Adams' subsequent response to Williams' message. In his September 11,
2009 e-mail message to Williams, Adams wrote in part6 as follows:
Despite my numerous inquiries and requests for grievances and
assistance with LAUSD retaliatory work blockage, this is your
first response to me as paying UTLA member since March 19,
2008.
As such, my UTLA East Area Reps have a history of, including
but not limited to, arbitrarily ignoring my grievances or
undermining them including siding with the District.
Case at hand: Are there other UTLA members who have filed
grievances ( Article XII 24 .10 Return Rights) to remain at the
high school level rather than be transfered [sic] to a middle
school upon returning from sick leave[?]
Williams' response to the September 11, 2009 message from Adams reads as follows:
Your response is not persuasive.
Rather than attempting to provide any evidence to support your
claim of a violation of Article XII, Section 24.10, or advancing
your argument beyond a request into the realm of a rationale and
its merit, you have digressed into other unrelated issues and still
unsubstantiated claims of arbitrary treatment by UTLA. You
have not put forth one reason to support your contention that a
middle school assignment is not comparable to a high school
assignment.
as to your questions, 	mere existence of another case
regarding said Article/Section, in and of itself, does nothing to
substantiate your own claim. Every claim is judged on its merits,
which yours is lacking. 	Similarly, the case of Mr. Caputo-Pearl
6 It is unclear whether Exhibit #6 includes the totality of Adams' message.

LA-CO-1407-E
February 4, 2010
Page 6
was not related to the issue
of
return rights from leave so the
relevance
of
it being raised herein escapes me.
Finally, as to
your
claimed history
of
"UTLA East Area Reps
...
arbitrarily ignoring my grievances
...
," you need not be further
concerned. 	Though this is false and unsubstantiated as well, your
new assignment places you outside the UTLA East Area, thereby
rendering said history concluded. In other words, I am no longer
your Area Representative.
Exhibit #8 is, as referenced by the statement
of
the charge, a September 25, 2009 letter to
Williams from Mr. Phung, an attorney with the Parker-Stanbury law firm.
In
his letter, Phung
urges UTLA and Williams to "immediately investigate the facts and circumstances regarding
[Adams'] potential assignment
to
Clay MS rather than Bravo HS, and take all actions
necessary to ensure that his rights are not being violated." Phung's letter, in part, recited his
understanding that Article XII, Section 24.10 required the return
of
an employee "to the same
or comparable position from which on leave and the same location from which the leave was
taken."7 (Emphasis in original.) Phung also argued that Adams was entitled to reasonable
accommodation under the California Fair Employment and Housing Act, based on an existing
autoimmune disorder, and that the Clay Middle School location, in a heavy industrial area
of
Los Angeles, did not provide such accommodation.
Analysis
of
New Charge
Charging Party has alleged that UTLA denied Charging Party the right to fair representation
guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).8 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.) 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:
7 Both Adams, in his statement
of
the charge, and UTLA, in its position statement
responding to the charge, quote the contract language concerning the "same location"
requirement as being qualified to allow an exception where "the employee may be transferred
if
such a transfer would have been made had the employee been on duty."
8 The statement
of
the charge also makes various assertions that would be more relevant
if the charge were filed against the District, and
if
Charging Party was attempting to establish a
prima facie discrimination violation by the District. However, as noted above, the instant
charge is filed against UTLA and not the District. Notice is taken that Adams filed an unfair
practice charge (LA-CE-5304-E) against the District on March 16, 2009, and that case is
currently pending.

LA-CO-1407-E
February 4, 2010
Page 7
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.].
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, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
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, at p. 1274; see also, Robesky v.
Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
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."
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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)

LA-CO-1407-E
February 4, 2010
Page 8
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
1. 	Medical Coverage Issue
Though not entirely clear, it appears that Adams is alleging UTLA breached its duty of fair
representation with respect to the issue of Adams' medical coverage upon his return to work in
January 2009. However, aside from language quoted from the UTLA-LAUSD contract, the
only information provided by the charge is an undated copy of a grievance form. 	The charge
does not establish that Adams requested assistance on this issue from UTLA or, if so, what
action UTLA took in response. Thus, the charge fails to provide the "who, what, when, where
and how" of an unfair practice and must be dismissed. (State of California (Department of
Food and Agriculture), supra, PERB Decision No. 1071-S.)
According to UTLA's position statement,9 Adams asked Williams on January 26, 2009, to file
a grievance on his behalf. UTLA further asserts that Williams informed Adams not later than
early February 2009 of the determination that such a grievance would not be meritorious and
that UTLA would not pursue the issue. If these facts are correct, 10 then this allegation
concerns conduct that occurred outside the six-month statute oflimitations period, and must be
dismissed as untimely. (Los Angeles Unified School District, supra, PERB Decision
No. 1929.)
2. 	Return to Work Issue
Here, it is clear that Adams made a request to UTLA for assistance in filing a grievance over
the alleged violation of his return rights with respect to the location and nature of his
assignment. 	It is also clear that UTLA declined to pursue the grievance.
As discussed above, however, it is not enough to allege that an exclusive representative has
refused or failed to pursue a grieva11ce 011 a11 employee's behalf. To establish a pri1na facie
9 Except where the facts are disputed, PERB case law does not require a Board agent to
ignore information provided by the Respondent and consider only the facts provided by the
Charging Party. (Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M.)
10 Adams alleges in the statement of the charge that Willi<h111s did not respond to him
until September 15, 2009, and thus the "statute oflimitations is still active" on this issue.
However, the September 15, 2009 e-mail message referenced in the charge concerns the issue
raised later regarding Adams' assignment, and not his medical coverage. Adams also argues
that the statute of limitations is "arrested" by his filing of a lawsuit in October 2009, but he
offers no legal authority for this position and the undersigned is unaware of any such support
for this novel theory.

LA-CO-1407-E
February 4, 2010
Page 9
case for violation
of
the duty
of
fair representation, the Charging Party must allege facts
showing that the union's actions were arbitrary, discriminatory or in bad faith. (Alvord
Educator's Association (Bussman) (2009) PERB Decision No. 2046.) Thus, where a charging
party complained that he communicated to union officials regarding an alleged improper
assignment change, "to no avail," but failed to allege
a,ny
additional facts to demonstrate that
the union abused its discretion or that its actions were without a rational basis or devoid
of
honest judgment, the Charging Party failed to set forth a prima facie case for violation
of
the
duty
of
fair representation. (Ibid) In duty
of
fair representation cases, the burden is on the
charging party to show how an exclusive representative abused its discretion, and not
on
the
exclusive representative to show how it properly exercised its discretion. (United Teachers
Los Angeles (Vigil) (1992) PERB Decision
N(_).
934.)
With respect
to
the alleged violation
of
Adams' return rights under Article XI, Section 24.10,
Williams responded to Adams' request for assistance on September
10
and September 15,
2009. In both communications, Williams provided an explanation
of
UTLA' s reasons for
declining to pursue what UTLA viewed as a non-meritorious grievance. In both
communications, Williams was responsive to the concerns and arguments expressed by
Adams, which focused on his assignment to a middle school rather than a high school and his
belief that his treatment was inconsistent with that afforded other, similarly situated teachers.
On September 25, 2009, an attorney representing Adams raised two other issues with
Williams, namely, the allegation that
,A,..dams
was entitled to return to the "same location" and
that his new assignment raised issues with respect to reasonable accommodation under the
California Fair Employment and Housing Act. The charge does not reflect any response to this
letter by Williams or any other UTLA representative.I I Two factors mitigate against finding
these facts as sufficient to establish a prima facie case. First, the letter from Phung did
not
accurately quote the relevant contract language, in that language was omitted, and the "same
location" concern was not the one expressed by Adams when he asked UTLA to file a
grievance. 	Second, with respect to the reasonable accommodation issue, the charge does not
establish that UTLA' s contract with the District provides for such accommodation. The duty
of
fair representation is limited to contractually-based remedies under the union's exclusive
control and does not extend to a request for reasonable accommodation for a disability under
cover
of
state or federal law. (California State Employees Association (Chen) (2005) PERB
Decision No. 1749-S.)
11
It is noted that Williams, in his e-mail message to Adams dated September 15, 2009,
had informed Adams that he was no longer the UTLA representative for Adams.

LA-CO-1407-E
February 4, 2010
Page 10
Conclusion
For these reasons the charge, as presently written, does not state a prima facie case. 12 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before February 18, 2010, 13
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Les Chisholm
Division Chief
12 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
13 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)