United Teachers of Los Angeles (Strygin) (PERB 2149E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANATOLIY STRYGIN,
Charging Party, Case No. LA-CO-1421-E
v. | PERB Decision No. 2149
UNITED TEACHERS OF LOS ANGELES, December 13, 2010
Respondent.

Appearance: Alek Strygin, Attorney, for Anatoliy Strygin.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Anatoliy Strygin (Strygin) of a Board agent’s dismissal (attached) of his
unfair practice charge. The charge alleged that the United Teachers of Los Angeles breached
its duty of fair representation, set forth in section 3544.9 of the Educational Employment
Relations Act (EERA),' and thereby violated EERA section 3543.6(b), when it failed to timely
assist Strygin with filing a grievance. The Board agent found the charge did not state a prima
facie violation of the duty of fair representation and therefore dismissed the charge.

The Board has reviewed the dismissal and the record in light of Strygin’s appeal and
the relevant law. Based on this review, the Board finds the Board agent’s warning and
dismissal letters to be well-reasoned and a correct statement of the law, and therefore adopts

them as the decision of the Board itself.

' BRERA is codified at Government Code section 3540 et seq. All references herein are
to the Government Code.

ORDER
The unfair practice charge in Case No. LA-C0-1421-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 1 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8385
Fax: (9 1 6) 327-6377
June 2, 2010
Alex Strygin, Attorney
Re: Anatoliy Strygin v. United Teachers ofLos Angeles
Unfair Practice Charge No. LA-CO-1421-E
DISMISSAL LETTER
Dear Mr. Strygin:
The above-referenced unfair practice charge was filed on March 2, 2010. Anatoliy Strygin
(Mr. Strygin or Charging Party) alleges that the United Teachers of Los Angeles (UTLA or
Respondent) violated the Educational Employment Relations Act (EERA)1 by breaching its
duty of fair representation.
Charging Party was informed in the attached Warning Letter dated May 11, 2010, 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 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 on or before May 18, 2010, the charge would
be dismissed.
On May 17, 2010, PERB received correspondence from the Charging Party that stated in
pertinent part as follows:
The Charging Party has reviewed the Warning Letter dated May
11, 2010, which conciudes that UTLA's arbitrary refusal to
represent the Charging Party in enforcing provisions of the
LAUSD-UTLA Collective Bargaining Agreement "does not rise
to the level of a breach of the duty to provide fair representation."
The Charging Party is not prepared to amend the facts asserted in
the Unfair Practice Charge originally filed on May 2, 2010.
However, conclusions reached by the Board in the Warning
Letter are clearly erroneous as a matter of law because (i) the
Board acted inappropriately in sua sponte raising affirmative
defenses on behalf of the Respondent, (ii) the Board violated its
1 EERA is codified at Government Code section 3540 et seq. PERB Regulations are
codified at California Code of Regulations, title 8, section 3100 I et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1421-E
June 2, 2010
Page 2
own rules and deprived the Charging Party
of
its due process
rights in adjudicating affirmative defenses as an element
of
the
prima facie case, prior to affording the Charging Party an
opportunity to rebut these defenses, (iii) the Warning Letter
ignores a crucial element
of
the charge, (iv) the Warning Letter
misinterprets the plain language
of
the Collective Bargaining
Agreement, (v) the Warning Letter misstates the well-established
applicable law. Accordingly, the Charging Party respectfully
requests that the Warning Letter be withdrawn and in support
states as follows ...
While the Charging Party specifically notes that he is not "factually" amending the charge, he
asserts a number
of
legal arguments that will be addressed in greater detail below.
A. 	Board Agent's Role with Respect to Investigating a Charge
In essence, Charging Party challenges the legal conclusion made by the undersigned
in the
May 11, 2010 Warning Letter that no prima facie case
of
a breach
of
the duty
of
fair
representation has been shown to have occurred in this matter, and furthermore alleges that the
undersigned improperly: (1) took into consideration affirmative defenses that should
not
have
been considered as part
of
the prima facie case, and (2) such affirmative defenses had
not
been
previously asserted by the Respondent.
PERB Regulation 32620(b) provides in pertinent part that the powers and duties
of
a board
agent shall be 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) 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
...

LA-CO-1421-E
June 2, 2010
Page 3
Further, the Board held in County of San Joaquin (2003) PERB Decision No. 1570-M, that a
Board agent must accept the plain language of a contract or rule where it is clear and
unambiguous.
With all due respect and contrary to Charging Party's assertions, the undersigned did not take
into consideration any affirmative defenses that were not part of the prima facie case and/or
misinterpret the plain language of the applicable collective bargaining agreement (CBA).
B. 	Prima Facie Case of the Duty of Fair Representation
As previously noted in the May 11, 2010 Warning Letter, the duty of fair representation
imposed on the exclusive representative extends to grievance handling. (United Teachers of
Los Angeles (Collins) (1982) PERB Decision No. 258; Fremont Teachers Association (King)
(1980) PERB Decision No. 125.) 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. Charging Party admits that he is not alleging that UTLA's conduct was either
"discriminatory" or in "bad faith," and therefore only "arbitrary" conduct was examined.
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.) The Board has clearly stated that it is the charging party's burden to
show how a union abused its discretion; it is not the union's burden to show that it properly
exercised its discretion. (United Teachers of Los Angeles (fVyler) (1993) PERB Decision No.
970.)
As previously explained in the Warning Letter, the charge fails to establish how UTLA's
actions-or inactions-were without a rational basis or devoid of honest judgment.
Specifically, Charging Party has failed to establish that UTLA breached its duty of fair
representation by its (1) initial failure to respond to Mr. Strygin' s inquiries for an approximate
two-month period of time and (2) delay of filing a "meritorious"2 grievance on Mr. Strygin' s
behalf for an approximate two-month period of time.
Contrary to the Charging Party's assertion, the undersigned does not take a position
one way or another as to the "merits" of the grievance UTLA filed on behalf of Mr. Strygin.

LA-CO-1421-E
June 2, 2010
Page 4
1. Failure to Respond to Mr. Strygin's Inquiries for Approximately Two Months
The Board has determined that an exclusive representative's failure to return an employee's
correspondence does not, by itself, establish a breach
of
the duty
of
fair representation. (SEIU
Local 790 (Chan) (2007) PERB Decision No. 1892-M.)
Here, although the various UTLA representatives did not immediately respond to Mr. Strygin's
inquiries, there is no dispute that a UTLA Area Representative was communicating about his
concerns within approximately two months
of
Mr. Strygin's initial inquiries. Charging Party
has therefore failed to establish that UTLA breached its duty
of
fair representation in this
matter.
2. Failure to File a Grievance for Approximately Two Months
In Service Employees International Union, Local 250 (Hessong) (2004) PERB Decision No.
1693-M, the Board determined that the union did not violate its duty
of
fair representation
despite taking over two years to process a member's grievance.
Here, there is no dispute that UTLA filed a grievance on behalf
of
Mr. Strygin on April 8,
2010. Charging Party has therefore, failed to establish that UTLA breached its duty
of
fair
representation in this matter.
3. Mere Negligence
Finally, as part
of
the prima facie case, PERB examines whether "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." (Emphasis added; quoting Dutrisac
v.
Caterpillar
Tractor Co. (9th Cir. 1983) 749 F.2d 1270,
atp.
1274; see also, Robesky
v.
Quantas Empire
Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
Charging Party has failed to establish that UTLA's approximate two-month delay in
responding to his inquiries and the approximate two-month delay in filing a grievance
on
his
behalf completely extinguished Mr. Strygin's right to pursue his claim as to the
unhealthy/unsanitary conditions
of
his classroom. Rather, at best, it appears that UTLA' s
delay in both cases constitutes "mere negligence."
Further it should be noted that the Board affirmed the Board agent's dismissal
of
a duty
of
fair
representation charge in Service Employees International Union, Local 99 (Arteaga) (2008)
PERB Decision No. 1991, in which the Board agent had written in the Dismissal letter as
follows:

LA-CO-1421-E
June 2, 2010
Page 5
1. The Duty of Fair Representation
As stated in the July 17 Warning Letter, EERA requires that
exclusive representatives fairly represent each and every
employee in the bargaining unit. (Gov. Code, § 3544.9.) This
duty of fair representation extends to grievance handling.
(Fremont Teachers Association (King) (1980) PERB Decision
No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258 (Collins).) However, a breach of the duty of
fair representation is not stated merely because an exclusive
representative declines to proceed or negligently forgets to file a
timely appeal of a grievance. (SEJU Local 99 (Jones) (2007)
PERB Decision No. 1882; San Francisco Classroom Teachers
Association, CTAJNEA (Bramel!) (1984) PERB Decision No.
430.) The Board has recognized an exception to this rule where
the exclusive representative's negligence foreclosed any remedy
for the grievant. (Coalition of University Employees (Buxton)
(2003) PERB Decision No. 1517-H.)
Here, Mr. Arteaga alleges that Local 99 violated the duty of fair
representation by forgetting to file a grievance on his behalf.
While Local 99 may have been negligent in forgetting to file a
grievance on Mr. Arteaga' s behalf, nothing Local 99 did, or
failed to do, completely extinguished the right of Mr. Arteaga to
pursue his claim. On the contrary, Mr. Arteaga stipulates that
Article V, Section 1.0 of the CBA provides that a grievance may
be filed by an employee or Local 99 on behalf of an employee.
Accordingly, Mr. Arteaga has failed to establish that Local 99
breached its duty of fair representation.
(See also, College of the Canyons Faculty Association (Lynn) (2004) PERB Decision No.
1706.)
As previously noted in the Warning Letter, there is no evidence in the charge that Charging
Party attempted to file a grievance on his own behalf pursuant to the clear and unambiguous
terms of CBA, Article XXVIII, Section 5.0, the special grievance procedure for alleged health
and safety violations. Furthermore, there is no evidence contained in the charge that Charging
Party attempted to use any of the other means of redress listed in CBA, Article XXVIII,
Section 1.6, for resolving health and safety concerns. Thus, Charging Party has failed to
establish that a prima facie case of a breach of the duty of fair representation has been
established and the charge is hereby dismissed.

LA-CO-1421-E
June 2, 2010
Page 6
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 the 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
close of business togethenvith 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.
(Cal. 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

LA-CO-1421.-E
June 2, 2010
Page 7
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.)
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
Wendi L. Ross
Deputy General Counsel
Attachment
cc: Dana S. Martinez, Attorney
__________....,...____ _

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8385
Fax: (916) 327-6377
May 11, 2010
Alek Strygin, Attorney
Re: 	Anatoliy Strygin
v.
United Teachers
of
Los Angeles
Unfair Practice Charge No. LA-CO-1421-E
WARNING LETTER
Dear Mr. Strygin:
The above-referenced unfair practice charge was filed on March 2, 2010. Anatoliy Strygin
(Mr. Strygin or Charging Party) alleges that the United Teachers
of
Los Angeles (UTLA or
Respondent) violated the Educational Employment Relations Act (EERA)1 by breaching its
duty
of
fair representation.2
BACKGROUND
UTLA is the exclusive representative for certificated personnel employed by the Los Angeles
Unified School District (LAUSD or District), including Mr. Strygin. Mr. Strygin is a full-time
mathematics teacher at James Monroe High School.
1. 	Facts Alleged in the Charge
The charge states in part,
Starting in March 2009, I sent repeated requests to the custodial
personnel and administrators at :Monroe High, requesting that the
cleaning and maintenance services be restored, because failure to
clean the classroom results in ongoing health and safety hazards,
such as overflowing trash bins, dust, dirt, repulsive odors,
maintenance irregularities (e.g., door handle not being fixed for
weeks, making the door inoperable and creating a fire hazard),
1 EERA is 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 The parties have submitted to the undersigned various correspondence since the
charge was filed. 	To the extent that such correspondence is relevant, it will be identified and
discussed in greater detail.

LA-CO-1421-E.
May 11, 2010
Page 2
debris on the floor, including papers left behind by students (once
again, a fire hazard). Over twenty (20) such requests are
enclosed with this Unfair Practice Charge
....
Mr. Strygin firmly insists that UTLA' s failure to take immediate action to address the
continual unhealthy and unsanitary condition
of
his classroom constitutes a breach
of
the duty
to provide him with fair representation. The charge states in pertinent part that on February
1,
4,
and 19, 20103 Mr. Strygin,
contacted numerous representatives
of
the Respondent[4] with a
request that the Respondent assist the Charging Party with filing
and processing a grievance against LAUSD, based on repeated
and ongoing health and safety violations at Monroe High, which
LAUSD failed to remedy in violation
of
Article XXVIII ("Health
and Safety")
of
the LAUSD-UTLA Collective Bargaining
Agreement ("CBA"). Over a period
of
almost a month, the
Charging Party's requests were simply
ignored-
the Respondent
failed to provide any response, conduct any investigation, or file
a grievance within the time period prescribed by the CBA.
...
(Emphasis in the original.)
2. 	Relevant Provisions
of
the Collective Bargaining Agreement
There is currently a collective bargaining agreement (CBA) in existence between UTLA and
LAUSD. 	CBA, Article XXVIII, "SAFETY" addresses health and safety issues and will
be
discussed in detail below. Section
1.1
of
this Article, states in pertinent part,
It is the District's commitment to provide safe working
conditions for employees within the operational and financial
limitation that may exist within the District. The District shall
make every reasonable effort to provide school facilities that are
clean, safe, and maintained in good repair and to otherwise
maintain a safe place
of
employment. ,
..
All dates are in 2010 unless otherwise noted.
4 Charging Party's footnote states verbatim, "The following UTLA representatives were
contacted by email, using current addresses provided on the website
...
: Mike Gipson, UTLA
Area Representative, Valley West; Tom Alfano, UTLA Area Representative, Valley West;
Lydia Laurans, UTLA Area Representative, Valley West; Gregg Solkovits, UTLA Secondary
Vice President; Michael Cranshaw, UTLA Chair, Monroe High; and A.J. Duffy UTLA
President."

LA-CO-1421-E
May 11, 2010
Page 3
Section 1.6 states in part, "In addition to the Special Grievance Procedures contained in section
7.0 [sic]
of
this Article, other avenues
of
inquiry, complaint and appeal regarding health and
safety issues exist in the District.
...
"
Section
5.
0 provides a special grievance procedure for health and safety grievances and states
in part,
If, after giving notice
to
the site administration, the employee
believes that an unsafe or hazardous condition persists, the
employee may file a grievance
....
If
the [site administrator's]
response does not resolve the matter, the grievant may within (3)
days file a written appeal with the appropriate Local District
Superintendent or designee and UTLA Area Chair.
...
Within
two days after the administrator's appeal decision is announced,
UTLA must,
if
it wishes
to
arbitrate the matter, notify the District
of
its intention.
Section
7.
0 provides, "[ e]mployees shall immediately notify site administration . . .
of
any
unsafe or hazardous conditions at the site. Upon notification, the District shall take immediate
steps to investigate and correct an unsafe or hazardous condition."
3. 	Parties' Correspondence
to
the Undersigned5
On
April 7, UTLA provided the undersigned with a copy
of
an April 6 e-mail message from
Mr. Strygin to Mr. Gipson that appears to confirm that Mr. Gipson called Mr. Strygin' s home
on April 5 in an attempt to discuss his concerns regarding the cleanliness
of
his classroom. 	Mr.
Strygin was apparently not home at the time
of
the telephone call.
7	On April 7, Mr. Strygin sent the undersigned a letter enclosing an e-mail exchange on April
between Mr. Strygin and Mr. Gipson about the concerns Mr. Strygin has with the cleanliness
of his classroom.
of
	On April 13, UTLA informed the undersigned that a grievance had been filed on behalf 	the
Mr. Strygin on April 8. Attached to the April 13 letter was a copy
of
the April 8 grievance.
5 The Board Agent must accept the charge's factual allegations as true. (Golden Plains
Unified School District(2002) PERB Decision No. J489.) However, absent a factual dispute,
a Board Agent may rely on information that does not appear in the charge, including
information provided by the Respondent. (Service Employees International Union #790
(Adza) (2004) PERB Decision No. 1632-M.)

LA-CO-1421-E
May 11, 2010
Page 4
4. 	Respondent's Position
After the instant charge was filed, UTLA' s correspondence to the undersigned, discussed
above, establishes that the Union's representatives attempted to contact Mr. Strygin both by
telephone and in writing to discuss the concerns as stated by Mr. Strygin and to file a grievance
on his behalf. On or about April
8,
UTLA did in fact file a grievance on behalf
of
Mr. Strygin.
DISCUSSION
The duty
of
fair representation imposed on the exclusive representative extends to grievance
handling. 	(United Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258; Fremont
Teachers Association (King) (1980) PERB Decision No. 125.) 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.]
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 v,as 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.)

LA-CO-1421-E
May 11, 2010
Page 5
There is no dispute that UTLA did not file a grievance on Mr. Strygin's behalf until
approximately April
8.
	Taking Charging Party's facts as true (Golden Plains Unified School
District, supra, PERB Decision No. 1489), the Union acted more than two months after
initially being contacted by Mr. Strygin. 	UTLA's failure to immediately file a grievance on
Charging Party's behalf, however, does not rise to the level
of
a breach
of
the duty to provide
fair representation.
The Board stated in College
of
the Canyons Faculty Association (Lynn) (2004) PERB Decision
No. 1706:
[T]he [collective bargaining agreement] vests the responsibility
of
filing grievances on the individual employee, not [the union].
Certainly, the [union] is responsible for providing advice and
expertise, but [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.
There is no evidence in the charge that Charging Party attempted to file a grievance on his own
behalf pursuant to the clear and unambiguous terms
of
CBA, Article XXVIII, Section 5. 0, the
special grievance procedure for alleged health and safety violations. Furthermore, there is no
evidence contained in the charge that Charging Party attempted to use any
of
the other means
of redress listed in CBA, Article XXVIII, Section 1.6, for resolving health and safety concerns.
While Charging Party asserts that UTLA ignored his request to file a grievance for over two
months, it does not appear that the Union's two-month delay has completely extinguished his
right to file a grievance regarding the unhealthful conditions that continue to exist in
his
classroom. (Service Employees International Union, Local 250 (Hessong) (2004) PERB
Decision No. 1693-M [the union did not violate its duty
of
fair representation despite taking
over two years to process a member's
grieva...rice].)
	In fact, as noted previously, such a
grievance was in fact filed by the Union on April 8 on behalf
of
Mr. Strygin. Charging Party
has therefore, failed to establish that UTLA breached its duty
of
fair representation in this
matter.

LA-CO-1421-E
May 11, 2010
Page 6
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, 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 May 18, 2010,7 PERB
will dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Wendi L. Ross
Deputy General Counsel
WR
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.)
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)