Mt. Diablo Education Association (De Frates) (PERB 0422E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ELIZABETH 	DeFRATES,
Charging 	Party,
v.
MOUNT DIABLO EDUCATION ASSOCIATION,
Respondent.
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Case 	No. 	SF-CO-197
PERB 	Decision 	No. 	422
October 24, 	1984
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Appearances: 	Roger A. 	Carnagey, 	attorney for
Elizabeth DeFrates.
Before Hesse, 	Chairperson; 	Tovar and Jaeger, 	Members.
DECISION
TOVAR, 	Member: 	Elizabeth DeFrates 	appeals 	the
determination 	of 	a 	regional 	attorney 	of 	the Public 	Employment
Relations Board 	that 	a 	complaint 	should 	not 	issue 	on 	her 	charge
that 	the Mount 	Diablo 	Education Association, 	CTA/NEA
(Association) 	breached 	its 	statutory 	duty 	to 	fairly 	represent
her.1 For 	the 	reasons which 	follow, 	we 	affirm 	the 	regional
1Section 	3544.9 	of 	the 	Educational 	Employment 	Relations
Act 	(Government 	Code 	section 	3540 	et 	seq.) 	provides 	as 	follows:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
Section 	3543.6 	of 	the Act, 	which 	sets 	forth conduct 	of 	employee
organizations which 	shall be 	considered 	unlawful, 	states 	at
)
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attorney's 	determination.
THE 	CHARGE
The 	charge, 	as amended, 	contains 	the allegations which
follow: 	In 	March 	1983, 	the Association 	executed 	a 	collective
bargaining 	agreement 	with 	the 	Mount 	Diablo 	Unified 	School
District 	(District). 	This 	contract was 	a successor 	to a
previous 	agreement 	between 	these parties. 	Among 	other 	things,
it 	contained 	a 	new and 	different 	provision 	on 	involuntary
transfer 	of 	unit members. 	Specifically, 	it modified 	the method
of 	calculating 	seniority 	rankings 	for 	the purpose 	of
identifying 	which 	individuals 	would 	be 	selected 	for 	transfer 	in
the 	event 	the 	District 	experienced 	the 	need 	for 	such 	an 	action.
Under 	the 	involuntary 	transfer 	provision 	set 	forth 	in 	the
older 	contract, 	an 	employee's 	seniority 	rank 	was 	based 	simply
on 	the 	seniority 	list maintained by 	the 	District 	as 	of
November 	1, 	1979. 	This 	District 	roster 	generally 	ranked 	the
unit members 	according 	to 	their 	original 	date of 	hire. 	If 	an
employee 	left 	District 	service but 	later 	returned, 	however, 	his
subsection 	(b) 	that 	it 	shall 	be 	unlawful 	for 	an employee
organization 	to
(b) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
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or 	her 	seniority was 	generally 	revised 	to 	start 	anew, 	dating
from the date of 	rehire. 	The District's practice, 	however, 	was
to make 	occasional 	exceptions 	to 	the 	general 	rule 	on 	employees
with breaks 	in service. 	Thus, 	a small, 	though unspecified,
number 	of 	unit 	members 	with breaks 	in 	service were 	recognized
on 	the 	District's 	roster 	as 	having 	seniority 	dating 	from 	their
original 	date 	of 	hire. 	DeFrates was 	among this 	group.
The 	contract 	negotiated 	by 	the 	Association 	and 	the 	District
in 	1983 	revised 	the 	method 	of 	determining 	seniority. 	Rather
than 	accepting 	the 	rankings 	as 	they 	existed 	on 	the 	District's
list, 	the 	contract 	specified 	that 	the 	seniority 	of 	an 	employee
who 	had a past 	break 	in 	service would 	date 	in all 	cases 	from
his 	or 	her 	date 	of 	rehire 	after 	the break.
The 	effect 	of 	this 	contract 	change was 	to 	lower 	the
seniority 	rankings 	of 	a 	small 	number 	of 	unit members 	and,
consequently, 	to 	advance 	the 	rankings 	of 	a 	different 	and 	larger
group. 	DeFrates was 	among those who, 	having 	taken a break 	in
service, 	lost 	seniority under 	the new contract.
During 	the 	term of 	the 	new contract, 	DeFrates was 	notified
by 	the District 	that 	a 	teacher 	had 	to be 	transferred 	from her
school 	to 	another 	school 	and 	that, 	pursuant 	to the 	involuntary
transfer 	provision 	of 	the 	agreement, 	she 	had been 	identified 	as
the 	individual 	to 	be 	transferred 	because 	of 	her 	low 	seniority
ranking. 	At 	this 	point 	DeFrates 	requested 	the 	assistance 	of
the Association 	in grieving 	the 	transfer, 	but 	the Association
w	
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refused 	to 	offer 	assistance 	based 	on 	its 	expressed 	opinion 	that
the 	District 	was 	in 	compliance 	with 	the 	existing 	contract.
DeFrates 	asserts 	in her 	charge 	that 	the change 	in 	the
method 	of 	calculating 	seniority 	is 	"arbitrary, 	discriminatory
and 	in bad 	faith." 	She 	alleges 	that 	in 	negotiating 	this 	change
the Association 	acted 	to 	strip 	a 	small 	number 	of 	unit 	members
of 	a 	benefit 	and 	to 	award 	that 	benefit 	to 	a 	larger 	group 	"with
no 	objective 	or 	demonstrably 	legitimate 	reason 	for 	the
change." 	Instead, 	the 	change was 	motivated by 	"political
expediency" 	and 	the 	desire 	of 	the Association 	to win 	favor 	with
the majority 	of 	employees 	at 	the 	expense 	of 	a minority.
The 	regional 	attorney's 	investigation 	revealed 	that 	prior
to 	proposing 	the 	above-described 	change 	at 	the 	negotiating
table, 	the Association polled 	its membership on 	the 	idea.
Literature 	accompanying 	the 	polling 	stated 	that 	the 	proposal
had 	been 	suggested 	as 	a means 	of 	eliminating 	the 	existing
unfairness 	experienced 	by 	unit 	members 	with 	continuous 	service
who were 	outranked 	by 	employees 	with 	an 	earlier 	date 	of 	hire 	on
the District's 	seniority 	list but who, 	because of 	a break 	in
service, 	had 	actually put 	in 	fewer 	years 	of 	service with 	the
District. 	The poll 	results 	showed 	that 	a 	substantial 	majority
of 	the members 	favored 	the proposed 	change.
The 	regional 	attorney 	dismissed 	the 	charge 	on 	the 	grounds
that 	it 	did 	not 	contain 	allegations 	that 	the Association's
decision 	to 	negotiate 	the 	change 	in 	the 	contract 	was 	arbitrary,
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discriminatory 	or 	in bad 	faith. 	He 	concluded 	instead 	that 	the
change 	was 	legitimately motivated 	by 	the 	Association's 	desire
to 	remedy 	the 	unfairness 	in 	the 	old 	contract 	to 	those without 	a
break 	in 	service.
DISCUSSION
On appeal, 	DeFrates advances 	two theories 	in support 	of 	her
claim that 	the Association's 	conduct, 	as alleged, 	violated the
duty 	of 	fair 	representation. 	First, 	she asserts 	that 	the old
contract, 	as 	interpreted by an arbitrator's decision, 	"froze"
all 	seniority 	rankings 	of 	the 	unit 	members 	and 	that 	the
Association 	cannot 	lawfully 	negotiate 	any 	change 	which 	would
vary 	those 	rankings. 	In 	essence, 	she argues 	that 	her 	seniority
rank 	under 	the 	old 	contract 	was 	vested.
We 	find 	no 	support 	for 	this 	argument. 	By 	its 	own 	terms,
the 	old 	contract 	was 	effective 	only 	for 	the 	specified 	time
period of July 1, 	1972 through June 	30, 	1982. 	DeFrates does
not 	allege 	that 	any 	language 	in 	the 	contract 	itself 	provided
that 	seniority 	rankings 	determined 	thereby 	would 	be 	permanent.
Indeed, 	the 	involuntary 	transfer 	provision 	of 	that 	agreement
simply provides that, 	during the term of 	the contract, 	if the
District 	needed 	to 	transfer 	a 	unit member, 	it would use 	the
specified 	method 	of 	identifying 	the 	individual 	to 	be
transferred. 	DeFrates 	has 	alleged 	no 	facts 	showing 	that 	the
Association's 	right 	to 	alter 	this 	transfer 	procedure 	in a
successor 	agreement 	is 	any more 	circumscribed 	than 	its 	right 	to
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negotiate 	a change 	in the wage 	rate or 	any other 	term or
condition 	of 	employment. 	DeFrates 	seems 	to 	assert 	that 	the
arbitrator's 	decision, 	which 	fixed 	the 	above-described
interpretation 	of 	the 	transfer 	provision 	in 	the 	old 	contract,
somehow acted 	to 	"freeze" 	the 	former 	method 	of 	calculating
seniority. 	We 	find 	no 	such 	significance 	in 	that 	decision.
Indeed, 	to 	the 	contrary, 	the 	decision 	itself 	expressly 	reminds
the parties 	that 	they 	are 	free 	to 	negotiate 	a change 	in 	the
method 	of 	calculating 	seniority 	set 	forth 	in 	the 	old 	contract.
DeFrates1 second 	theory of 	the 	case 	is 	that 	the 	change 	in
the method 	of 	calculating 	seniority was 	motivated 	by 	the
Association's 	desire 	to 	curry 	favor 	with 	a 	larger 	group 	of 	unit
members 	by 	unfairly 	sacrificing 	the 	legitimate 	interests 	of 	a
smaller 	group. 	Such an act 	of political 	expediency, 	she has
alleged, 	is arbitrary, 	discriminatory, 	and 	in bad faith.
Conduct 	of 	an 	exclusive 	representative 	towards 	a 	unit
member 	which 	is 	arbitrary, 	discriminatory or 	in bad faith, 	we
have 	held, 	violates 	the 	exclusive 	representative's 	duty of 	fair
representation. 	Rocklin Teachers 	Professional 	Association
(3/26/80) 	PERB Decision No. 	124. 	This 	standard extends 	to an
exclusive 	representative's 	actions 	in 	contract 	negotiations.
Redlands Teachers Association 	(9/25/78) 	PERB Decision No. 	72;
Rocklin Teachers Professional Association, 	supra.
DeFrates 	relies on Barton Brands, 	Ltd. 	v. 	NLRB 	(7th Cir.
1976) 	529 	F.2d 	793 	[91 LRRM 2241], 	in which the court found
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that 	a 	union 	violates 	the 	duty of 	fair 	representation when 	it
acts 	solely 	on grounds 	of 	"political 	expediency."
While 	a 	union may 	make 	seniority 	decisions
within "a wide range of reasonableness 	. 	. 	.
in 	serving 	the 	interests 	of 	the 	unit 	it
represents" 	[citation omitted], 	such
decisions 	may 	not 	be 	made 	solely 	for 	the
benefit 	of a stronger, 	more politically
favored 	group 	over 	a 	minority 	group.
The 	union 	must 	show 	some 	objective
justification 	for 	its 	conduct 	beyond
placating 	the 	desires 	of 	the 	majority 	of 	the
unit 	employees 	at 	the 	expense 	of 	the
minority.
In Hardcastle v. 	Western Greyhound Lines 	(9th Cir. 	1962)
303 	F.2d 	182 	[50 	LRRM 2239], 	a union member presented much the
same 	theory 	in 	support 	of 	his 	claim that 	his 	union 	had 	failed
to 	fairly 	represent 	him 	in 	negotiating 	a 	new seniority
provision. 	He 	stated his 	theory as 	follows:
The political 	strength or 	weakness 	of 	a
group 	is 	not a proper basis 	for
discrimination 	as 	between 	groups 	of
employees. 	That 	is, 	a modification of
seniority 	which 	favors 	a 	majority 	group 	over
a 	minority 	and 	has 	no 	other 	rational 	basis
would 	fail 	to meet 	the 	test 	of 	fairness
required 	by 	a 	union 	in 	representing 	its
members. 	[Emphasis 	added.]
The 	court, 	however, 	gave neither 	approval 	nor disapproval 	to
the 	charging party's 	theory. 	Even 	if 	the 	theory were 	a 	correct
statement of 	the 	law, 	held 	the court, 	a 	rational basis for the
new seniority 	rule 	was 	apparent 	from the 	record, 	and 	thus 	no
violation 	of 	the 	duty of 	fair 	representation was 	shown.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• • 	•
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We 	find 	ourselves 	in much 	the 	same 	circumstances 	as 	the
court 	in Hardcastle, 	supra. 	Thus, 	we need not decide the
validity 	of 	the 	charging 	party's 	legal 	theory 	here 	since 	an
"objective 	justification" 	or 	"rational basis" 	for 	the
Association's 	action 	is 	apparent 	from DeFrates' own pleadings.
Her 	factual 	allegations 	describe 	a 	situation 	in which 	some
bargaining 	unit 	members 	with 	a 	break 	in 	service were 	given 	a
date 	of 	hire 	based 	on 	their 	original 	date 	of 	employment 	with
the 	District 	while 	other 	employees, 	otherwise 	identically
situated, 	were assigned a 	date 	of 	hire based on their 	rehire
date. 	Plainly, 	such an 	inconsistent 	practice 	is unfair 	and
undesirable. 	Moreover, 	the arbitrator's 	decision 	incorporated
by DeFrates 	as 	a part 	of 	her 	amended 	charge, 	and 	upon which 	she
emphatically 	relies, 	shows 	that 	the Association was 	unaware 	at
the 	time 	the 	old 	involuntary 	transfer 	provision was 	negotiated
that 	the 	District 	had 	engaged 	in 	this 	inconsistent 	practice 	and
that 	the 	Association's 	position 	in 	the 	arbitration was 	that 	the
contract 	should 	be 	interpreted 	to 	avoid 	those 	inconsistencies
since 	they 	caused 	morale 	problems 	and 	confusion 	among 	the
teachers.
DeFrates 	argues 	on 	appeal 	that 	the 	regional 	attorney 	acted
improperly 	in 	relying 	on 	information 	provided 	by 	the 	respondent
in 	its 	defense 	without 	providing 	charging 	party 	"an 	opportunity
to 	rebut 	said 	defense." 	However, 	because we do 	not 	rely on 	any
CO	
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such 	information offered by 	the 	respondent, 	we 	find 	it
unnecessary 	to 	resolve 	the 	exception.
ORDER
Upon 	the 	foregoing Decision 	and 	the 	entire 	record 	in 	this
matter, 	Case No. 	SF-CO-197 is DISMISSED.
Chairperson Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
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