American Federation of Teachers College Staff Guild, Local 1521 (Mrvichin) (PERB 1132E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE VLADIMIR MRVICHIN,
Charging 	Party,
v.
AMERICAN FEDERATION OF TEACHERS
COLLEGE STAFF GUILD, 	LOCAL 1521,
CFT/AFT, AFL-CIO,
Respondent.
.
)
)
) 	Case No. 	LA-CO-625
PERB Decision No. 	1132
January 	11, 	1996
)
)
)
)
)
)
)
)
Appearances; 	George Vladimir Mrvichin, 	on his own behalf;
Lawrence Rosenzweig, 	Attorney, 	for American Federation of
Teachers College Staff Guild, 	Local 1521, 	CFT/AFT, 	AFL-CIO.
Before Garcia, 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This 	case is before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by George
Vladimir Mrvichin 	(Mrvichin) 	to a PERB administrative 	law judge's
(ALJ) 	proposed decision 	(attached). 	In his decision, 	the ALJ
dismissed 	the 	complaint 	and unfair practice 	charge 	in which
Mrvichin alleged 	that 	the American 	Federation of 	Teachers 	College
Staff Guild, 	Local 	1521, 	CFT/AFT, 	AFL-CIO 	(Guild) 	breached its
duty of 	fair representation guaranteed by 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA), 	thereby violating
EERA section 3543.6(b),1 when it 	failed to assist Mrvichin with
1EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall

his 	grievances 	and when 	it 	refused 	to represent 	him in his
dismissal 	proceedings before 	the personnel 	commission.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits, 	Mrvichin's
exceptions and the Guild's 	response 	thereto. 	The Board 	finds 	the
ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them as 	the decision of 	the 	Board
itself.
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CO-625 are hereby DISMISSED.
Members Garcia and Johnson joined in this Decision.
fairly 	represent 	each and 	every employee 	in
the appropriate unit.
EERA section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE 	VLADIMIR MRVICHIN,
Charging 	Party,
v.
AMERICAN 	FEDERATION OF TEACHERS
COLLEGE STAFF GUILD, 	LOCAL 1521,
CFT/AFT, AFL-CIO,
Respondent.
)
) 	Unfair 	Practice
Case No. 	LA-CO-625	)
)
) 	PROPOSED DECISION
) 	(4/28/95)
)
)
)
)
Appearances: 	Charles A. 	Goldwasser and Corey W. 	Glave,
Attorneys, 	for George Vladimir Mrvichin; 	Lawrence Rosenzweig,
Attorney, 	for American Federation of 	Teachers 	College 	Staff
Guild, 	Local 1521, 	CFT/AFT, AFL-CIO.
Before Allen R. 	Link, 	Administrative Law Judge.
INTRODUCTION
In 1992 and 1993, 	George Vladimir Mrvichin 	(Mrvichin),
an 	employee 	of 	the 	Los Angeles 	Community College District
(District), 	filed a series of grievances. 	The American
Federation of Teachers College Staff Guild, 	Local 	1521, 	CFT/AFT,
AFL-CIO 	(Guild) 	is 	the exclusive 	representative 	for the
District's 	technical/clerical 	bargaining unit. 	Mrvichin 	contends
that 	although 	the 	Guild 	initially 	represented him on 	some 	of 	his
grievances, 	it 	eventually refused to take 	them to arbitration.
He 	insists 	that 	such 	conduct was 	arbitrary, 	discriminatory or 	in
bad faith, 	and therefore, 	in violation of 	its duty of 	fair
representation. 	He 	also alleges 	that 	the Guild 	failed 	to
represent 	him with 	regard 	to 	the District's 	attempt 	to 	terminate
him.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

The 	Guild 	states 	that 	it 	properly 	represented Mrvichin with
regard to 	the 	subject grievances, 	but 	that 	the grievances were
aimed at 	alleged defects 	in manner 	in which the District
implemented 	its 	sexual 	harassment policy. 	Once 	the 	charges 	were
withdrawn 	the 	grievances 	became moot 	and 	there 	was 	nothing 	left
to arbitrate.
With regard to his 	termination, 	the Guild contends 	that 	it
has no obligation under the applicable 	statutes, 	PERB 	case 	law,
or 	the provisions 	of 	the parties' 	collective bargaining agreement
(CBA) 	to represent an employee 	in dismissal proceedings. 	To the
extent 	that 	the Guild initially volunteered to 	represent 	him, 	the
subsequent withdrawal 	of 	such representation was 	due 	to
Mrvichin's 	failure 	to 	cooperate 	and 	insistence 	upon making
unilateral 	and 	counterproductive 	contacts 	with District
officials.
PROCEDURAL 	HISTORY
On February 15, 	1994, 	Mrvichin filed an unfair practice
charge with 	the 	Public Employment 	Relations 	Board 	(PERB 	or Board)
against 	the Guild alleging violations of 	subdivisions 	(a), 	(b)
and 	(c) 	of 	section 3543.6 	of 	the Educational 	Employment Relations
Act 	(EERA 	or 	Act).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
All 	section references, 	unless 	otherwise noted, 	are 	to the
Government Code. 	Subdivision 	(a), 	(b) 	and 	(c) 	of section 3543.6,
in pertinent part, 	state:
It 	shall 	be unlawful 	for an employee
organization to:
22

On April 	22, 	1994, 	the case was placed in abeyance. 	On
September 8, 	1994, 	the abeyance was 	terminated at the request of
the 	charging party.
On September 14, 	1994, 	after an investigation of 	the charge,
PERB's 	Office 	of 	the General 	Counsel 	issued a 	complaint 	alleging
violations 	of 	subdivision 	(b) 	of 	section 3543.6. 	On October 	7,
1994, 	an 	informal 	conference was held in an attempt 	to 	reach
voluntary settlement. 	No 	settlement was 	reached.
A formal 	hearing was 	held by 	the undersigned on 	February 	14,
1995. 	Each side 	filed post-hearing briefs, 	with the 	last brief
being 	filed on April 	19, 	1995. 	The 	case was 	submitted for a
proposed decision at 	that 	time.
FINDINGS 	OF 	FACT
Jurisdiction
It 	is 	found that Mrvichin 	is 	a public 	school 	employee and
the 	Guild 	is 	an employee 	organization and an exclusive
representative within the meaning 	of 	the Act.
(a) 	Cause 	or attempt 	to cause a public
school 	employer to violate 	Section 3543.5.
(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.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith with a public 	school 	employer 	of
any of 	the 	employees 	of which it 	is 	the
exclusive 	representative.
33

Background
Mrvichin was 	East 	Los Angeles 	City College's 	(ELACC 	or
college) 	athletic 	trainer in 	1992 	when the 	school 	administration
decided 	to 	terminate 	its 	football 	program. 	He was 	a vociferous
leader of 	the 	anti-termination group, 	and he 	filed 	several
grievances against 	the proposal. 	These grievances, 	and the
manner 	in which 	they were pursued, 	incurred 	the wrath of 	the
school 	administration. 	In late 	1992 	he was 	charged with the
sexual 	harassment 	of 	one 	of his 	female 	student-trainers. 	He
filed numerous 	grievances 	complaining about 	the manner 	in which
the 	sexual 	harassment procedure was 	implemented. 	The 	grievances
were very 	technical 	and 	dealt 	with 	alleged 	time 	line violations
and/or were based 	on Mrvichin's 	very 	strict 	interpretation 	of 	the
applicable 	regulations.
Later, 	after he was 	terminated, 	in part due 	to the 	sexual
harassment 	charge, 	Mrvichin filed 	(1) 	an appeal 	of his
termination with 	the District's 	Personnel 	Commission, 	charging
the 	termination was 	substantively unjustified, 	and 	(2) 	an unfair
practice 	charge with PERB, 	alleging he was 	terminated due 	to his
exercise 	of 	rights 	protected by 	the 	EERA. 	With 	the assistance 	of
legal 	counsel, 	other than the one 	retained by the Guild, 	he won
both cases.
Mrvichin's 	First 	Contact With 	the Guild
Shortly after he 	filed his 	sexual 	harassment 	grievances 	he
met 	with 	the Guild's 	assistant 	executive 	secretary 	for
grievances, 	Donald Santoianni 	(Santoianni). 	Mrvichin believed
44

Santoianni 	did not 	feel 	that 	he 	(Mrvichin) 	was very knowledgeable
about 	preparing grievances. 	It 	was very 	clear 	to Mrvichin that
Santoianni 	"wanted to 	take 	full 	control 	of 	the writing 	of 	the
grievances 	from that 	point 	forward." 	The Guild agreed 	to
represent 	him in his 	defense 	to 	the 	sexual 	harassment 	charges 	and
on March 9, 	1993, 	had him sign a routine 	"power of
representation" 	agreement. 	This 	agreement 	included 	the 	following
statement:
I 	further agree 	that 	I 	will 	take no action
independent 	of 	my AFT 	representative 	without
first 	conferring with 	the AFT 	and 	rescinding
this 	authorization.
The 	Guild has 	always 	insisted 	that 	grievants 	not
independently 	contact 	the District 	administration. 	This 	is 	to
permit 	the Guild 	to 	evaluate 	and control 	all 	employee 	"grievance"
information going 	to 	the 	college.
Sexual 	Harassment 	Grievances
In 	furtherance 	of Mrvichin's 	grievances both Santoianni 	and
Sandra Lepore, 	the Guild's 	executive 	secretary, 	consulted with
Lawrence Rosenzweig 	(Rosenzweig), 	its attorney, 	and attended
several 	meetings 	with Mrvichin and 	several 	college 	officials,
such as Ron Dyste 	(Dyste), 	dean of 	student 	services, 	and Rose
Najar 	(Najar), 	the 	sexual harassment policy compliance officer.
These meetings 	covered 	such diverse 	subjects 	as 	earned
compensatory time off, 	workers' 	compensation filing, 	and
settlement 	offers 	from the 	involved 	student.
Barbara Kleinschmitt 	(Kleinschmitt), 	the Guild's president
and 	chief 	executive 	officer, 	was 	having a difficult 	time 	trying
5

to 	get Mrvichin 	to 	stop 	filing 	additional 	grievances 	which were
very 	technical 	and 	did nothing more 	than 	delay 	the 	natural
progression 	of 	the 	sexual 	harassment 	procedure 	and negatively
polarize 	the 	involved administration officials, 	such as 	Dyste and
Najar. 	He was 	reluctant 	to take her advice, 	stating 	that 	he was
a 	student, 	faculty member and a 	technical 	employee 	and 	that
therefore, 	he 	could 	file a grievance 	in any of 	these 	three
capacities. 	She 	told him that 	any grievances 	he 	filed 	in his
other 	capacities 	had nothing 	to do with her 	or 	the 	Guild.
However, 	with regard 	to 	the 	grievances 	he 	filed as 	a 	technical
employee, 	and 	for which he was 	requesting 	representation, 	she
wanted him to 	consult 	with 	the Guild prior 	to any new 	filing(s).
Mrvichin believed his 	grievances 	were 	ignored by both 	the
Guild and 	the 	District 	and were 	subsumed within 	the 	substance 	of
the 	sexual 	harassment 	charge 	and defense.
On June 22, 	1993,2 Lepore met with Mrvichin, 	the complaining
student, 	her attorney, 	and Najar, 	to discuss settlement. 	She
recommended Mrvichin 	reject 	the 	attorney's 	proposed 	settlement 	as
it 	required him to agree 	to 	specified admissions. 	The 	settlement
offer was 	rejected.
On June 	25 	Lepore, 	in a telephone 	conversation with
Mrvichin, 	specifically asked for, 	and obtained, 	an agreement 	from
him that 	he 	would not 	file 	any more 	grievances 	without 	the
knowledge 	of 	the Guild. 	She was 	frustrated because his
2Hereafter all date references, unless otherwise noted, 	are to
1993.
66

grievances were 	aimed at 	stopping 	the progress 	of 	the 	sexual
harassment procedure. 	She wanted 	this procedure 	to move 	forward
as 	she believed that 	in 	its 	fourth step, 	an evidentiary hearing,
he 	would be 	found 	"not 	guilty."
Eventually 	the 	charges 	were withdrawn. 	Once 	this 	occurred
there 	was 	no 	need 	for 	further 	representation as 	the 	grievances
became moot. 	However, 	the withdrawal 	only occurred after ELACC
paid the 	student 	a 	substantial 	amount 	of money.
Termination 	Procedures
On August 	18 	Mrvichin was 	told he would be 	given papers
terminating him at 	a meeting 	the 	next 	day. 	Later 	that 	day he
became 	ill 	with 	chest pains 	and was 	taken to a nearby hospital.
He 	had 	suffered a 	severe 	anxiety attack and was 	not 	able 	to
attend the meeting. 	He 	notified Santoianni 	of 	the problem and
asked 	for assistance. 	Santoianni 	agreed 	to go 	to 	the meeting,
but 	it was 	cancelled due 	to Mrvichin's 	illness 	and absence.
Later, 	when he was 	at home under medical 	care 	(his 	doctor
recommended that 	he 	refrain 	from stressful 	situations), 	he asked
the Guild 	to 	intercede with 	the 	college 	to 	obtain a postponement
of 	the 	rescheduled pre-termination hearing. 	The Guild 	requested
such a postponement and the 	request, 	on a limited basis, 	was
granted.
On August 	27, 	Mrvichin wrote 	the Guild 	requesting 	specified
documents. 	He 	ended his 	letter with a 	request 	for an
"understanding" 	regarding the 	"considerable expenses, 	eg mileage,
77

telephone, 	FAX, 	etc. 	in the preparation and processing of our
defence 	[sic] 	in this matter." 	(Emphasis added.)
On August 30, 	Anne Mrvichin, 	charging party's wife, 	sent
letters 	"to a number of 	individuals 	to enlist 	their 	character
assessment" 	of 	her husband.3 She 	did not 	notify 	the 	Guild prior
to 	sending 	out 	such requests.
On September 	10, 	Mrvichin 	filed a 	charge 	of 	discrimination
against 	the 	college 	with 	the 	federal 	Equal 	Employment 	Opportunity
Commission 	(EEOC), 	alleging his 	termination was due 	to racial
discrimination, 	i.e., 	he was 	a Caucasian being discriminated
against by Hispanics. 	He did not 	notify the Guild prior 	to
filing this 	charge.
Request 	for 	Specific 	Representation Agreement
In 	early 	September Mrvichin agreed 	to 	a 	September 	13 	meeting
with Rosenzweig 	to 	discuss 	both potential 	defense 	testimony and
evidence 	and 	the 	problems 	caused by 	his 	continuing 	independent
action(s). 	Mrvichin neither attended nor cancelled the meeting.
On September 	16, 	Rosenzweig wrote a 	letter 	to Mrvichin
stating
. 	. 	. 	the Guild has been concerned about
actions 	you have 	taken without 	consultation
with the Guild. 	. 	. 	.
If you expect 	the Guild to 	represent you, 	we
expect 	you 	to 	consult 	and 	cooperate with 	the
Guild. 	If you 	intend to act 	on your own,
3During 	the 	period 	of 	time 	that 	Mrvichin 	was 	at 	home 	under
doctor's 	care 	the 	flow 	of 	correspondence 	did 	not 	diminish. 	He
explained 	that 	although he was 	unable 	to prepare 	these 	papers 	his
wife did 	it 	for him.
8

then you 	do 	not 	need 	representation 	from the
Guild.
Frankly, 	both the Guild and I 	have 	serious
doubts 	about whether you 	are 	going 	to accept
our advice and representation. 	Therefore, 	I
am enclosing a 	representation 	agreement[4]
which 	lists 	the 	conditions 	under which 	the
Guild will undertake 	to represent you. 	If
you want us 	to represent you, 	and you are
willing 	to accept 	the 	conditions 	in 	the
Agreement, 	please sign the Agreement and
return 	it 	to me 	. . . .
If you decide 	that you do not want 	to 	sign
the Agreement, 	neither I nor the Guild will
represent you. 	If you 	feel you 	cannot 	sign
the Agreement, 	I 	recommend that you hire an
attorney 	immediately.
Mrvichin 	insists 	that 	it was 	through 	this 	letter 	that 	he
first 	learned 	that 	the Guild was 	upset 	with his 	taking
independent action(s). 	He 	insists 	that after receipt 	of 	this
letter, 	he no longer engaged in such behavior. 	However, 	he also
failed 	to 	sign 	the 	proposed 	representation agreement.
4The 	proposed 	representation 	agreement 	would 	have
required Mrvichin to 	(1) 	consult with the Guild before 	filing any
grievances, 	(2) 	obtain the Guild's approval before 	contacting any
District 	employee or administrator, 	(3) 	obtain the Guild's
approval 	before 	initiating any 	legal 	proceedings 	against 	the
District, 	(4) 	cooperate with the Guild in scheduling and
attending meetings, 	and 	(5) 	be truthful with the Guild at all
times.
The 	agreement 	concluded with 	the 	Guild 	retaining 	the
right 	to withdraw 	from representing Mrvichin 	in 	the 	event 	that
he violated the 	agreement, 	failed 	to 	cooperate with 	the 	efforts
of 	the Guild to 	represent 	him, 	or 	took 	"any actions 	which
are 	inconsistent 	with 	the 	representation efforts 	of 	the
Guild . 	. 	. 	."
99

Mrvichin's 	Continuing 	Independent 	Actions
On September 17, 	Elaine Kindle 	(Kindle) 	Mrvichin's
psychologist wrote 	the District 	notifying 	it 	that 	he was 	"not
able 	to participate 	in a response 	to charges" 	against him. 	He
did not 	notify 	the Guild prior 	to 	requesting 	that 	Kindle 	send
such a letter, 	although it was 	sent a copy.
On September 17, 	Mrvichin wrote Herbert C. 	Spillman,
assistant director, 	staff 	relations, 	Employer-Employee Relations
Branch, 	Division of Human Resources 	of 	the District, 	stating that
Omero Suarez, 	president 	of ELACC, 	was prejudiced against him and
that 	this 	should 	disqualify 	him as 	the 	pre-termination hearing
officer.
On September 	18, 	Mrvichin caused a letter to be 	sent 	to
Erlinda N. 	DeOcampo, 	the 	college's 	fiscal 	administrator,
complaining about 	"illness 	or 	injury 	cards" 	which were 	returned
to his home. 	They arrived in such a manner, 	according to him, 	as
to interfere with the U.S. 	mail, 	which he pointed out was a
federal 	offense. 	He did not 	notify 	the Guild prior 	to 	causing
this 	letter to be 	sent, 	although it was 	sent a copy.
On September 21, 	Mrvichin caused a 	letter to be 	sent 	to
Maria Elena Yepes, 	the college's new sexual 	harassment policy
compliance officer, 	advising her that her response 	to a previous
request 	from him and 	the Guild was 	overdue. 	He 	continued,
stating 	that 	this 	delay 	"may represent 	a possible violation" 	of
the District's 	sexual 	harassment policy, 	which 	in turn may 	result
10

in a violation of 	the 	CBA. 	He 	did not 	notify the Guild prior to
sending this 	letter, 	although it was 	sent a copy.
On September 21, 	Mrvichin also 	caused a letter to be 	sent 	to
Santoianni 	thanking him for 	sending 	copies 	of 	his 	personnel 	file
and requesting 	that 	within ten days, 	three more 	grievances be
filed 	on his 	behalf.
The 	Guild 	took 	its 	initial 	steps 	of Mrvichin's
representation regarding his 	termination, 	even 	though 	it 	had no
legal 	obligation to do so. 	The CBA makes 	it very clear, 	in
Article 22, 	Section B.2., 	that the grievance procedure is
not 	available 	for the 	adjustment 	of 	complaints 	relating 	to
" . . . 	dismissals 	for which 	review procedures 	are 	provided by
Personnel 	Commission rules."
Response 	to 	Request 	for 	Representation Agreement
Rather 	than 	signing 	Rosenzweig's 	representation 	agreement,
Mrvichin 	sent 	him a 	letter on September 22 	which 	stated, 	in
pertinent part:
I would upon medical 	release, 	like to
schedule 	an appointment 	with you 	to 	review
and discuss 	the 	"Representation Agreement"
and my case, 	at your convenience, 	in private,
with 	the permission of 	the American
Federation of 	Teachers 	College 	Staff Guild,
Local 1521.
He 	continued with an 	explanation 	of 	the medical 	reasons 	he
failed to attend the 	September 	13 	meeting, 	and concluded with a
request:
Please 	include 	copies 	of 	all 	communications
to 	both 	Sandra 	Lepore 	and Donald 	Santianni
[sic] 	as 	implied in your letter, 	which is
11

attached by this 	reference, 	and please note
that 	no 	carbon 	copies 	are 	referenced.
Mrvichin 	insists 	that 	the 	last 	paragraph was 	inserted as 	he
had doubts 	as 	to whether Rosenzweig 	actually 	represented 	the
Guild. 	He based 	these doubts 	on an absence 	of 	carbon 	copies 	to
the Guild's 	leadership on Rosenzweig's 	September 	16 	letter. 	He
also had 	some 	questions 	about 	the 	nature 	of 	the agreement 	itself,
His 	reference to a 	"private" meeting, 	he insists, 	was an
attempt 	to lower the potential 	stress 	level 	of 	the meeting. 	He
wanted 	to meet 	with Rosenzweig 	and 	Lepore 	and possibly
Kleinschmitt, 	but without 	Santoianni. 	He 	found Santoianni's
attitude 	"counterproductive."
Guild's 	Termination 	of 	Representation
Rosenzweig responded on September 24. 	That 	letter, 	in
relevant part, 	states:
. 	. 	. 	As 	I indicated in my September 16,
1993 	letter to you, 	neither I nor the Guild
will 	represent 	you unless you 	sign the
Representation Agreement 	I 	sent 	to you.
Since you have not 	signed the Agreement, 	we
are not 	going 	to 	represent you.
The Guild 	tried 	to 	represent 	you with 	respect
to 	the 	sexual 	harassment 	claim against 	you
and 	the 	pending 	suspension 	and dismissal 	by
the District. 	However, 	for whatever reason,
you 	create 	obstacles 	for yourself 	and 	the
Guild. 	You prefer 	to 	file a 	constant barrage
of 	hyper-technical 	grievances 	rather 	than
deal 	with the more 	serious 	issue 	of
protecting your 	job.
Because 	of 	your 	lack 	of 	cooperation and your
pattern of 	evasive 	conduct, 	the Guild hereby
withdraws 	from representation 	of 	you 	in all
pending 	m a t t e r s . . . .
12

You are 	in need of 	legal 	representation. 	You
should hire an attorney as 	soon as possible.
Mrvichin's 	Response 	to 	Representation 	Termination
On September 26, 	Mrvichin wrote 	Kleinschmitt 	suggesting 	the
Guild 	could be 	in violation of 	its 	statutory duty 	of 	fair
representation. 	He 	suggested that 	as 	an alternative 	to 	either
using 	Rosenzweig 	or denying 	him representation, 	the Guild 	should
consider hiring Attorney Charles Goldwasser 	(Goldwasser), 	as 	an
alternative. 	Mrvichin's 	wife 	had 	contacted Goldwasser 	shortly
after August 	18, 	as 	a possible 	legal 	representative 	for her
husband's 	termination 	case.
After September 26, 	Mrvichin continued to 	file grievances.
He 	estimates 	the 	number at 	somewhere between six and twelve; 	one
of 	which was 	against 	the Guild. 	He 	submitted each of 	these
grievances 	to 	Santoianni 	prior 	to 	filing 	them with 	the 	District.
ISSUE
Did 	the 	Guild 	fail 	to meet 	its 	duty 	of 	fair 	representation
with 	regard 	to Mrvichin's 	grievances 	or termination, 	thereby
violating subdivision 	(b) 	of 	section 3543.6?
CONCLUSIONS 	OF 	LAW
Standard 	for Duty 	of 	Fair 	Representation
In order to prove a violation of 	the 	duty of 	fair
representation,5 the 	charging party must 	show that 	the 	employee
5The 	duty 	of 	fair 	representation 	is 	set 	forth 	in 	section
3544.9. 	It states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the purpose 	of 	meeting and negotiating
13

organization's 	conduct was 	arbitrary, 	discriminatory or 	in bad
faith. 	(Rocklin Teachers 	Professional Association 	(1980) 	PERB
Decision No. 	124 	(Rocklin), 	citing precedent set by the National
Labor Relations 	Board and affirmed by the U. 	S. 	Supreme 	Court 	in
Vaca v. 	Sipes 	(1967) 	386 U.S. 	171 	[64 LRRM 2369].)
The Board in Rocklin, 	affirmed this 	concept, 	as 	set 	forth in
Griffin v. 	United Auto Workers 	(4th Cir. 	1972) 	469 	F.2d 181 	[81
LRRM 2485], 	as 	follows:
. 	. 	. 	A union must 	conform its behavior to
each of these standards. 	First, 	it must
treat 	all 	factions 	and segments 	of 	its
membership 	without 	hostility 	or
discrimination. 	Next, 	the broad discretion
of 	the union in asserting 	the 	rights 	of 	its
individual 	members 	must 	be 	exercised 	in
complete 	good 	faith and honesty. 	Finally,
the union must 	avoid arbitrary 	conduct. 	Each
of 	these 	requirements 	represents 	a distinct
and separate obligation, 	the breach of which
may 	constitute 	the basis 	for 	civil 	action.
The 	repeated references 	in Vaca 	to
"arbitrary" 	union 	conduct 	reflected a
calculated broadening 	of 	the 	fair
representation 	standard. 	[Citations.]
Without 	any hostile motive 	of 	discrimination
and 	in complete good faith, 	a union may
nevertheless pursue 	a 	course 	of 	action or
inaction 	that 	is 	so unreasonable and
arbitrary as 	to 	constitute a violation of 	the
duty of fair representation. 	. 	. 	.
Allegations 	Regarding 	Grievance 	Representation
Charging party insists, 	in its briefs, 	that 	the Guild did
little more 	than read over the grievances. 	However, 	the 	evidence
shows 	that 	its 	representatives 	attended several meetings 	with a
shall 	fairly 	represent 	each and 	every
employee 	in the appropriate unit.
14

number of 	college officials, 	including Dyste and Najar.
Santoianni, 	Lepore 	and Kleinschmitt 	all 	had direct 	contact with
Mrvichin, 	and were personally active 	in 	contacts with the 	college
officials 	as 	well 	as 	counseling Mrvichin with 	regard 	to 	the
sexual 	harassment 	charge 	grievances.
Mrvichin, 	in his brief, 	insists 	that 	the only way to clear
his 	name was 	to proceed 	to 	the 	final 	stage 	of 	the 	college's
sexual 	harassment procedure, 	an evidentiary hearing. 	He
complains 	that 	the 	Guild never pushed 	for 	such a hearing.
However, 	none of 	the grievances Mrvichin filed, 	both as a student
and as 	an employee, 	requested that 	a hearing be held. 	To 	the
contrary, 	most 	requested an 	immediate 	cessation of 	the process 	on
questionable 	procedural 	grounds 	and/or 	that 	the 	student 	or 	the
college processing official, 	Najar, 	be reprimanded and
admonished. 	These grievances, 	on their face, 	were not designed
to 	expedite 	the process, 	but 	rather to delay and obstruct 	it.
In his 	charge, 	Mrvichin complains 	of 	the Guild's 	failure to
take his 	grievances 	to arbitration. 	However, 	the grievances 	for
which 	the 	Guild 	represented him were 	aimed at 	perceived 	defects
in 	the 	college's 	implementation of 	its 	sexual 	harassment 	policy.
Once the 	sexual 	harassment 	charge was withdrawn, 	there was no
point 	in 	further 	litigation of 	the 	grievances.
There was 	insufficient 	evidence proffered at 	the 	hearing 	to
show that 	the 	Guild acted 	in an arbitrary, 	discriminatory 	or bad
faith manner when 	it 	represented Mrvichin with 	regard 	to 	his
sexual 	harassment 	policy grievances.
15

Allegations 	re 	Employment 	Termination Representation
Mrvichin next 	complains 	of 	the Guild's 	September 24
cessation of 	its 	representation of 	him regarding his 	dismissal.
However, 	the CBA is 	quite 	clear that 	"dismissals 	for which review
procedures 	are 	provided by 	Personnel 	Commission 	rules" 	are
outside 	of 	the 	scope 	of 	the 	CBA's 	grievance procedure. 	In Los
Rios College Federation of Teachers 	(1993) 	PERB Decision No. 	992,
PERB 	stated:
The 	duty of 	fair representation does 	not
extend to 	a 	forum that 	has 	no 	connection
with collective bargaining, 	. 	. 	. 	'There
is 	no duty 	of 	fair 	representation 	owed 	to
a unit member unless 	the 	exclusive
representative 	possesses 	the 	exclusive
means 	by which 	such employee 	can 	obtain a
particular remedy. 	. 	. 	.' 	California State
Employees' 	Association 	(Darzins) 	(1985)
-PERB Decision No. 	546-S.
There 	is 	no doubt 	that 	the 	Personnel 	Commission and 	its
rules 	are 	outside 	of 	the 	collective bargaining process 	and the
exclusive 	representative 	does 	not 	possess 	the 	exclusive means 	by
which an 	employee 	can obtain a particular remedy. 	The Guild,
therefore, 	had no duty to 	represent Mrvichin before 	the 	Personnel
Commission.
However, 	Mrvichin 	insists 	that 	once 	the Guild voluntarily
undertook 	representation 	it 	had a duty 	to maintain 	such
representation at 	a 	level 	that 	did not violate 	its 	duty of 	fair
representation. 	Mrvichin 	cites 	no authority 	for 	this
proposition. 	Moreover, 	even if a union incurs an obligation to
fairly 	represent when acting 	in a voluntary 	capacity, 	the Guild's
actions 	here were 	not 	arbitrary, 	discriminatory or 	in bad 	faith.
16

The 	Guild admittedly 	started 	to 	represent 	Mrvichin with
regard to his 	termination. 	Only after 	it was unable 	to 	convince
Mrvichin to allow it 	to 	control 	the 	representation process, 	did
the Guild terminate 	its 	services.
Mrvichin 	insists 	that prior 	to Rosenzweig's 	letter of
September 	16 	he was unaware 	the Guild was 	upset with his 	taking
independent action(s). 	However, 	by his own admission, 	when he
first 	went 	to 	the 	Guild he 	knew 	that 	Santoianni 	"wanted 	to 	take
full 	control 	of 	the writing of 	the 	grievances 	from that 	point
forward." 	This was 	in addition 	to 	the 	"power of 	representation"
agreement 	that 	he 	signed 	in March 	in which he 	agreed 	to 	"take 	no
action 	independent 	of my AFT 	[Guild] 	representative without 	first
conferring . 	. 	. 	."
In addition to Santoianni's 	initial 	comments, 	Mrvichin had
conversations 	with both Kleinschmitt 	and Lepore 	in which he was
told 	that 	they were 	not 	pleased with 	the 	grievances 	he 	was
filing. 	On June 	25 	he agreed with Lepore 	that 	he would not 	file
any more 	grievances 	without 	the 	knowledge 	of 	the Guild.
Even though he knew, 	or should have known, 	that 	the Guild
should be previously 	consulted, 	he 	nonetheless 	unilaterally made
a 	series 	of 	contacts 	with District 	officials 	in August 	and
September.
On August 	3 0 Mrvichin instructed his wife 	to 	send out
letters 	soliciting 	character 	"assessments" 	without 	previously
discussing 	the matter with 	the Guild. 	The 	letters may have been
a good 	idea. 	The problem lies 	not 	in the 	content 	of 	the 	letters,
17

but 	in Mrvichin's 	unilateral 	action. 	The Guild 	cannot 	be
expected 	to 	represent 	someone who 	is 	constantly 	taking
independent 	action and refuses 	to 	consult with 	it 	prior 	to 	such
action.
On 	September 	10 	he 	filed an EEOC 	charge without 	previously
discussing 	the matter with 	the 	Guild. 	Certainly Mrvichin has 	a
right 	to 	file an EEOC 	charge. 	However, 	the Guild should have
been given 	the 	right 	to 	consult 	on 	the matter with 	regard 	to 	the
impact 	such 	charge, 	which alleges 	an entirely different 	and
potentially 	conflicting 	reason 	for his 	termination, 	would have 	on
his case.
He 	agreed 	to 	attend a 	September 	13 	meeting with Rosenzweig
to 	discuss 	both his 	termination 	case 	and his 	independent
action(s). 	When he 	failed to attend the meeting, 	Rosenzweig made
it very clear, 	on September 16, 	that 	if he 	failed to let 	the
Guild have 	control 	over the 	case, 	it would terminate 	its
representation 	of 	him.6
And yet, 	on the very next day, 	without 	the knowledge 	or
consultation of 	the Guild, 	his psychologist wrote 	the District.
On 	the 	same 	day he 	wrote 	another District 	official 	suggesting
Mrvichin complains, in his closing brief, that this "expanded"
representation 	agreement 	was 	evidence 	of 	the 	Guild's 	attempt 	to
treat 	him in an arbitrary and discriminatory manner. 	However, 	it
was Mrvichin's 	conduct 	that 	created the necessity for the expanded
agreement. 	If 	he 	had 	consulted 	with 	the 	Guild 	prior 	to 	his
contacts with District officials, 	there would have been no need for
such 	expansion. 	The 	Guild 	reacted 	to 	Mrvichin's 	behavior 	by
providing 	him 	with 	a 	second 	chance. 	It 	provided 	a 	more 	clearly
defined 	agreement 	- 	one 	in 	which 	his 	rights 	and 	obligations 	were
specifically 	set 	forth. 	Mrvichin 	chose 	not 	to 	sign 	the 	document.
He did so at his peril.
18

that 	the 	ELACC president be 	disqualified as 	his pre-termination
hearing 	officer due 	to anti-Mrvichin prejudice. 	Even 	if 	such
prejudice were 	true, 	a suggestion of 	that 	sort 	is 	a 	risky one and
is 	a 	decision upon which 	the Guild 	should have been 	consulted.
On 	September 	18 	Mrvichin wrote 	another 	college 	official
complaining 	about 	her having 	committed 	a 	possible 	federal
offense. 	Although 	this matter had no direct 	impact 	on Mrvichin's
termination, 	it 	is 	symptomatic 	of 	the problem the Guild was
having with Mrvichin. 	At 	the 	same 	time 	it was 	trying 	to portray
him as a logical, 	responsible, 	reasonable human being who was
unjustly 	charged with 	sexual 	harassment, 	he was 	accusing a
college 	official 	of 	having 	committed a 	federal 	crime 	over mailing
procedures.
On 	September 	21 	he wrote 	a 	third 	college 	official 	suggesting
she may have 	been 	responsible 	for a 	CBA violation due 	to 	her
alleged 	failure 	to provide materials 	to Mrvichin 	in a 	timely
manner.
On 	the 	same 	day he wrote 	the 	Guild asking 	that 	three more
grievances be 	filed within ten days. 	The 	next 	day he wrote
Rosenzweig and at 	the 	same 	time 	he was 	expressing doubts 	that 	he
(Rosenzweig) 	actually represented the Guild, 	he was 	requesting a
private meeting with him 	- 	a meeting 	that would exclude 	at 	least
one 	of 	the Guild's 	staff members. 	This 	requested exclusion was
purportedly due 	to Mrvichin's 	belief 	that 	this 	staff 	member's
attitude 	was 	"counterproductive."
19

All 	of 	this 	correspondence 	came 	from a member of 	the Guild
who 	had previously 	sent 	a 	thinly 	disguised 	request 	for 	expenses
that 	he had been 	incurring 	in his 	own defense.
Mrvichin was 	told on 	four 	separate 	occasions 	that 	he was 	to
consult with the Guild prior to any independent action: 	(1) 	in
the 	initial 	standard 	representation 	agreement 	he 	signed 	for
Santoianni; 	(2) 	in a conversation with Kleinschmitt; 	(3) 	as a
part 	of an agreement 	that he had with Lepore; 	and 	(4) 	by
Rosenzweig's 	initial 	letter. 	He 	ignored these 	requests 	and
agreements 	and 	continued 	to 	take 	action without 	consulting 	with
the Guild. 	Granted, 	he did not 	refuse 	to sign the 	expanded
representation agreement. 	However, 	within five days after
Rosenzweig 	sent 	it 	to him he 	caused 	five 	additional 	contacts 	to
be made with 	college administrators. 	He 	did not 	refuse 	to 	sign
the document, 	but 	he 	certainly made 	it very clear that was 	not
going 	to 	follow its 	provisions.
It 	is 	understandable 	that Mrvichin would 	take 	any and all
measures available 	to protect his 	job. 	However, 	once he went 	to
the 	Guild 	for 	representation 	it 	was 	incumbent 	on him to 	consult
with 	the 	Guild's 	professionals 	prior 	to 	taking 	any actions 	or
making any contacts 	with District 	officials. 	Most 	of 	the actions
he was 	taking were 	of 	little 	real 	value 	to his 	sexual 	harassment
case 	and more 	than 	likely would 	create 	a very 	negative 	attitude
towards 	him and his 	case. 	No union 	can operate 	effectively 	if
its 	client 	is 	taking 	independent action(s) 	at 	the 	same 	time a
solution with 	the 	employer 	is 	being pursued.
20

Certainly, 	Mrvichin had every right, 	if he believed the
Guild was 	not 	acting 	in his best 	interests, 	to 	terminate 	the
representative 	relationship. 	By the 	same 	token, 	the Guild had a
corresponding 	right 	to withdraw its 	representation 	if 	it 	felt
that 	its 	client 	was 	not 	following 	its 	advice and was 	acting
independently 	in 	such a manner as 	to 	effectively undermine 	that
representation process.
An 	examination 	of 	the 	foregoing dictates 	a 	conclusion 	that
the Guild's 	termination of 	representation of Mrvichin was 	not
arbitrary, 	discriminatory or 	in bad 	faith.
Summary
It 	is 	determined that 	the Guild did not violate 	its 	duty of
fair 	representation with 	regard 	to 	either Mrvichin's 	sexual
harassment 	grievances 	or 	termination.
PROPOSED 	ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and the 	entire 	record in this 	case, 	it 	is 	found that 	the American
Federation of Teachers College Staff Guild, 	Local 	1521, 	CFT/AFT,
AFL-CIO did not violate 	subdivision 	(b) 	of 	section 3543.6 	of 	the
Educational 	Employment Relations Act. 	It 	is ORDERED 	that 	all
aspects 	of 	the 	charge and 	complaint 	in this 	case are hereby
DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
323 05, 	this 	Proposed Decision and Order shall become 	final unless
a party 	filed a 	statement 	of 	exceptions 	with 	the 	Board 	itself 	at
the 	headquarters 	office 	in Sacramento within twenty days 	of
21

service 	of 	this Decision. 	In accordance with PERB Regulations,
the 	statement 	of 	exceptions 	should 	identify, 	by page 	citation 	or
exhibit number, 	the portions of the records, 	if any, 	relied upon
for such exceptions. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec.
32300.) 	A document 	is 	considered 	"filed" 	when actually 	received
before 	the 	close 	of business 	(5:00 p.m.) 	on the 	last 	day set 	for
filing. 	. 	.or when sent by telegraph or certified or Express
United States mail, 	postmarked no 	later 	than the 	last 	day set 	for
filing. 	. 	." 	(See Cal. Code of Regs., 	tit. 	8, 	sec. 	32315; Code
Civ. 	P r o c , 	sec. 	1013.) 	Any statement 	of exceptions and
supporting brief 	must 	be 	served 	concurrently with 	the 	filing 	upon
each party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	accompany
each 	copy 	served on a party or 	filed by the Board 	itself. 	(See
Cal. 	Code of Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32410.
Allen 	R. 	Link
Administrative 	Law 	Judge
22