Los Rios College Federation of Teachers (Deglow) (PERB 1140E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS RIOS COLLEGE FEDERATION OF
TEACHERS, 	CFT/AFT LOCAL 2279,
Respondent.
)
)
) 	Case Nos. 	S-CO-348
S-CO-352
S-CO-355
PERB Decision No. 1140
February 27, 	1996
)
)
)
) 1240
)
)
)
Appearances: 	Annette M. 	Deglow on her own behalf; 	Law Offices
of Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of Teachers, 	CFT/AFT Local 2279.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Annette M. 	Deglow
(Deglow) 	to a Board agent's dismissal 	(attached) 	of her unfair
practice 	charges. 	Deglow 	filed three 	unfair practice 	charges
alleging 	that 	the Los Rios 	College 	Federation of Teachers,
CFT/AFT Local 	2279 	(Federation) 	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 published certain newspaper articles 	in the
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
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
1140

union newspaper. 	After 	investigation, 	the Board agent dismissed
the 	charges 	for 	failure 	to 	establish a prima 	facie 	case.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charges,
the warning and dismissal 	letters, 	Deglow's appeal, 	and the
Federation's 	response. 	The Board 	finds 	the warning and dismissal
letters 	to be 	free 	of prejudicial 	error and adopts 	them as 	the
decision of 	the Board itself 	consistent with the 	following
discussion.
DISCUSSION
The 	Federation 	requests 	PERB 	to award 	litigation 	expenses,
claiming 	that 	it 	has 	spent 	significant 	resources 	defending 	itself
against Deglow's numerous 	charges. 	In two recent 	cases, 	the
Board 	strongly 	cautioned Deglow 	that 	the 	repeated pursuit 	of
similar 	charges 	based on 	essentially 	the 	same 	circumstances 	may
constitute an abuse 	of process. 	(See Los Rios 	College 	Federation
of Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1133 	and Los Rios
College 	Federation of Teachers. 	CFT/AFT Local 	2279 	(Deglow)
(1996) 	PERB Decision No. 	1137.) 	The Board declines 	to sanction
Deglow in 	this 	case primarily because 	the warnings 	in 	PERB
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

Decision No. 	1133 	and PERB Decision No. 	1137 were 	recently-
issued, 	after the unfair practice 	charges 	in the present 	case
had been 	filed.
The 	Board hereby reaffirms 	the warnings 	in those 	cases
and wishes 	to 	remind Deglow that 	the 	Board will 	award attorneys'
fees and costs where a case is without arguable merit, 	frivolous,
vexatious, 	dilatory, 	pursued in bad faith or is otherwise an
abuse of process. 	(Chula Vista City School District 	(1990) 	PERB
Decision No. 	834; 	United Professors of California 	(Watts) 	(1984)
PERB Decision No. 	398-H.) 	The 	frequency and number of
unsuccessful 	charges 	Deglow has 	filed at 	PERB 	indicate 	that 	she
is 	approaching 	the 	standard in the 	cited 	cases 	whereby sanctions
are appropriate.
ORDER
The unfair practice charges 	in Case Nos. 	S-CO-348, 	S-CO-352
and S-CO-355 	are 	hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in this 	Decision.
W	
3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
September 29, 	1995
Annette M. 	Deglow
Re: 	Annette Deglow v. 	Los Rios 	College 	Federation of Teachers
Unfair Practice Charge Nos. 	S-CO-348; 	S-CO-352; 	S-CO-355
DISMISSAL 	LETTER
Dear Ms. 	Deglow:
I 	indicated to you, 	in my attached letter dated July 24, 	1995,
that 	the 	above-referenced 	charges 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charges. 	You were 	further advised that, 	unless you amended the
charges 	to 	state 	a prima 	facie 	case 	or withdrew them prior 	to
July 31, 	1995, 	the charge would be dismissed.
On August 4, 	1995, 	I received your amended charges. 	The amended
charges 	reiterate 	your position 	that 	the 	articles published by
the Los 	Rios 	College 	Federation of 	Teachers 	(LRCFT) 	demonstrated
animosity toward you 	and had 	a 	substantial 	adverse 	impact 	on your
relationships at your workplace. 	However, 	for the 	reasons given
in my letter of 	July 24, 	1995 	there 	are no 	facts which
demonstrate 	that 	the 	LRCFT has violated 	its 	duty of 	fair
representation nor 	committed 	acts 	of 	illegal 	reprisal 	or
interference 	with your rights 	under 	the 	Educational 	Employment
Relations Act. 	Therefore, 	I 	am dismissing the 	charge based on
the 	facts 	and reasons 	contained in my July 24, 	1995 	letter.
Right 	to Appeal
Pursuant 	to Public Employment Relations Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by filing
an appeal 	to 	the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and five copies
of 	such 	appeal 	must 	be 	actually received by the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or 	Express 	United 	States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of 	Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is:

Attention: 	Appeals Assistant
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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 of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all 	parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany each 	copy of 	a 	document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
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 of Regs., 	tit. 	8, 	sec. 	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,
ROBERT 	THOMPSON
Deputy General 	Counsel
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Robert Perone

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
(j) Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
•
July 24, 	1995
Annette 	Deglow
Re: 	Annette Deglow v. 	Los 	Rios 	College 	Federation of Teachers
Unfair Practice Charge Nos. 	S-CO-348; 	S-CO-352; 	S-CO-355
WARNING 	LETTER
Dear Ms. 	Deglow:
On May 25, 	June 26, 	and July 3, 	1995, 	you filed the above-
referenced 	charges 	alleging 	that 	the 	Los 	Rios 	College 	Federation
of 	Teachers 	(LRCFT) 	violated its 	duty to fairly represent 	you.
All 	three 	of 	the above 	charges 	regard articles 	in the 	LRCFT
publication 	"The Union News." 	The 	first 	charge 	alleges 	that 	in
the December 	1994 	edition, 	you were discredited when it was
reported 	"that Deglow has 	repeatedly 	filed unsuccessful, 	non-
meritorious 	and untimely unfair practice 	charges 	against 	the
LRCFT." 	You 	allege 	the 	Federation's 	reporting was 	not 	honest,
rational 	or 	in good 	faith.
The 	February 	1995 	publication of 	The Union News 	published a
summary 	of 	a grievance 	that 	you had 	filed. 	That 	summary 	referred
to 	"a part-time 	tenured 	instructor who had been given a 	'needs
improvement' 	evaluation 	in the Spring 	1994 	semester period." 	You
contend 	that 	while 	the 	article 	does 	not 	reference you by name,
the 	article pointed 	the 	finger at 	all 	part-time 	tenured
instructors, 	including yourself, 	and thus questioned your
professional 	competency. 	You 	contend 	that 	the 	Federation was
aware 	that 	making 	your grievance 	public 	would 	enhance 	the
hostility 	felt 	by you within your work place 	and make 	it more
difficult 	"to meet 	your 	employment 	responsibilities." 	You 	had
previously 	advised 	the 	Federation 	that 	you 	did not 	want 	your
grievances made public. 	You 	state 	that 	the publication of 	your
grievance 	was 	in direct 	conflict 	with the 	Federation's 	advertised
policy 	of 	discussing grievances 	in 	the publication 	only with
permission of 	the grievants.
The April 	1995 	edition 	of 	the 	LRCFT publication 	contained an
article 	entitled 	"The Verdict 	Is 	In" 	and described 	"Union
triumphant 	in Deglow v. 	LRCFT and in Elmer 	(John Sander) 	et al.,
v. 	LRCFT." 	You believe 	that you were unfairly singled out 	in the
publication and 	that 	it 	was 	an attempt 	to discourage 	you 	from

Warning 	Letter
S-CO-348, 352, 355
July 24, 	1995
Page 2
further exercises 	of protected activity. 	You 	contend 	that 	the
publication was 	"distorted, 	and not 	in good 	faith."
Government 	Code 	section 	3544.9 	requires 	that 	an 	exclusive
representative 	"for 	the 	purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in 	the 	appropriate
unit." 	Accordingly, 	PERB has held that 	the duty of 	fair
representation attaches 	during 	contract 	negotiations 	(Los 	Angeles
Unified School District 	(1986) 	PERB Dec. 	No. 	599) 	and during
grievance 	handling 	and 	contract 	administration. 	(Rocklin Teachers
Professional Association 	(1980) 	PERB Dec. 	No. 	124.) 	However,
internal 	union 	affairs 	are 	largely 	immune 	from scrutiny under 	the
duty of 	fair representation analysis. 	In SEIU. 	Local 	99
(Kimmett) 	(1979) 	PERB Dec. 	No. 	106 	the Board determined that 	the
fair 	representation duty 	found 	in Government 	Code 	section 	3 544.9
"contains 	no 	language 	indicating 	that 	the 	legislature 	intended
that 	section 	to 	apply 	to 	internal 	union activities 	that 	did 	not
have 	a 	substantial 	impact 	on 	the 	relationships 	of 	unit members 	to
their employers." 	Because 	these 	statements 	do not 	appear 	to have
a 	substantial 	impact 	on your 	relationship 	to your employer, 	these
allegations 	do not 	state 	a prima 	facie violation of 	EERA section
3544.9.
The 	Board 	has 	investigated 	internal 	union 	activities 	which 	have
either 	interfered or discriminated against 	employees' 	by
preventing participation 	in protected activities. 	(California
State Employees Association 	(O'Connell) 	(1989) 	PERB Dec. 	No. 	753-
H ) . 	However, 	speech activity by the Union 	"is accorded generous
protection" 	so 	long as 	it 	is 	related to matters 	of 	legitimate
concern. 	(California Faculty Association 	(Hale, 	et al.) 	(1988)
PERB Dec. 	No. 	693-H.) 	Such free speech rights are 	similar to
those 	accorded an employer. 	(California 	Faculty Association
(Hale). 	supra.) 	The expression of views or opinion does not
-	evidence an unfair practice unless 	there 	is 	a 	threat 	of 	reprisal
or promise 	of 	benefit. 	(Rio Hondo Community College District
(1980) 	PERB Dec. 	No. 	128). 	Your allegations demonstrate no such
threat 	or promise by 	the 	LRCFT.
For these 	reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are 	any factual 	inaccuracies
in 	this 	letter 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty 	of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended 	charge or withdrawal 	from you before July 31, 	1995, 	I

Warning 	Letter
S-CO-348, 352, 355
July 24, 	1995
Page 3
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 355.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
BMC:rmmh