Modesto Teachers Association (Lagos) (PERB 0576E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN LAGOS,
Charging 	Party,
v.
MODESTO 	TEACHERS 	ASSOCIATION,
Respondent.
Case No. 	S-CO-132
PERB Decision No. 	576
June 25, 	1986
Appearance: 	Panos Lagos, 	Attorney 	for John Lagos.
Before Hesse, 	Chairperson; 	Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on appeal 	by Charging 	Party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge alleging that 	the
Modesto Teachers 	Association violated 	sections 	3543.6(b) 	and
3544.9 	of 	the 	Educational 	Employment 	Relations Act 	(Gov. 	Code
sec. 	3540 et seq.).
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the decision of 	the Board
itself, 	in that, 	as 	indicated 	in the Board agent's 	letter, 	the
charge 	failed 	to 	state a prima 	facie 	case.
ORDER
The 	unfair practice charge 	in Case 	No. 	S-CO-132 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD.
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18th STREET, SUITE 102
SACRAMENTO. CALIFORNIA 	93814
(916) 323-3198
April 8, 	1986
Panos Lagos. 	Esq.
Re: 	John Lagos v. 	Modesto Teachers Association
Unfair 	Practice 	Charge No. 	S-CO-132
Dear Mr. 	Lagos:
The 	above-referenced 	charge 	alleges 	that 	the Modesto 	Teachers
Association 	(Association) 	failed 	to 	adequately 	represent
Mr. 	Lagos 	by refusing 	to 	proceed 	to 	arbitration with his
grievance. 	This 	conduct 	is 	alleged 	to violate
sections 	3543.6(b) 	and 	3544.9 	of 	the Educational Employment
Relations 	Act 	(EERA).
I 	indicated 	to you 	in my attached 	letter 	dated March 28, 	1986
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 which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	6hould 	amend 	the
charge accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the 	charge 	to 	state 	a 	prima 	facie case, 	or 	withdrew
them prior to April 4. 	1986. 	it would be dismissed.
I 	have 	not 	received either 	a 	request 	for withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	the 	charge 	based 	on
the facts 	and 	reasons 	contained 	in my March 28 	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 	(California 	Administrative
Code, 	title 8. 	section 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
(5:00 p.m.) 	on April 28. 	1986. 	or sent by telegraph, 	certified
or 	Express 	United 	States 	mail 	postmarked 	not 	later 	than
April 28. 	1986 	(section 32135). 	The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814

Panos Lagos. Esq.
April 8. 	1986
Page 2
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
calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 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 	section 	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 	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 (section 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,
JEFFREY 	SLOAN
Acting General 	Counsel
By Robert Thompson
Regional 	Attorney
4435d

STATE OF CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET. SUITE 103
SACRAMENTO. CALIFORNIA 	95814
(916) 323-3198
Match 28. 	1986
Panos Lagos. Esq.
Re: 	John Lagos v. 	Modesto Teachers Association
Unfair Practice Charge No. 	S-CO-132
Dear Mr. 	Lagos:
The 	above-referenced 	charge 	alleges 	that 	the Modesto 	Teachers
Association 	(Association) 	failed 	to 	adequately 	represent
Mr. 	Lagos 	by 	refusing 	to 	proceed 	to 	arbitration with his
grievance. 	This 	conduct 	is 	alleged 	to violate
sections 	3543.6(b) 	and 	3544.9 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
My 	investigation 	revealed 	the 	following 	facts. 	From 	1978
through 1983 Mr. 	Lagos was 	the head varsity baseball 	coach at
Downey High School 	in the Modesto City School District. 	In
school year 	1983-84 Mr. 	Lagos went 	on a 	leave of 	absence and
Ron Vermeulen 	replaced 	him as 	baseball 	coach. 	When 	he 	returned
in school year 	1984-85 Mr. 	Lagos 	learned 	that Mr. 	Vermeulen had
been 	recommended 	rather 	than himself 	to 	be 	the 	baseball 	coach.
After 	filing a 	complaint with the District Mr. 	Lagos 	was 	chosen
to 	be 	the 	baseball 	coach for 	that 	school 	year. 	On October 	2.
1984, 	Mr. 	Vermeulen with the assistance 	of 	the Association
filed a grievance 	over 	this matter 	(grievance #216-84). 	On
November 	14. 	1984. 	Mr. 	Lagos 	requested the Association to
intervene 	in 	the 	arbitration 	on his 	behalf. 	On November 	28.
1984. 	the Association denied 	this 	request 	and 	stated 	that 	the
question of Mr. 	Lagos's 	intervention 6hould 	be 	left 	to the
arbitrator. 	After 	a 	request 	for 	reconsideration the
Association notified Mr. 	Lagos 	by 	letter 	of February 19. 	1985.
that 	they would 	not 	represent 	him 	in 	his 	motion 	to 	intervene
but would 	provide 	representation 	if 	the 	motion was 	granted. 	On
February 20. 	1985. 	the arbitration was 	held. 	The arbitrator
ruled 	that Mr. 	Lagos 	could 	not 	intervene 	and 	ruled 	against
Mr. 	Vermeulen in the arbitration.
During December 	1984 Mr. 	Lagos 	filed 	a 	grievance 	alleging
discrimination and 	harassment 	by 	the District 	in 	that 	he was
denied 	his 	eighth period 	PE 	class 	to 	prepare 	for 	the 	baseball
season 	(grievance 	#227-84). 	In January 	1985 	an Association

Panos Lagos. 	Esq.
March 28. 	1986
Page 	2
representative wrote 	a 	letter 	to 	the 	board 	in 	support 	of
Mr. Lagos' grievance.
On June 	16. 	1985, 	Mr. 	Lago6 was 	removed 	from his 	coaching
position. 	He 	then filed 	a 	grievance 	(#236-85) 	alleging 	that
loss 	of 	the 	coaching 	position violated 	various 	sections 	of 	the
collective 	bargaining 	agreement 	between 	the 	Association 	and 	the
District. 	On November 	12. 	1985. 	the Association grievance
committee 	determined 	that 	this 	grievance 	would 	not 	proceed 	to
arbitration for 	the 	following 	reasons: 	(1) 	Article 	3.
section g, 	paragraph 	8 	of 	the 	collective 	bargaining 	agreement
states 	in pertinent 	part: 	"The Association agrees 	not 	to
support 	a 	grievance 	essentially 	similar 	to 	one 	denied 	by 	an
arbitrator." 	The Association believes 	that 	this 	grievance 	is
essentially similar 	to Mr. 	Vermeulen's 	grievance 	and 	thus
pursuing 	it 	to 	arbitration would 	violate 	this 	provision 	of 	the
collective 	bargaining agreement; 	(2) 	the 	arbitrator 	in 	the
Vermeulen 	grievance 	noted 	that 	the 	collective 	bargaining
agreement does 	not 	cover 	the 	manner 	for 	selecting 	or 	dismissing
the 	baseball 	coach; 	(3) 	the arbitrator 	in the Vermeulen
grievance 	seemed 	to 	indicate 	that 	the 	board 	of 	education 	is
within 	its 	right6 	to 	appoint 	baseball 	coaches 	on 	a year-to-year
basis; 	(4) 	there are no 	facts which 	indicate 	that 	the District
acted 	in a discriminatory, 	inconsistent, 	or 	arbitrary manner 	in
dealing with Mr. 	Lagos's 	nonappointment 	to 	the 	baseball 	coach
position. 	On appeal 	to 	the Association board 	of 	directors,
Mr. 	Lago6' 	request 	for 	arbitration was 	denied 	on
November 13. 	1985.
Based 	on the 	facts 	described 	above, 	this 	charge 	fails 	to 	state
a 	prima 	facie 	violation 	of 	the EERA 	for 	the 	reasons 	which
follow.
Charging Party 	has 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Party 	the 	right 	to 	fair 	representation
guaranteed 	by EERA 	section 	3544.9 	and 	thereby 	violated 	section
EERA 3543.6(b). 	The 	duty of 	fair 	representation 	imposed 	on 	the
exclusive 	representative 	extends 	to 	grievance 	handling.
Fremont Teachers 	Association 	(King) 	(1980) 	PERB Decision
No. 	125; 	United Teachers of Los Angeles 	(Collins) 	(1983) 	PERB
Decision No. 	258. 	In order 	to 	state a 	prima 	facie violation of
this 	section 	of 	the 	EERA Charging Party must 	show that 	the
Association's 	conduct was 	arbitrary, 	discriminatory, 	or 	in bad
faith. 	In United Teachers of Los Angeles 	(Collins). 	Id.. 	the
Public 	Employment 	Relations 	Board 	(PERB) 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary 	conduct, 	mere 	negligence 	or 	poor

Panos Lagos, Esq.
March 28. 	1986
Page 3
judgment 	in handling 	a 	grievance 	does 	not
constitute a 	breach of 	the union's 	duty.
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
changes 	for 	success 	are 	minimal.
In 	order 	to 	state 	a 	prima 	facie 	case 	alleging 	arbitrary 	conduct
violative 	of 	the duty of 	fair 	representation the 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 	rationale basis 	or
devoid 	of 	honest 	judgment. 	Reed District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332. 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) PERB Decision No. 	124.
Charging Party asserts 	that 	the 	failure 	of 	the Association 	to
pursue Mr. 	Lagos' 	grievance 	is arbitrary because 	the
Association 	had 	previously 	pursued 	a 	similar 	grievance 	filed 	by
Mr. 	Vermeulen. 	This rationale, 	however, 	does not demonstrate
that 	the Association has 	acted 	in a 	manner 	contrary 	to 	the
EERA. 	To 	the 	contrary, 	the 	Association appears 	bound 	by 	its
contractual 	obligation 	not 	to 	pursue 	similar 	grievances 	where
the 	arbitrator 	has 	ruled 	against 	the Association. 	In addition,
it 	is 	reasonable 	that 	the 	Association would 	not wish 	to 	pursue
a 	similar 	grievance 	to Mr. 	Vermeulen's 	after 	they 	had lost
Mr. 	Vermeulen's grievance 	in arbitration. 	Thus, 	the charge
does 	not 	state 	a 	prima 	facie violation of 	the Association's
duty 	of 	fair 	representation.
For 	these 	reasons, 	charge number 	S-CO-132, 	as presently
written, 	does not 	state 	a 	prima 	facie 	case. 	If 	you 	feel 	that
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Panos 	Lagos, 	Esq.
March 	28, 	1986
Page 4
there 	are 	any factual 	inaccuracies 	in 	this 	letter 	or 	any
additional 	facts 	which would 	correct 	the 	deficiencies 	explained
above, 	please 	amend 	the 	charge accordingly. 	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 	6igned 	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 April 	4. 	1986. 	I
shall 	dismiss your 	charge. 	If you 	have 	any questions 	on how to
proceed, 	please call me at 	(916) 	322-3198.
Sincerely.
Robert 	Thompson
Regional 	Attorney
4324d