Los Rios College Federation of Teachers, Local 2279, California Federation of Teachers/American Federation of Teachers (Barth) (PERB 0712E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NORMAN P. 	BARTH,
Charging 	Party,
v.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS, 	LOCAL 2279, 	CFT/AFT,
Respondent.
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) 	Case No. 	S-CO-180
PERB 	Decision No. 	712
December 	29, 	1988
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Appearances: 	Norman P. 	Barth, 	on his own behalf; 	Robert J.
Bezemek, 	Attorney, 	for Los Rios College Federation of Teachers,
Local 22 79, CFT/AFT.
Before Craib, 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	filed by the 	charging party
to 	the 	attached dismissal 	of the 	charge by the 	Board agent. 	The
charge 	alleges 	that 	the 	Los 	Rios 	College 	Federation of 	Teachers
failed 	to 	fulfill 	its 	duty 	of 	fair 	representation with regard 	to
a 	grievance 	filed by the 	charging party. 	This 	conduct 	is 	alleged
to 	violate 	sections 	3544.9 	and 	3543.6 	of 	the 	Educational
Employment 	Relations Act. 	The 	Board agent held that 	the 	charging
party had not 	stated a prima 	facie 	case. 	We 	have 	reviewed 	the
dismissal 	and, 	finding it to be 	free of prejudicial 	error, 	adopt
it 	as 	the Decision of the 	Board itself.

The unfair practice 	charge 	in Case No. 	S-CO-180 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Craib and 	Shank 	joined in this 	Decision.
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STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
September 	1, 	1988
Norman P. 	Barth
re: 	Barth v. 	Los 	Rios Community College Federation of Teachers
Unfair 	Practice Charge No. 	S-CO-180
Dismissal 	and 	Refusal 	to 	Issue 	Complaint
Dear Mr. 	Barth:
The 	above-referenced 	charge 	alleges 	that 	the 	Los 	Rios 	College
Federation of 	Teachers 	(Federation) 	failed 	to 	fulfill 	its 	duty
of 	fair 	representation 	to you with 	regard 	to 	a 	grievance 	filed
on November 	5, 	1987. 	This 	conduct 	is 	alleged 	to violate
sections 	3544.9 	and 	3543.6 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA).
I 	indicated 	to you 	in my attached 	letter dated August 	23, 	1988
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 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the 	charge 	to 	state 	a 	prima 	facie case, 	or withdrew 	it
prior to August 30, 	1988, 	it would be dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an
amended 	charge. 	I 	am therefore dismissing 	the 	charge 	based 	on
the 	facts 	and 	reasons 	contained 	in my August 	23 	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.) 	or 	sent 	by telegraph, 	certified or Express United
States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(section 32135). 	Code of Civil 	Procedure 	section 	1013
shall 	apply. 	The Board's 	address 	is:
.
@11·
I)

Norman P. 	Barth
September 	1, 	1988
Page 	2
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
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,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By Robert 	Thompson
Deputy 	General 	Counsel
Attachment

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
August 23, 	1988
Norman P. 	Barth
Re: 	Barth v. 	Los 	Rios 	College Federation of Teachers
Unfair 	Practice 	Charge 	No. 	S-CO-180
WARNING 	LETTER
Dear Mr. 	Barth:
The 	above-referenced 	charge 	alleges 	that 	the 	Los 	Rios 	College
Federation of Teachers 	(Federation) 	failed 	to 	fulfill 	its 	duty
of 	fair 	representation 	to 	you with 	regard 	to 	a 	grievance 	filed
on November 	5, 	1987.1 This 	conduct 	is 	alleged 	to 	violate
sections 	3544.9 	and 	3543.6 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA).
My 	investigation 	revealed 	the 	following 	facts. 	You 	are 	an
instructor 	at 	the 	Sacramento 	City College campus 	of 	Los 	Rios
Community College District 	(District). 	Your position 	is
exclusively 	represented 	by 	the 	Federation. 	On 	or 	about
August 	5, 	1987, 	the Federation and 	the District 	signed 	a
collective 	bargaining 	agreement 	(agreement) 	to 	be 	effective
from July 1, 	1987 through June 30, 	1990. 	This 	agreement
contains 	a 	provision 	by which 	the 	District 	pays 	the 	Federation
a 	certain 	amount 	of 	money 	to 	maintain 	its 	offices.
Specifically Article 	19, 	section 7 	reads:
LRCFT 	is 	contractually obligated 	to 	share
premises, 	located 	at 	1225 Eighth Street,
Suite 475, 	Sacramento, California, 	95814, with
the California 	Federation of 	Teachers 	(CFT) 	from
August 	1, 	1986 through July 31, 	1989.
a. 	The District 	agrees 	to 	reimburse LACFT 	for
the 	cost 	incurred 	in employing 	a
secretary-clerk 	($26,440 	per 	annum, 	for
salary and 	fringe benefits).
1The 	propriety of 	the 	contract 	clauses 	themselves 	are 	the
subject 	of 	two 	other 	unfair 	practice 	charges 	(S-CE-1216 	and
S-CO-181) 	in which complaints 	issued on July 13, 	1988.

Norman P. 	Barth
August 23, 	1988
Page 	2
b. 	The District 	agrees 	to reimburse LRCFT for
its 	share 	of 	the 	rent 	($6,000 	per 	annum)
until 	the 	LRCFT-CFT 	contract 	expires 	on
July 31, 	1989.
c. 	The District 	agrees 	to 	reimburse LRCFT 	for
its 	share 	of 	any 	rent 	increase which 	is
based 	in direct 	ratio 	to 	the 	rent 	paid 	by
CFT 	($1,186) 	and LRCFT 	($500) 	- 70% to 30%.
d. 	The 	District 	agrees 	to 	reimburse LRCFT 	for
its 	annual 	cost 	of 	office 	rental 	equipment
($4,000), 	telephone 	($2,500), 	paper, 	ink,
and other office supplies 	($4,000).
e. 	On August 	1, 	1989, 	the District 	shall 	in
lieu of "b" and 	"c" 	(above), 	provide LRCFT
with 	an office 	of 	at 	least 	250 	square 	feet
on district-owned 	property, 	e.g., 	conversion
of 	the 	Sacramento 	City College 	"Faculty
Shack." 	The 	site 	is 	to 	be determined 	by
mutual 	agreement.
f. 	In 	return 	for 	the 	above, 	LRCFT agrees 	to
rebate/reduce LRCFT 	fees 	to 	unit members 	by
an 	amount 	equal 	to 	the 	cost 	of 	this
provision.
This 	Agreement 	shall 	remain 	in 	force 	for 	the
length 	of 	the 	contract 	entered 	into 	by 	the
Los 	Rios 	College 	Federation of 	Teachers 	and
the 	Los 	Rios 	Community College District.
Costs 	associated with 	this 	provision 	are
charged 	to 	LRCFT's 	salary 	and 	fringe 	benefit
package. 	At 	the end of 	this 	contract 	term,
LRCFT 	and/or 	the District 	may 	seek, 	through
the negotiation process, 	to continue this
provision 	into 	subsequent 	contracts.
On 	or 	about 	November 	2 	you 	filed 	a 	grievance with 	the 	District
alleging 	that 	section 	1.1.6 	of 	Appendix A 	of 	the 	Collective
Bargaining Agreement 	had 	been violated. 	This 	section deals
with 	provisions 	of 	the 	salary 	schedule 	and 	provides 	that 	unit
members' 	salaries will 	be 	increased 	based 	on certain 	funds
remaining 	in District hands. 	In addition, 	you 	assert 	in the
grievance 	that 	section 	7 	of Article 	19 	creates 	an 	illegal
agency 	fee 	arrangement. 	This 	grievance was denied 	at 	the
president's 	level 	on November 	12 	and 	on 	the District's 	level 	on

Norman P. 	Barth
August 23, 	1988
Page 	3
January 	11, 	1988. 	In 	its 	response 	the District 	asserts 	that 	it
is 	administering 	the contract 	pursuant 	to 	its 	terms 	and 	intent
and 	that 	the 	grievance does 	not 	state 	a misinterpretation,
misapplication 	or 	violation of 	the 	provisions 	of 	the
agreement.
On 	January 	12 you 	requested 	the 	grievance 	be 	taken 	to 	a 	Board
of 	Review 	(arbitration) 	by the Federation. 	On January 22 	the
Federation's 	Executive 	Director 	Richard 	Hemann 	indicated 	in 	a
letter 	to you 	that 	the 	request 	for 	a 	Board 	of 	Review had 	been
denied 	because 	"the 	Federation 	(sic) 	has 	complied with
Article 	19, 	section 	7, 	and Appendix A of 	the contract." 	You
were 	also 	informed 	in 	this 	letter 	that 	this 	decision 	could 	be
appealed 	to 	the 	Federation's 	executive 	board 	in 	accordance with
Federation Bylaw Article 	1, 	section 	5. 	On February 3, 	1988,
you 	met 	with 	the 	Federation's 	Executive 	Board 	and was 	given 	the
opportunity 	to 	present 	your 	arguments 	for 	taking 	your 	grievance
to 	a 	Board of 	Review. 	During 	this 	meeting 	members 	of 	the
Executive 	Board 	asked 	you 	questions 	concerning 	both 	the 	factual
disputes 	present 	in 	the 	grievance 	as well 	as 	the underlying
legal 	theories 	in 	support 	of 	the grievance. 	By 	letter 	dated
February 4, 	Mr. 	Hemann 	informed you 	that 	the Executive Board
had 	voted 	unanimously 	to 	deny 	the 	request 	to 	take your
grievance to 	a 	Board of 	Review.
You 	have 	alleged 	that 	the 	exclusive 	representative 	denied 	you
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
judgment 	in 	handling 	a 	grievance does 	not
constitute 	a 	breach of 	the 	union's 	duty.

Norman 	P. 	Barth
August 23, 	1988
Page 	4
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 was without 	a 	rational 	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.
You 	assert 	that 	the 	Federation's 	inquiry 	into 	the 	legal 	basis
for 	your 	grievance 	demonstrates 	that 	the union was 	acting 	in
bad 	faith. 	However, 	as 	noted 	above, 	PERB held 	in United
Teachers of Los Angeles 	(Collins) 	(1982) 	supra, 	that
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"A union 	is 	also 	not 	required 	to 	process 	an
employee's 	grievance 	if 	the 	chances 	for
success 	are minimal."
The 	Federation's 	determination 	of 	its 	chances 	for 	success 	in
the 	grievance 	must 	necessarily be 	based 	on 	both 	the 	factual 	as
well 	as 	legal underpinnings of 	the grievance. 	Therefore, 	it 	is
not 	inappropriate 	for 	the 	Federation's 	Executive 	Board 	to 	ask
questions 	concerning 	the 	legal 	theories 	upon which 	the
grievance was 	based. 	This 	was 	especially true 	since
Article 	18, 	section 	l.l(a) 	of 	the 	agreement 	requires 	that 	a
grievance be 	a 	complaint 	by 	"a 	unit member 	that 	she/he 	has 	been
adversely affected by a misinterpretation, 	misapplication, 	or
violation of 	the 	provisions 	of 	this 	agreement, 	. . . " 	In order
to 	determine whether 	the 	grievance met 	this 	threshold
requirement, 	it would 	be 	necessary to 	understand 	both 	its
factual 	and 	legal 	bases.

Norman P. 	Barth
August 	23, 	1988
Page 	5
Other 	than 	the 	discussion 	that 	occurred 	at 	the 	Executive 	Board
meeting, 	you 	have 	not 	provided 	evidence which would 	indicate
that 	this 	grievance was 	handled 	in 	a 	perfunctory manner 	or 	that
the union 	acted with bad 	faith, 	discriminatory motive, 	or
arbitrarily. 	Without 	such evidence, 	a 	complaint 	based on this
charge 	cannot 	issue.
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 	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 must 	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 August 30, 	1988, 	I 	shall dismiss your charge. 	If
you have 	any questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel
4857d