Los Rios Community College District (PERB 0877E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANK 	BAKER,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-237
PERB Decision No. 	877
May 16, 	1991
LANCE 	BERNATH,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-238
WILLIAM 	BROWN,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-239
ANNETTE 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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JOHN 	DARLING,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-241
WILLIAM 	DIONISIO,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-242
DOUGLAS 	GARDNER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-243
ALFRED J. 	GUETLING,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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) 	Case No. 	S-CO-244
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ELENE HOLMES,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS , CFT/AFT,
Respondent.
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DONALD 	KENT,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS., CFT/AFT,
Respondent.
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BILL K. 	MONROE,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS , CFT/AFT,
Respondent.
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RYAN 	POLSTRA,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS , CFT/AFT,
Respondent.
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ROBERT PROAPS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-249
MINA MAY 	ROBBINS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-250
ELMER 	SANDERS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-251
DEL WILSON,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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) 	Case No. 	S-CO-2 52
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GLOYD 	ZELLER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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Appearances: 	Frank Baker, 	Lance Bernath, 	William Brown, 	Annette
Deglow, 	John Darling, 	William Dionisio, 	Douglas Gardner, 	Alfred
J. 	Guetling, 	Elene Holmes, 	Donald Kent, 	Bill K. 	Monroe, 	Ryan
Polstra, 	Robert Proaps, 	Mina May Robbins, 	Elmer Sanders, 	Del
Wilson, 	Gloyd Zeller, 	on their own behalf; 	Robert J. 	Bezemek,
Attorney, 	for Los Rios College Federation of Teachers, 	CFT/AFT.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Frank Baker,
Lance Bernath, 	William Brown, 	Annette Deglow, 	John Darling,
William Dionisio, 	Douglas Gardner, 	Alfred J. 	Guetling, 	Elene
Holmes, 	Donald Kent, 	Bill K. 	Monroe, 	Ryan Polstra, 	Robert Proaps,
Mina May Robbins, 	Elmer Sanders, 	Del Wilson and Gloyd 	Zeller
(Charging Parties) 	of the dismissals 	of their 	separate 	charges
that allege that the Los 	Rios 	College Federation of Teachers,
CFT/AFT 	(Federation) 	violated the Educational 	Employment
Relations Act 	(EERA) 	section 	3544.9,1 as 	enforced under 	section
1EERA is 	codified at Government Code 	section 	3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3544.9 	states:
The 	employee 	organization recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting 	and 	negotiating 	shall
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3543.6(b)2 by 	excluding 	them 	from 	eligibility 	for 	a 	20 	year
longevity, 	4 percent salary bonus 	step, 	when the Federation
negotiated 	the 	current 	collective 	bargaining 	agreement with 	the
Los 	Rios Community College District 	(District).
The 	Charging Parties 	urge 	consolidation of 	their 	17 	separate
charges 	in this 	single appeal. 	Because the allegations 	in the
charges 	are 	identical, 	and the Charging Parties 	are 	similarly
situated, 	the Board 	finds 	consolidation to be appropriate.3 (See
Chaffey Joint 	Union High 	School 	District 	(1988) 	PERB 	Decision
No. 	669.) 	Accordingly, 	this decision constitutes the Board's
resolution of 	each of 	the 	charges 	listed above.
We have reviewed the dismissals 	and, 	finding them to be
free of prejudicial 	error, 	adopt the 	factual 	summaries 	and the
analyses 	as 	the decision of the Board itself. 	However, 	in the
interest 	of 	efficiency, 	the warning and dismissal 	letters 	issued
in each case will not be attached hereto, 	but relevant portions
of 	these 	are 	summarized below.
fairly 	represent 	each 	and 	every 	employee 	in
the appropriate unit.
2EERA 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.
3We 	note also 	that 	the warning and dismissal 	letters 	issued
in 	each 	case were 	substantially 	identical.
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FACTUAL 	SUMMARY
The Charging Parties 	are 	17 	regular part-time 	tenured
instructors hired before November 8, 	1967 	(pre-67 	instructors),
by the District. 	The Federation is 	the 	exclusive bargaining
representative 	for 	the 	certificated bargaining unit 	of which 	the
Charging Parties 	are members. 	The 	Federation and the 	District
are parties 	to 	a 	collective bargaining 	agreement 	effective 	from
July 1, 	1990 to June 30, 	1993.
In 	1977, 	as a result of the court's decision in Deglow 	v.
The Board of Trustees 	(1977) 	69 Cal.App.3d 459 	[138 	Cal.Rptr.
177], 	tenure 	status was granted to approximately 33 pre-67
instructors. 	The Charging Parties were 	included 	in this 	group
of 	teachers. 	However, 	the District 	still maintained two 	separate
salary 	structures, 	one 	for regular 	instructors 	and one 	for part-
time 	evening and 	summer 	school 	instructors. 	Subsequently, 	in the
1980-81 	academic 	year, 	the 	now tenured part-time 	instructors 	were
placed 	on the 	regular 	instructors' 	salary 	schedule by the
District.
In 	1985, 	the District and the Federation added a 	"Step 	20"
to 	the 	regular 	salary 	schedule which provided a 	4 	percent
longevity 	step bonus 	after 20 years 	of 	full-time, 	tenure-track
service. 	The Charging Parties 	contend that 	the 	Federation's 	and
District's 	1985-86 	position was 	to 	exclude the pre-67 	instructors
from eligibility 	for this 	bonus 	step.
Because 	15 of the 	17 pre-67 	instructors objected to
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their placement 	on the 	salary 	schedule by the 	District , 	these
instructors 	began 	"administrative 	type" 	proceedings 	to 	secure
a 	correction of 	their placement on the 	salary 	schedule. 	In
November 	1989, 	one of the Charging Parties was 	notified by the
Federation that 	it would not proceed on his 	behalf 	in this
action, 	as 	it did not believe that a cause of action existed;
the 	other Charging 	Parties 	were 	similarly 	notified 	by 	letter 	of
the 	Federation's 	position 	in this 	regard on or about December 	4,
1989.
On December 6, 	1989, 	subsequent to a presentation made to
the 	Sacramento 	County Board 	of 	Education on behalf 	of 	the pre-67
instructors 	which urged the 	Board 	to 	take 	action 	for proper
salary placement, 	the Federation reversed 	its 	previous 	position
on this 	matter. 	It 	indicated that 	it would file a grievance
seeking proper 	salary placement 	on behalf 	of 	the pre-67
instructors. 	After negotiations 	in March 	1990, 	the Federation
and the District reached a 	settlement 	in this 	matter; 	each
pre-6 7 	instructor was placed on the maximum 	step 	of 	their 	salary
classification and was 	awarded three years 	of 	back 	salary, 	plus
interest.
On or about May 4, 	1990, 	the District and the Federation
completed 	negotiations 	on 	the 	1990-1993 	collective 	bargaining
4Two of the pre-67 	instructors, 	Annette Deglow and Donald
Kent, 	were not placed at 	step 	1 	on the 	salary schedule as were
the other pre-67 	instructors, 	but were placed on the maximum
salary 	step. 	The charging parties 	state this discrepancy was,
"primarily 	. . . 	a 	result 	of 	the 	Los 	Rios 	Teachers 	Association
litigation."
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agreement. 	The 	Federation then notified 	its 	members 	that
negotiations 	had been completed with 	the 	District 	and 	that
the 	contract would be 	submitted 	for ratification. 	On or about
May 	17, 	1990, 	several of the Charging Parties notified the
Federation by 	letter 	of 	their belief 	that 	the 	contract provision
which 	excluded 	them 	from the 	step 	20 	bonus was 	discriminatory;
they 	further demanded 	that 	the 	Federation take 	immediate 	action
to 	correct 	this 	provision 	in the 	salary 	schedule 	of 	the 	1990-93
contract. 	In a letter dated May 29, 	1990, 	the Federation
notified 	the 	Charging Parties 	that 	such 	a proposal 	would 	not 	be
made 	in the current round of negotiations. 	On June 	4, 	1990,
returned ballots were 	counted by 	the 	Federation and 	the 	1990-
1993 	collective 	bargaining 	agreement was 	ratified by 	the 	unit
members. 	Formal 	ratification by the 	District 	occurred on June 	6,
1990.
On December 5, 	1990, 	each of the 	17 Charging Parties 	filed
a 	charge 	alleging that 	the Federation, 	by the 	conduct discussed
above, 	violated its duty of 	fair representation, 	enunciated 	in
EERA section 3544.9. 	Subsequently, 	on or about January 	11, 	1991,
Board agents 	issued warning 	letters 	on each 	charge. 	In response,
timely amended 	charges were 	filed by 	each of the 	17 	Charging
Parties. 	These amended charges 	added additional 	facts 	and
background information. 	Nevertheless, 	all the charges were
dismissed by the Board agents 	on or about February 	1, 	1991.
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THE BOARD AGENTS' 	DISMISSALS
The 	Board 	agents 	dismissed the 	charges 	on the 	ground 	that
Government Code 	section 3541.5(a)5 prohibits the 	issuance of a
complaint 	based 	upon 	an unfair practice which 	occurred more 	than
six months prior to the 	filing of 	the charge. 	Noting the general
rule, 	enunciated 	in San Dieguito Union High 	School 	District
(1982) 	PERB Decision No. 	194, 	that the conduct complained of
must 	either have 	occurred 	or have been discovered within 	the 	six-
month period preceding the 	filing of 	the 	charge, 	the 	agents 	then
stated, 	that with respect to duty of 	fair representation claims
under 	section 	3544.9, 	the 	limitation period begins 	to run on the
date the employee, 	in the exercise of reasonable diligence, 	knew
or 	should have 	known that 	further assistance 	from the 	union was
unlikely. 	(International Union of Operating Engineers, 	Local 	501
(Reich) 	(1986) 	PERB Decision No. 	591-H.) 	The Board agents
concluded 	that 	the 	Charging Parties 	should have 	known that
Federation assistance was 	unlikely after the June 	4, 	1990,
ratification by the Federation. 	Because 	the 	charges were 	filed
on December 	5, 	1990, 	the Charging Parties would need to 	show that
they 	did 	not have 	knowledge 	of 	the 	Federation's 	position prior
5Section 3541.5 	states, 	in relevant part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice charge, 	except that the board
shall not do 	either of the 	following:
(1) 	Issue a complaint in respect of any
charge 	based 	upon 	an 	alleged 	unfair practice
occurring more 	than 	six months 	prior to 	the
filing of 	the 	charge; 	. . .
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to June 	5, 	1990, 	to render the charge timely. 	The Board agents
concluded 	that 	failure by 	the 	Charging 	Parties 	to make 	this
showing 	required dismissal 	of 	the 	charges.
Even assuming that 	the 	charges were 	timely 	filed, 	the 	Board
agents 	further determined 	that 	the 	Charging 	Parties 	failed 	to
establish 	a prima 	facie 	case 	that 	the 	Federation breached 	its
duty of 	fair representation under 	section 	3544.9. 	To 	establish
a 	violation under that 	section, 	a party must 	show that 	the
exclusive 	representative's 	conduct was 	arbitrary, 	discriminatory
or 	in bad 	faith. 	(Rocklin Teachers 	Professional Association
(Romero) 	(1980) 	PERB Decision No. 	124 	(Rocklin). pp. 	6-8.)
This 	standard 	applies 	to 	an exclusive 	representative's 	actions
in contract 	negotiations. 	(Mount 	Diablo 	Education Association
(DeFrates) 	(1984) 	PERB Decision No. 	422; 	Redlands Teachers
Association 	(Faeth and McCarty) 	(1978) 	PERB Decision No. 	72.)
The 	Board 	agents 	explained 	that 	arbitrary 	conduct 	under 	this
standard requires 	a 	showing 	that 	the 	exclusive 	representative's
conduct was without a rational basis, 	or was devoid of honest
judgment. 	(Reed District Teachers Association. 	CTA/NEA 	(Reyes)
(1983) 	PERB Decision No. 	332, p. 	9, 	citing Rocklin, p. 	9, 	citing
DeArroyo v. 	Sindicato de Trabaiadores 	Packing 	(1st Cir. 	1970)
425 	F.2d 	281 	[74 	LRRM 2028].) 	Because 	an exclusive
representative 	is 	not obligated to bargain a particular 	item
benefiting 	certain unit 	members 	(Sacramento 	City 	Teachers
Association (Fanning, 	et al.) 	(1984) 	PERB Decision No. 	428), 	and
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because 	the Charging Parties 	failed to 	allege 	facts6 which 	showed
arbitrary, 	discriminatory, 	or bad 	faith conduct by the
Federation, 	a prima 	facie case had not been stated.
We 	agree with the 	analysis 	and 	conclusions 	expressed 	by 	the
Board agents 	concerning these charges. 	Accordingly, 	the unfair
practice 	charges 	in Cases 	No. 	S-CO-237 	through 	S-CO-253 	are
hereby 	DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
6The Board agents, 	in the warning letters, 	noted:
Your 	conclusion 	in your 	Statement of 	Charge
that 	" . . . 	for the 	Union to negotiate 	a
contract provision which 	again denies 	equal
representation to a 	segment of 	its unit
without 	rational 	and honest 	reason must 	be
classed as 	'arbitrary' 	and 	'grossly
negligent' 	representation which translates
into a breach of 	the duty of 	fair
representation 	. . . " 	does 	not 	set 	forth
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.
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