Los Rios College Federation of Teachers, California Federation of Teachers/American Federation of Teachers (Violett) (PERB 0889E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
LINNELL VIOLETT,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-226
PERB Decision No. 	889
June 19, 	1991
CRAIG 	LEHMAN,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-227
DEBRA BIGGS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-228
LORRAINE 	CHOW,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
Case No. 	S-CO-229
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DORLENE 	CLAYTON,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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Case No. 	S-CO-230
EUNICE GRAVES,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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Case No. 	S-CO-231
CARRIE 	HART,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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Case No. 	S-CO-232
CARMEN 	PADILLA,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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Case No. 	S-CO-233
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JUANITA 	RIPPETOE,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS , CFT/AFT,
Respondent.
Case No. 	S-CO-234
CAROLYN 	SMITH,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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KIYOKO WILLIAMS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, CFT/AFT,
Respondent.
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L.- Case No. 	S-CO-2 3 6
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Appearances: 	Linnell Violett, 	Craig Lehman, 	Debra Biggs,
Lorraine Chow, 	Dorlene Clayton, 	Eunice Graves, 	Carrie Hart,
Carmen Padilla, 	Juanita Rippetoe, 	Carolyn Smith and Kiyoko
Williams, 	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
CARLYLE, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(Board) 	on appeal by Linnell Violett,
Craig Lehman, 	Debra Biggs, 	Lorraine Chow, 	Dorlene Clayton, 	Eunice
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Graves, 	Carrie Hart, 	Carmen Padilla, 	Juanita Rippetoe, 	Carolyn
Smith and Kiyoko Williams 	(Charging Parties) 	of 	the dismissals
of 	their 	separate 	charges 	alleging 	that 	the 	Los 	Rios 	College
Federation of Teachers, 	CFT/AFT 	(Federation) 	violated the
Educational Employment Relations Act 	(EERA) 	section 3544.9,l
as 	enforced under 	section 3543.6(b)2 by excluding them from
eligibility 	for a 	20 year 	longevity, 	four percent 	salary bonus
step, 	when the 	Federation negotiated the 	current 	collective
bargaining 	agreement with the 	Los 	Rios 	Community College 	District
(District).
The 	allegations 	in the unfair practice 	charges 	are
identical, 	and the Charging Parties 	are 	similarly 	situated.
Therefore, 	the Board finds 	consolidation of 	the 	11 	separate
EBRA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3 544.9 	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.
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.
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charges 	into a 	single appeal 	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, 	affirm the 	factual 	summaries 	and the
analyses. 	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.
FACTUAL 	SUMMARY
The Charging Parties 	are 	11 	instructors of 	the District's
Children's 	Center. 	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 	1985, 	the District and the Federation added a 	"Step 	20"
to 	the 	regular 	salary 	schedule which provided a 	four 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 	these 	instructors 	from
eligibility 	for this 	bonus 	step.
3We 	note 	also 	that the warning and dismissal 	letters 	issued
in 	each 	case were 	substantially 	identical.
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On or about May 4, 	1990,4 the District and the 	Federation
completed negotiations 	on the 	1990-93 	collective 	bargaining
agreement. 	Thereafter, 	the Federation notified its members
that 	negotiations 	with 	the 	District had been 	completed 	and 	that
the 	contract would be 	submitted 	for ratification. 	On or about
May 	17, 	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, 	the Federation notified the
Charging Parties 	that 	such a proposal would not 	be made 	in the
current 	round of negotiations. 	On June 	4, 	ratification ballots
were 	returned 	to 	and 	counted 	by 	the 	Federation 	concerning 	the
bargaining unit's 	consent 	to 	the 	1990-93 	collective 	bargaining
agreement. 	Ratification was 	approved by the unit members.
Formal 	ratification by the 	District 	occurred on June 	6, 	and 	the
collective bargaining agreement became 	effective July 	1.
On December 5, 	each of the 	11 	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 	Charging
Parties. 	These 	amended 	charges 	added additional 	facts 	and
4Unless 	otherwise indicated, 	all dates refer to 	1990.
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background information. 	Nevertheless, 	all the charges were
dismissed by the Board agents 	on or about February 	21, 	1991.
BOARD AGENTS' 	DISMISSALS
The 	Board agents 	properly dismissed 	the 	charges 	on the
ground that EERA 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. 	The general 	rule,
enunciated 	in San Dieguito 	Union High School 	District 	(1982) 	PERB
Decision No. 	194, 	provides 	that the conduct complained of must
either have 	occurred 	or been discovered within 	the 	six-month
period preceding 	the 	filing of 	the 	charge. 	The 	Board agents
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 	ratification
by the 	Federation. 	Because 	the 	charges were 	filed on December 	5,
5EERA section 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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the 	Charging 	Parties 	would need 	to 	show that 	they did 	not 	have
knowledge of the Federation's position prior to June 	5, 	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 	properly 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].)
An 	exclusive 	representative 	is 	not obligated 	to bargain a
particular 	item benefiting 	certain unit members. 	(Sacramento
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City Teachers Association 	(Fanning, 	et al.) 	(1984) 	PERB Decision
No. 	428.) 	Furthermore, 	the Charging Parties 	failed to allege
facts6 which 	showed arbitrary, 	discriminatory, 	or bad faith
conduct by the Federation. 	Thus, 	a prima 	facie case had not been
stated.
ORDER
The unfair practice charges 	in Cases Nos. 	S-CO-226 	through
S-CO-2 3 6 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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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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6 The Board agents, 	in the warning letters, 	noted:
g