American Federation of Teachers College Guild, Local 1521 (Saxton) (PERB 1109E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE SAXTON,
Charging 	Party,
v.
AMERICAN FEDERATION OF TEACHERS
COLLEGE GUILD, 	LOCAL 1521,
Respondent.
)
)
) 	Case No. 	LA-CO-633
PERB Decision No. 	1109
May 	31, 	1995
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Appearances; 	Joyce Saxton, 	on her own behalf; 	Lawrence
Rosenzweig, 	Attorney, 	for American Federation of Teachers College
Guild, 	Local 1521.
Before Carlyle, 	Garcia and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal 	by Joyce Saxton
(Saxton) 	from a 	PERB 	administrative 	law judge's proposed decision
(attached) 	dismissing the unfair practice 	complaint. 	Saxton's
charge alleged 	that 	the American 	Federation 	of 	Teachers 	College
Guild, 	Local 	1521 	(AFT) 	had violated Educational 	Employment
Relations Act 	(EERA) 	sections 3543.6(b), 	3543.1(a), and 3544.9.*
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	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

After reviewing 	the 	entire 	record, 	including the 	transcript,
proposed decision, 	Saxton's appeal, 	AFT's motion to dismiss and
response 	to appeal,2 the Board hereby affirms 	the proposed
decision.
guaranteed by 	this 	chapter.
Section 3543.1 states, 	in pertinent part:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their members 	in their
employment 	relations 	with public 	school
employers, 	except 	that once an employee
organization 	is 	recognized 	or 	certified as
the 	exclusive 	representative 	of 	an
appropriate unit 	pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in 	their
employment 	relations 	with 	the public 	school
employer. 	Employee organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join and may make 	reasonable
provisions 	for 	the dismissal 	of 	individuals
from membership.
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.
2AFT 	filed a motion 	to dismiss 	the appeal 	and a 	response 	to
"findings 	of 	fact-clarification." 	The motion to dismiss 	is 	based
on two procedural 	grounds: 	Untimeliness 	of appeal 	and failure 	to
comply with 	the 	regulation governing appeals. 	The 	Board denies
the motion to dismiss because 	it 	finds 	that 	the appeal 	was 	timely
filed and 	that 	those portions 	of 	the 	appeal 	that 	comply with 	the
regulation are minimally sufficient. 	However, 	those portions of
the appeal 	that 	did not 	comply with PERB Regulation 32135 	(Cal.
Code Regs., 	tit. 	8, 	sec. 	17) 	(references to matters not contained
in the record) 	were not 	considered.
22

ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CO-633 	are hereby DISMISSED WITHOUT LEAVE TO AMEND,
Members 	Carlyle 	and Caffrey joined 	in 	this 	Decision.
W
	3

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE 	SAXTON,
Charging 	Party,
v.
AMERICAN 	FEDERATION OF TEACHERS
COLLEGE GUILD, 	LOCAL 1521,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CO-633
PROPOSED DECISION
(1/24/95)
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)
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Appearances: 	Philip Hoffman, 	Attorney, 	for Joyce Saxton;
Lawrence Rosenzweig, 	Attorney, 	for American Federation of
Teachers 	College Guild, 	Local 	1521.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On May 31, 	1994, 	Joyce Saxton 	(Saxton or Charging Party)
filed 	this 	charge 	against 	the American 	Federation of 	Teachers
College Guild, 	Local 1521 	(AFT). 	On August 30, 	1994, 	a complaint
was 	issued by 	the 	general 	counsel's 	office 	of 	the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	alleging violations 	of
section 3543.6(b), 	3543.1(a), 	and 3544.9 of the Educational
Employment 	Relations Act 	(EERA or 	Act).1 The 	complaint 	alleged
EERA 	is 	codified at 	Government 	Code 	section 3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	are
to 	the Government 	Code. 	The pertinent portion of 	section 3543.6
reads:
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.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

that by urging 	the 	Los Angeles 	Community 	College District
(District) 	to 	take 	administrative action against 	Saxton the AFT
failed in its 	duty to 	fairly represent 	Saxton, 	retaliated against
Saxton because 	of 	her protected activities, 	and 	caused or
attempted to 	cause 	the District 	to violate 	Saxton's 	rights.
A settlement 	conference was 	held, 	but 	the matter 	remained
unresolved. 	A formal 	hearing was held November 28, 	1994.
Transcripts 	were waived and at 	the 	conclusion of 	the 	hearing 	the
parties made 	oral 	arguments. 	The parties were given additional
time 	to 	file 	case 	citations 	and the 	case was 	submitted 	for
decision on December 12, 	1994.
FINDINGS 	OF 	FACT
Joyce 	Saxton 	is 	an 	instructor with 	the Department 	of 	Nursing
at Harbor College, 	one of nine campuses within the District. 	She
Section 3543.1(a) 	reads:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their members 	in their
employment 	relations 	with public 	school
employers, 	except 	that 	once an employee
organization 	is 	recognized 	or 	certified as
the exclusive representative 	. 	. 	. 	only that
employee 	organization may 	represent 	that 	unit
in 	their employment 	relations 	with 	the public
school 	employer. 	Employee 	organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join and may make 	reasonable
provisions 	for 	the dismissal 	of 	individuals
from membership.
Section 3544.9 	reads:
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.
22

is 	a member of 	the 	certificated bargaining unit, 	which is
exclusively 	represented by 	the AFT.
The 	grievance process 	in 	the 	collective bargaining 	agreement
between 	the AFT and 	the District 	includes 	three 	steps. 	The 	first
step 	requires 	a 	formal 	written grievance 	and provides 	for a
conference with a 	campus 	administrator. 	If 	not 	settled at 	that
stage, 	the grievance 	can then be moved to step two, 	an appeal 	to
the 	college president. 	The 	third and 	final 	step 	is binding
arbitration. 	The decision to 	submit 	a grievance 	to binding
arbitration must 	be 	approved by an AFT 	step 	three 	screening
committee 	(screening 	committee). 	The 	screening committee
consists 	of 	the AFT's 	grievance 	representatives 	from all 	nine
campuses, 	plus several other AFT officials.
Saxton's 	first 	grievance was 	filed when she became 	upset
with 	the process 	used 	to 	evaluate 	her.2 The 	evaluation was
written by department 	Chair Nancy Carson, 	who 	is 	also a member of
the bargaining unit 	represented by the AFT. 	The 	evaluations 	are
considered 	"peer" 	evaluations. 	Although 	the evaluation 	included
some negative 	comments, 	it 	rated Saxton as 	satisfactory overall.
Saxton 	filed a 	grievance 	and was 	represented by 	Enid
Diamond, 	the AFT grievance 	representative at Harbor College.
Together, 	Diamond and Saxton met with 	campus Vice 	President 	Pat
Wainwright 	in a 	step 	one meeting. 	The District 	eventually denied
2The date of 	this grievance 	is not 	clear, 	but 	it was
probably prior to March 	1993. 	None 	of 	the 	grievances 	in question
were 	offered 	into 	evidence.
33

the 	grievance 	because 	the 	collective bargaining 	agreement
specifically prohibits 	grievances 	over 	satisfactory 	evaluations.3
Saxton wanted to appeal 	to 	step 	two, 	so Diamond represented
her in a meeting with the 	college president. 	After 	that meeting
the District 	again denied 	the 	grievance 	because 	the 	contract 	did
not 	allow such grievances.
Saxton 	then wanted 	to 	take 	the 	grievance 	to arbitration.
Diamond believed 	the 	grievance was 	a weak 	case 	to 	take 	to
arbitration because 	the 	contract 	so 	clearly prohibited 	such
grievances. 	When the screening committee met, 	Diamond argued
against 	taking 	the 	case 	to arbitration.4
After discussing 	the 	grievance, 	the 	screening 	committee
voted unanimously not 	to 	take 	the 	grievance 	to arbitration.
During the discussion, 	however, 	one committee member suggested,
that 	they 	should hear 	directly 	from Saxton. 	A second meeting was
scheduled and 	Saxton was 	given an 	opportunity 	to present 	her
3Article 28, 	section A(l) 	states, 	in pertinent part:
The grievance procedure 	is 	not 	for the adjustment
of 	complaints 	relating 	to 	. . .
. 	. 	. 	evaluation reports in which
the 	overall 	evaluation 	indicates
that 	the 	employee 	is
'satisfactory.'
4There was 	some vague 	and 	confusing 	testimony 	that 	at 	the
screening 	committee 	meeting 	Diamond 	claimed 	that 	Saxton's
grievance was motivated by Saxton's 	desire 	to 	sue 	the 	District.
It 	is 	unnecessary to 	resolve 	disputed testimony on this 	subject,
however, 	because 	it 	is 	clear that Diamond did not 	support 	taking
the 	case 	to arbitration.
4

arguments directly. 	After the presentation, 	the screening
committee 	again voted unanimously 	to 	drop 	the 	grievance.
Saxton's 	next 	grievance 	occurred around March 	1993, 	when she
felt 	she was being harassed by Carson. 	According 	to Saxton, 	when
Carson had prepared Saxton's 	latest 	evaluation, 	Carson had
solicited 	comments 	about 	Saxton's 	performance 	from students.
Additionally, 	Carson had asked Saxton to 	show Carson 	the 	tests
that 	Saxton had given to students. 	Saxton 	felt 	those 	actions
constituted 	harassment.
Once again, 	Saxton was 	represented at 	steps 	one and two by
Diamond. 	Once again, 	the grievance was not 	taken to arbitration.
The 	reason the 	case was 	dropped was 	disputed at 	the hearing..
Diamond 	testified 	that 	she 	had 	talked 	Saxton 	out 	of 	pursuing 	the
matter because 	it was 	also a weak case. 	Saxton 	testified that
Diamond agreed 	to 	take 	the 	case 	to 	arbitration and 	then 	failed 	to
do so. 	Saxton testified, 	however, 	that 	she never asked Diamond
why she 	failed 	to 	take 	the 	case 	to arbitration and 	that 	other
union leaders 	gave 	only vague answers 	that 	were unresponsive.
I 	find Diamond's 	testimony more 	credible 	than Saxton's. 	It
seems 	unlikely 	that 	Diamond would 	commit 	to 	taking 	the 	case 	to
arbitration when 	she 	felt 	that 	the 	case 	was 	weak and only 	the
screening 	committee has 	this 	authority. 	I 	therefore 	find that
Diamond had not 	agreed 	to 	take 	the 	case 	to arbitration.
Diamond 	represented Saxton again 	in October, 	1993 	during a
meeting with Dean of 	Instruction, 	Chris McCarthy. 	Saxton had
expressed 	a 	great 	urgency 	to Diamond 	about 	attending 	the meeting.
5
5

Diamond's 	husband had 	just 	undergone 	cancer 	surgery and Diamond
had not wanted to 	leave his bedside. 	However, 	because Saxton
indicated 	to Diamond 	that 	the matter was 	extremely urgent,
Diamond went 	to 	represent 	Saxton. 	It 	turned out 	that 	Saxton's
problem 	concerned her 	core 	schedule 	which 	she 	had 	known 	about 	for
several weeks, 	if not months, 	and had previously done nothing
about. 	When Diamond and McCarthy discovered 	the 	nature 	of
Saxton's 	problem, 	they both became 	angry with Saxton 	for
demanding an urgent 	meeting 	for 	such a 	frivolous 	and untimely
reason.
Saxton's 	next 	dispute 	arose 	when 	she 	accused Carson 	of
assault 	and battery. 	According 	to 	Saxton, 	Carson had grabbed her
arm and 	forced her hand 	into a painful 	position. 	Saxton 	filed a
complaint with the 	campus police department, 	but 	they chose hot
to act 	on the 	complaint. 	She 	then 	filed a 	report 	with 	the
Los Angeles 	Police Department, 	but 	the district attorney's 	office
declined 	to 	file 	a 	complaint 	against 	Carson.
Saxton wanted 	to 	file 	a 	grievance 	about 	the 	alleged assault
and battery, 	but 	did not 	have 	faith 	that 	Diamond would adequately
represent her. 	Saxton contacted Eloise 	Crippens, 	the AFT
grievance 	representative 	at 	the West 	Los Angeles 	College 	campus
of 	the District. 	Saxton asked Crippens 	if 	she would represent
her 	in the grievance. 	The 	contract 	is 	silent 	about 	which union
representative may 	represent 	a grievant. 	While nothing 	in the
contract prohibits a representative 	from a different 	campus, 	it
had been a very rare occurrence, 	if at all.
6

Crippens 	contacted Diamond 	to 	ask 	if 	Diamond minded whether
Crippens 	represented Saxton. 	Diamond 	told 	Crippens 	she 	would be
delighted because 	Saxton was 	a 	"pain 	in the 	ass." 	Crippens 	then
notified 	Saxton 	that 	she 	would 	represent 	her.
On about December 1, 	1993, 	Crippens 	learned that the AFT
executive 	board had decided not 	to provide 	representatives 	from
one campus 	to grievants 	on a different 	campus. 	Crippens was 	told
not 	to 	represent 	Saxton. 	Crippens 	then 	contacted Saxton and told
her 	that 	she 	could not 	represent 	her and 	that 	Diamond would have
to do so.5
Saxton wrote 	up a grievance 	and 	listed Diamond 	as 	her
representative, 	however, 	she never called Diamond to tell her of
the grievance 	or 	to ask her to 	represent 	her 	in the 	grievance.
When Diamond 	eventually 	learned 	that 	Saxton 	had 	listed 	her
as 	Saxton's 	representative, 	Diamond set up a meeting with Saxton.
Saxton did not 	show up 	for 	that meeting. 	Diamond 	tried 	to
schedule a second meeting, 	however, 	Saxton never called her back.
Diamond did not 	pursue 	it 	further.
By 	that 	time 	it 	had become 	clear 	to Diamond 	that 	Saxton no
longer wanted Diamond to 	represent 	her. 	That provided Diamond
with a feeling of 	relief. 	On December 3, 	1993, 	McCarthy and
Diamond had a 	chance meeting 	in 	the 	hallway. 	When McCarthy
raised the 	issue 	of 	Saxton, 	Diamond 	told McCarthy that 	she no
5At 	the 	hearing 	Charging 	Party 	offered 	speculation 	and
hearsay 	testimony that 	the 	reason Crippens was 	not 	allowed to
represent 	Saxton was because 	the AFT president 	was 	a 	friend of
Carson's. 	Charging 	Party offered no 	supporting 	evidence 	of 	this
theory and 	it 	is 	therefore 	given no weight.
77

longer 	represented Saxton and 	expressed her happiness 	about 	that
fact. 	Diamond compared Saxton to a previous 	district 	employee
named Aklampke. 	While 	it 	is 	not 	completely 	clear 	from the
record, 	the 	District 	had apparently 	taken 	some 	administrative
action against Aklampke.
McCarthy's 	notes 	of 	this 	hallway meeting 	suggest 	that
Diamond 	felt 	the 	District 	should 	"administratively 	stop" 	Saxton
or put 	her 	on medical 	leave 	to prevent 	Saxton 	from further
harassing 	Carson.6 Diamond 	denied 	ever 	stating 	that 	Saxton
should be 	stopped 	administratively 	or 	that 	Saxton 	should be
placed on leave. 	For several 	reasons 	I 	credit Diamond's
testimony over 	the version- reflected in McCarthy's 	notes.
McCarthy's 	notes were written 	several 	days 	after the brief
encounter 	in 	the 	hallway. 	McCarthy also 	testified 	that 	his 	notes
reflected his 	opinions 	and did not 	reflect 	the words 	spoken by
Diamond. 	Also, 	the accuracy of McCarthy's notes 	in general 	is
questionable. 	For example, 	his notes also refer to an August
meeting 	involving 	Saxton and Diamond. 	All 	participants 	to 	that
meeting testified that 	it occurred in October, 	not August, 	and
that 	the 	notes were not 	an accurate 	reflection of 	what 	occurred
at 	the meeting. 	I 	therefore 	find that Diamond did not urge 	the
District 	to 	administratively 	stop 	Saxton 	or put 	her 	on 	leave 	of
absence.
6No 	evidence was 	offered about 	what 	was 	meant 	by 	the 	term
"administratively 	stopped."
8

McCarthy testified 	that 	at 	a meeting on December 	8, 	1993,
other 	district 	managers 	expressed a belief 	that 	both 	Carson 	and
the AFT had voiced 	extreme 	concern 	over Saxton's 	behavior.
According 	to McCarthy, 	however, 	he did not 	know who 	the 	other
managers 	were 	referring 	to within the AFT. 	McCarthy's 	testimony
and supporting notes 	are not 	only vague, 	but are also hearsay and
double hearsay. 	As 	such they are an 	insufficient basis 	for a
finding of 	fact 	that 	the AFT, 	or more 	specifically Diamond, 	tried
to undermine 	Saxton with other District managers.
According 	to McCarthy, 	nothing 	that 	was 	said or done by
Diamond 	contributed 	to any action 	taken against 	Saxton by 	the
District.7
ISSUE
Did 	the AFT 	fail 	in 	its 	duty to 	fairly represent 	Saxton, 	or
take 	adverse 	action against 	Saxton because 	of 	her protected
activity, 	or attempt 	to 	cause the District 	to violate Saxton's
rights 	by urging 	that 	Saxton be 	stopped administratively 	or put
on 	leave?
DISCUSSION
Failure 	of 	the Duty 	to 	Fairly Represent 	Saxton
Section 	3544.9 	of 	the 	EERA requires 	exclusive
representatives 	to 	fairly represent 	employees. 	That 	duty 	is
breached 	if 	the 	employee 	organization's 	conduct 	toward an
employee 	is arbitrary, 	discriminatory or 	in bad faith. 	(Rocklin
7It 	is unclear from the record what action, 	if any, 	the
District 	did 	take 	against 	Saxton.
99

Teachers 	Professional Association 	(Romero) 	(1980) 	PERB Decision
No. 	124; 	Vaca v. 	Sipes 	(1967) 	386 U.S. 	171 	[64 LRRM 2369].)
Matters 	which are 	strictly 	internal 	union 	issues 	are 	not 	subject
to 	the duty of 	fair representation. 	(Service 	Employees
International Union Local 99, 	(Kimmett) 	(1979) 	PERB Decision No.
106; 	El 	Centro Elementary Teachers Association 	(Willis) 	(1982)
PERB Decision No. 	232; 	Fontana Teachers Association, 	CTA/NEA
(Alexander, 	et al.) 	(1984) 	PERB Decision No. 	416.)
Employee 	organizations 	are 	afforded a broad 	range 	of
discretion and 	latitude 	in 	fulfilling 	their 	obligations.
Negligence 	or judgment 	errors 	have been 	insufficient 	to 	establish
a violation. 	(Sacramento 	City Teachers 	Association 	(Fanning,
et al.) 	(1984) 	PERB Decision No. 	428; 	California School Employees
Association 	(Ciaffoni, 	et al.) 	(1984) 	PERB Decision No. 	427;
United Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No.
258.) 	A union's 	conduct must be without 	a 	rational 	basis 	or
devoid of honest 	judgment 	to be 	found arbitrary. 	(Vaca v. 	Sipes,
supra, 	386 U.S. 	171.)
- -
This 	complaint 	alleges 	that 	by urging 	the District 	to 	stop
Saxton administratively or put 	her 	on 	leave, 	Diamond breached her
duty to 	fairly represent 	Saxton. 	However, 	the only evidence
supporting that 	claim is McCarthy's 	notes, 	which have been 	found
not 	to be 	credible. 	The most 	that 	can be determined 	from
credible 	evidence 	is 	that 	Diamond expressed her pleasure 	at 	no
longer having 	to 	represent 	Saxton and 	that 	Saxton was 	compared 	to
a 	former employee 	named Aklampke. 	Such statements made 	in that
10

context, 	by a person believing she no 	longer represented Saxton,
are 	insufficient 	to prove 	a violation.
Even assuming 	for the 	sake of 	argument 	only, 	that Diamond
had suggested 	that 	the District 	take 	administrative 	action 	to
stop Saxton's harassment 	of 	a 	fellow unit member, 	that 	would not
by itself prove a violation. 	Unions must 	frequently take
positions 	unfavorable 	to 	one unit member 	in order to protect 	the
rights 	of 	other unit members. 	Unless 	it 	can be 	shown that 	the
conduct 	was 	without 	rational 	basis 	or devoid of 	honest 	judgment,
that 	conduct would not violate 	the AFT's 	duty of 	fair
representation. 	The burden here 	is upon Saxton to show how the
AFT abused 	its 	discretion and not 	on 	the AFT to 	show that 	it
properly exercised 	it. 	(United Teachers-Los Angeles 	(Vigil)
(1992) 	PERB Decision No. 	934.) 	Charging Party has 	offered
speculation and hearsay 	rather 	than 	credible 	evidence 	and 	has
therefore 	failed 	in her burden.
While not 	specifically alleged 	in the 	complaint, 	the
Charging 	Party also argues 	that 	the AFT's 	lack of 	support 	for
taking Saxton's 	grievances 	to arbitration and 	its 	refusal 	to
allow Crippens 	to 	represent 	Saxton also breaches 	its 	duty.
The 	evidence 	clearly 	supports 	a 	finding 	that 	Diamond 	opposed
taking Saxton's 	grievances 	to arbitration because 	they 	lacked
merit. 	This 	is 	supported by unanimous votes of 	the 	screening
committee. 	Saxton was 	even provided an 	opportunity 	to meet 	with
the 	screening 	committee and make her own arguments, 	not 	relying
upon Diamond. 	The 	screening 	committee 	remained unpersuaded and
11

again voted unanimously to drop the grievance. 	Thus, 	Diamond's
lack of 	support 	for the 	cases, 	or the screening committee's
decision not 	to pursue arbitration 	on what 	they believed were
meritless 	grievances 	cannot 	be 	considered arbitrary,
discriminatory or 	in bad 	faith. 	(San Juan Teachers Association
CTA/NEA 	(Spade) 	(1994) 	PERB Decision No. 	1075; 	Sacramento City
Teachers Association, 	supra, 	PERB Decision No. 	428.)
Furthermore, 	EERA section 3541.5(a)(1) 	establishes a six
month statute 	of 	limitations 	for unfair practice 	complaints. 	The
AFT's 	unwillingness 	to take 	Saxton's 	grievances 	to arbitration
occurred more 	than 	six months 	prior to 	the 	filing of 	this 	charge.
Therefore, 	even if the issue had merit, 	which it doesn't, 	it
would be 	untimely.
Charging 	Party has 	also 	failed 	to prove 	that 	the AFT's
decision to 	remove 	Crippens 	as 	Saxton's 	union 	representative
was without 	a rational basis. 	The 	evidence 	shows 	that 	the AFT
decided against 	having 	job 	stewards 	from one 	campus 	represent
grievants 	at 	other 	campuses. 	There was 	no 	obligation 	for 	the AFT
to provide 	Saxton with a 	representative 	of 	her 	choice.
(California Faculty Association 	(Wang) 	(1988) 	PERB Decision No.
692-H; 	Castelli v. 	Douglas Aircraft Co. 	(9th Cir. 	1985) 	752 F.2d
1480 	[118 	LRRM 2717].) 	The method by which a union assigns
representatives 	to grievances 	is 	an 	internal 	union matter and
therefore not 	subject 	to 	the 	duty of 	fair representation.
(United Teachers-Los Angeles 	(Bracey) 	(1987) 	PERB Decision No.
616; 	Service Employees International Union, 	Local 99 	(Kimmett),
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supra. 	PERB Decision No. 	106.) 	The AFT did not refuse to provide
- -
a 	representative 	to Saxton. 	It was 	Saxton's 	choice not 	to
contact 	or meet 	Diamond about 	her 	final 	grievance.
For the above 	reasons, 	Charging Party's allegations
regarding 	the 	duty 	of 	fair 	representation 	should be 	dismissed.
Retaliation Against 	Saxton
A second allegation 	specified 	in 	the 	complaint 	is 	that 	the
AFT took adverse 	action against 	Saxton because 	she 	engaged 	in
protected activity. 	In order to prevail 	in this allegation, 	the
Charging 	Party must 	establish 	that 	she 	engaged 	in protected
activity, 	that 	the activity was known to the AFT, 	and that 	the
AFT took adverse 	action against 	her because 	of 	such activity.
Unlawful 	motivation 	is 	essential 	to 	the Charging Party's 	case.
Proof 	of 	a 	connection 	or nexus 	between 	the protected activity and
the 	adverse 	action may be 	established by direct 	or 	circumstantial
evidence 	and 	inferences 	drawn 	from the 	record as 	a whole.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210;
State 	of 	California 	(Department 	of 	Developmental 	Services 	(1983)
PERB Decision No. 	344-S; 	Carlsbad Unified School District 	(1979)
PERB Decision No. 	89; 	Livingston Union School District 	(1992)
PERB Decision No. 	965.)
In 	this 	case 	the 	charging party has 	shown that 	she 	engaged
in protected activities. 	She 	filed grievances 	and she 	requested
AFT representation in meetings with administrators. 	The AFT
obviously knew of 	this 	protected activity because 	they
represented her 	in the process. 	Charging 	Party has 	failed 	to
13

prove, 	however, 	that 	the AFT took adverse action against her
because 	she 	engaged 	in this 	protected activity.
The 	only adverse action alleged 	in 	the 	complaint 	is 	that
Diamond 	told McCarthy 	that 	Saxton 	should be 	stopped
administratively or put 	on leave 	of 	absence. 	As mentioned
earlier, 	however, 	evidence of 	that 	claim has been discredited.
Diamond's 	expressions 	of pleasure at 	no 	longer having 	to
represent 	Saxton and 	comparing Saxton 	to Aklampke 	cannot 	be 	seen
as adverse action.
Charging 	Party again argues 	that 	the AFT's 	lack of 	support
for taking her grievances 	to arbitration and 	its 	refusal 	to 	allow
Crippens 	to 	represent 	her also 	constitute adverse action.
However, 	the union is under no obligation to take 	cases which it
believes 	to be meritless 	to arbitration. 	(San Juan Teachers
Association CTA/NEA 	(Spade). 	supra. 	PERB Decision No. 	1075;
Sacramento City Teachers Association 	(Fanning, 	et a l . ) , 	supra.
PERB Decision No. 	428.) 	Thus, 	Diamond's lack of support, 	or the
screening 	committee's 	decision not 	to pursue 	arbitration 	cannot
be 	considered adverse action. 	Furthermore, 	as mentioned earlier,
even if 	this were 	considered adverse action, 	it would be
untimely.
Charging 	Party has 	also 	failed 	to prove 	that 	the AFT's
decision 	to 	remove 	Crippens 	as 	her union 	representative
was adverse action. 	The 	evidence 	shows 	that 	the AFT decided
against 	having 	job 	stewards 	from one 	campus 	represent 	grievants
14

at 	other 	campuses. 	However, 	Charging Party argues 	that because
the 	collective bargaining 	agreement 	did not 	specifically prohibit
Crippens 	from representing her, 	the AFT's 	failure 	to provide
Crippens 	as 	a representative 	amounted 	to adverse action. 	As
found earlier in this decision, 	however, 	the method of 	selecting
grievance 	representatives 	is 	clearly an 	internal 	union matter.
Unions 	are under no 	obligation 	to provide 	employees 	with 	the
representative 	of 	their 	choice. 	(California 	Faculty Association
(Wang), 	supra. 	PERB Decision No. 	692-H.) 	Diamond was available
- -.
to Saxton as 	a 	representative. 	Saxton's 	failure 	to get 	her
preferred 	representative 	does 	not 	amount 	to 	adverse 	action.
Finally, 	once again assuming only 	for 	the 	sake 	of 	argument
that 	the AFT did take adverse 	action against 	Saxton, 	she has
failed 	to prove 	that 	any of 	the AFT's 	actions were 	taken because
she 	had engaged 	in protected activity. 	There 	was 	no 	evidence
showing 	that 	the AFT 	took adverse 	action against 	Saxton because
she had 	filed 	grievances 	or 	requested 	representation 	in meetings
with 	the 	administration. 	Those 	grievances 	were 	filed with 	the
support 	of 	the AFT. 	Diamond 	represented 	Saxton at many meetings
regarding the grievances. 	It 	is 	far more probable 	that any
comments 	made by Diamond 	or action 	taken by 	the union was based
upon a 	sincere 	belief 	that 	Saxton's 	claims 	were without merit
and/or that 	Saxton actually was 	harassing Carson, 	a 	fellow unit
member. 	Charging 	Party's 	allegations 	of 	retaliation must
therefore be 	dismissed.
15

Urging 	the District 	to Violate 	Saxton's 	Rights
The 	final 	allegation, 	that 	Diamond attempted to 	cause 	the
District 	to 	interfere with Saxton's 	rights 	or 	retaliate 	against
her because 	of 	her protected activity must 	also be 	dismissed.
The 	Charging 	Party has 	offered no 	reliable 	evidence 	on 	this
allegation. 	Even 	crediting 	Charging 	Party's 	evidence 	entirely
(which I 	am not willing to do) 	Diamond at most 	suggested that 	the
District 	take 	action not 	for 	the purpose 	of 	interfering with
Saxton's 	rights 	or because 	of 	her protected activity, 	but 	rather
to 	stop 	Saxton 	from harassing another unit member.
CONCLUSION AND 	ORDER
Charging 	Party has 	failed 	to prove 	that 	the AFT acted 	in a
manner which was 	arbitrary, 	discriminatory or 	in bad faith. 	It
has 	therefore not been shown 	that 	the AFT breached 	its 	duty 	to
fairly represent 	employees. 	Charging Party has 	also 	failed to
prove 	that 	the AFT 	took any adverse 	action against 	Saxton because
she 	engaged 	in protected activities. 	Finally, 	Charging 	Party has
failed to prove 	that 	Diamond attempted 	to 	cause 	the 	District 	to
violate Saxton's 	rights. 	This 	complaint 	is 	therefor DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order shall become 	final 	unless
a party 	files 	a 	request 	for an 	extension of 	time 	to 	file
exceptions 	or a 	statement 	of 	exceptions with the Board 	itself.
This 	Proposed Decision was 	issued without 	the 	production of
a written transcript 	of 	the 	formal 	hearing. 	If a transcript 	of
the hearing 	is 	needed for 	filing exceptions, 	a request 	for an
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extension of 	time 	to 	file 	exceptions must 	be 	filed with 	the 	Board
itself 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132). 	The request for
an 	extension of 	time must 	be 	accompanied by a 	completed
transcript 	order 	form 	(attached hereto). 	(The 	same 	shall 	apply
to 	any 	response 	to 	exceptions.)
In accordance with PERB regulations, 	the 	statement 	of
exceptions must 	be 	filed with 	the 	Board 	itself 	within 	20 	days 	of
service 	of 	this Decision or upon service 	of 	the 	transcript 	at 	the
headquarters 	office 	in Sacramento. 	The 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the record, 	if any, 	relied upon for such exceptions. 	(Cal.
Code of Regs., 	tit. 	8, 	sec. 	32300.) 	A document is considered
"filed" 	when actually 	received before 	the 	close 	of 	business
(5:00 p.m.) 	on the last day set for filing 	". 	. 	. 	or when sent by
telegraph or 	certified or Express United States mail, 	postmarked
not 	later than 	the 	last 	day set 	for 	filing 	. . . " 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	sec. 	32135; Cal. Code of Civ. P r o c , 	sec. 	1013
shall 	apply.) 	Any statement 	of 	exceptions 	and supporting brief
must 	be 	served 	concurrently with 	its 	filing upon 	each party 	to
this proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy
served on a party or filed with the Board itself. 	(Cal. 	Code of
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
James W. 	Tamm
Administrative 	Law 	Judge
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