Los Rios College Federation of Teachers (Deglow) (PERB 1133EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
)
)
) 	Case No. 	SA-CO-314
Request 	for 	Reconsideration
PERB Decision No. 	1133
PERB Decision No. 	1133a
May 	14, 	1997
)
)
)
)
)
)
)
Appearances; 	Annette M. 	Deglow, 	on her own behalf; 	Law Offices
of Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of Teachers.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case 	is before the Public
Employment Relations 	Board 	(PERB or Board) 	on a 	request by
Annette M. 	Deglow 	(Deglow) 	that 	the Board accept her late 	filed
request 	to 	reconsider 	its 	decision 	in Los 	Rios 	College 	Federation
of Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1133 	(Los Rios
(Deglow)). 	In Los Rios 	(Deglow). 	the Board dismissed Deglow's
unfair practice 	charge alleging 	that 	the 	Los Rios 	College
Federation of 	Teachers 	(Federation) 	breached its 	duty of 	fair
representation 	guaranteed by 	section 	3544.9 	of 	the 	Educational
Employment Relations Act 	(EERA), 	thereby violating section 3543.6(b).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
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.
_____ )

BACKGROUND
Deglow is 	one 	of 	several 	instructors within the 	Los 	Rios
Community College District 	(District), 	employed prior to 1967,
who 	filed grievances 	asserting 	that 	the District 	failed 	to
properly account 	for 	their 	seniority and 	retirement 	credits.
Deglow alleged 	that 	the 	Federation did not 	fairly 	represent 	her
in her 	seniority and 	retirement 	credit 	grievances, 	and that 	the
Federation refused 	to pursue 	the 	grievances 	to 	a board 	of 	review
hearing. 	The board of 	review hearing was 	the 	last 	step 	in the
District's 	grievance procedure, 	which did not provide 	for binding
arbitration. 	The District's 	Board of Trustees 	has 	the authority
to accept 	or reject 	recommendations 	of 	a board of 	review.
In Los Rios 	(Deglow). 	the Board adopted the administrative
law judge's 	(ALJ) 	proposed decision 	finding 	that Deglow failed to
show that 	the 	Federation breached 	its 	duty of 	fair 	representation
in 	its 	handling of her grievances.
DEGLOW'S 	REQUEST
On February 6, 	1997, 	Deglow filed her request 	to reconsider
Los Rios 	(Deglow). 	She 	contends 	that 	testimony offered by a key
witness 	for the 	Federation in the 	case was 	"false 	- 	misleading
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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and untrue." 	Deglow offers portions 	of 	the 	transcript 	of 	the
August 	1994 	PERB hearing 	in the 	case. 	The 	Federation witness
testified 	that 	the 	Federation's 	February 	1994 	decision not 	to
pursue Deglow's 	grievances 	to a board of 	review resulted, 	at
least 	in part, 	from the 	Federation's view that 	the District's
general 	counsel, 	Sue Shelley 	(Shelley), 	would ensure that any
board 	of 	review 	ruling 	favorable 	to Deglow would not 	be 	accepted
by 	the District's 	Board of 	Trustees.
Deglow submits a copy of a January 23, 	1997, 	letter from the
Federation to PERB, 	concerning another unfair practice 	charge,
which 	states 	that 	Shelley 	"ended her professional 	relationship
with the District 	in December 	1993." 	Since 	Shelley was 	no 	longer
employed by 	the District, 	Deglow asserts 	that 	the 	Federation's
February 	1994 	decision not 	to pursue her grievances 	to a board of
review could not, 	or should not, 	have been based on its view of
Shelley's advice to the District. 	Therefore, 	either the
Federation witness 	intentionally provided 	false 	and misleading
testimony in the August 	1994 	PERB hearing, 	or the 	Federation was
unaware 	of 	Shelley's 	status 	and 	its 	representation was 	grossly
negligent. 	Deglow believes 	this 	information supports 	her claim
that 	the 	Federation 	failed 	in 	its 	duty of 	fair 	representation.
Deglow asserts 	that 	she 	only became aware 	of 	these
circumstances when she 	received a copy of 	the January 23, 	1997,
letter. 	Therefore, 	she argues 	that good cause exists 	to excuse
her 	late 	filed 	request 	that 	the 	Board 	reconsider 	its 	decision 	in
Los Rios 	(Deglow).
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FEDERATION'S 	RESPONSE
In response, 	the Federation asserts 	that 	good cause does not
exist 	to 	excuse Deglow's 	late 	filing 	for several 	reasons. 	Citing
California State Employees Association. 	Local 	1000 	(Janowicz)
(1996) 	PERB Order No. 	Ad-276-S, 	the Federation argues that Deglow
did not make 	a 	conscientious 	effort 	to 	file her request 	on time.
The Federation offers a June 13, 	1994, 	memo from the District 	to
all 	faculty and 	staff 	announcing 	the 	appointment 	of 	a new
District 	general 	counsel. 	The 	Federation states 	that Deglow
received this memo in June 	1994, 	prior to the August 	1994 	PERB
hearing. 	Since 	the District 	notified Deglow that 	a new general
counsel 	had been appointed prior to the 	PERB hearing, 	her
assertion 	that 	she 	only became 	aware 	in January 	1997 	of 	Shelley's
1993 	retirement 	shows a 	lack of 	conscientious 	effort.
The 	Federation 	further asserts 	that 	the 	testimony of 	the
Federation witness 	concerning 	Shelley's 	employment 	status 	with
the District 	is not 	referenced in, 	and had no bearing on, 	the
ALJ's 	or Board's decision to dismiss Deglow's 	charge. 	Therefore,
Deglow has 	not 	explained how and why 	the 	allegedly misleading
witness 	statements are relevant 	to 	the Board's decision.
The 	Federation also asserts 	that 	the witness' 	August 	1994
testimony 	correctly reflects 	Shelley's 	potential 	role 	in Deglow's
grievances. 	The Federation offers a February 18, 	1997, 	letter
from the District, 	concerning a recent Deglow grievance, 	that
states:
While Ms. 	Shelley has been retired for
several years, 	she remains 	the sole resource
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for information regarding Ms. 	Deglow's 	series
of actions against 	the District. 	As 	a
result, 	the District 	staff must 	continue 	to
rely on her expertise.
Finally, 	the 	Federation requests 	that 	the 	Board sanction
Deglow by awarding 	the 	Federation full 	costs. 	The 	Federation
notes 	that 	the 	Board has 	previously admonished Deglow 	concerning
repeated 	filings 	of 	unfair practice 	charges 	involving 	allegations
already 	considered by 	the 	Board.
DISCUSSION
PERB Regulation 324102 states, 	in pertinent part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to reconsider
the decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration are
limited to 	claims 	that 	the decision of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or newly discovered evidence or law
which was 	not 	previously available 	and 	could
not 	have 	been discovered with 	the 	exercise 	of
reasonable 	diligence.
The Board issued Los Rios 	(Deglow) 	on January 19, 	1996. 	Deglow
filed her 	request 	to 	reconsider 	that 	decision 	on 	February 	6,
1997, 	approximately one year after the due date 	for 	filing a
request 	for reconsideration. 	Accordingly, 	the Board must address
the 	issue of Deglow's 	late 	filing of her request.
PERB Regulation 3213 6 provides 	that:
A 	late 	filing may be 	excused 	in 	the
discretion 	of 	the 	Board 	for good 	cause 	only.
A 	late 	filing which has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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In applying 	this 	regulation, 	the Board has 	found good cause 	to
excuse 	late 	filings 	when a party has 	demonstrated a 	conscientious
effort 	to 	timely 	file. 	(North Orange 	County Regional
Occupational Program 	(1990) 	PERB Decision No. 	807; 	Trustees of
the California State University 	(1989) 	PERB Order No. 	Ad-192-H.)
Deglow argues 	that 	good cause 	exists because 	she 	only became
aware 	that 	"false 	- 	misleading and untrue" 	testimony was 	offered
by a key 	Federation witness 	during 	the August 	1994 	PERB hearing
when Deglow received a copy of a January 23, 	1997, 	letter from
the 	Federation 	to a Board agent.
Deglow's argument 	is not persuasive. 	The District
apparently sent 	an announcement 	of 	the 	appointment 	of 	Shelley's
replacement 	to all 	faculty and 	staff 	of 	the District 	in June
1994. 	Given the announcement, 	and the ensuing period of more
than two and one-half years, 	it appears 	reasonable 	that Deglow
could have 	discovered Shelley's 	departure prior 	to January 	1997
through a conscientious 	effort. 	Accordingly, 	the Board finds
that 	Deglow has 	not 	demonstrated good 	cause 	to 	excuse 	her 	late
filing.
Regarding 	the 	Federation's 	request 	for costs, 	the Board will
award costs where a case 	is without arguable merit, 	frivolous,
vexatious, 	dilatory, 	pursued in bad faith or is 	otherwise an
abuse 	of process. 	(Chula Vista City School District 	(1990) 	PERB
Decision No. 	834; 	United Professors of California 	(Watts) 	(1984)
PERB Decision No. 	398-H.) 	Costs will 	not be awarded where 	the
issues are debatable and the 	case 	is brought 	in good faith.
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(Chula Vista City School District 	(1982) 	PERB Decision No. 	256.)
The 	Board 	concludes 	that 	costs 	should not 	be awarded 	to 	the
Federation in this 	case.
ORDER
Annette M. 	Deglow's 	request 	to accept 	her late 	filed request
for reconsideration of 	the Board's 	decision 	in Los 	Rios 	College
Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1133 	is
hereby DENIED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
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