Los Rios College Federation of Teachers (Deglow) (PERB 1135E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS, 	CFT/AFT LOCAL 2279,
Respondent.
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) 	Case No. 	S-CO-349
PERB Decision No. 	1135
January. 29, 	1996
)
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)
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Appearances; 	Annette Deglow, 	on her own behalf; 	Law Offices of
Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of Teachers, 	CFT/AFT Local 	2279.
Before Garcia, 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Annette Deglow
(Deglow) 	to a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	Deglow 	filed an unfair practice 	charge 	alleging
that 	the Los Rios 	College 	Federation of Teachers, 	CFT/AFT Local
2279 	(Federation) 	breached 	the duty of 	fair representation
mandated by 	section 	3544.9 	of 	the 	Educational 	Employment
Relations Act 	(EERA), 	thereby violating EERA section 3543.6(b),1
EERA 	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.
EERA section 3543.6 	states, 	in pertinent part:
________________ )

when 	it 	took 	certain actions 	related 	to 	grievances 	filed by her.
After 	investigation, 	the Board agent 	dismissed the 	charge 	for
failure 	to establish a prima 	facie 	case 	of 	a violation of 	EERA.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	Deglow's appeal, 	and the
Federation's 	response. 	The Board 	finds 	the warning and dismissal
letters 	to be 	free 	of 	prejudicial 	error and adopts 	them as 	the
decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	SF-CO-349 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
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.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERU
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
November 9, 	1995
Annette M. 	Deglow
Re: 	Annette M. 	Deglow v. 	Los Rios College Federation of
Teachers. 	CFT/AFT Local 2279
Unfair Practice Charge No. 	S-CO-349
DISMISSAL 	LETTER
Dear Ms. Deglow:
On May 26, 	1995 you filed the above-referenced charge alleging
violations of Government Code sections 3543, 	3543.6(a) 	and 	(b)
and 3544.9. 	Specifically, 	you allege that the Los Rios College
Federation of Teachers 	(LRCFT or Union) 	handled a grievance of
yours 	in a discriminatory fashion.
I indicated to you, 	in my attached letter dated October 5, 	1995,
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. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
October 12, 	1995, 	the charge would be dismissed. 	I granted you
an extension of time until October 31st.
I received your amended charge on October 25, 	1995. 	In the
amended charge you again assert 	that 	the Federation violated its
duty of fair representation toward you. 	You supply more
information in the 	form of 	factual background. 	You explain how
you sustained injuries in the 	1980s to your vocal 	chords and
gastrointestinal 	system which required accommodations within the
workplace. 	Some of these disability accommodations were
subsequently challenged by co-workers 	in the mathematics
department.
You also supplied information as 	to why you believed the
evaluation dated 4/19/94 which you received was 	improper. 	You
contend that you were 	in fact 	teaching your course 	consistent
with the college catalogue description, 	that your written
response to one of the evaluators 	(rather than a conversation)
was proper and that 	the allegation that you had ordered
transparencies and failed to pay the vendor was untrue.

S-CO-349
November 9, 	1995
Page 2
In your amended charge, 	you again allege that it was improper for
the LRCFT to decide that, 	because the district had re-evaluated
you and, 	agreed that the original evaluation would not be used in
any disciplinary process, 	there was no longer a grievable
situation. 	You again allege that it was improper for the
Federation to inform the district 	of this determination on
January 9th, 	prior to the scheduled January 30, 	1995 deadline for
you to appeal 	the Union's decision not 	to pursue the grievance
further. 	You allege that 	"disclosure of the Federation position
was premature and compromised the efforts to bring full resolve
to the issues being grieved," 	and that you continued to be
adversely effected by the derogatory comments made 	in the
original 	evaluation. 	You contend that 	such disclosure was
"arbitrary, 	discriminatory and in bad faith," 	and as such,
evidences the LRCFT's violation of its duty of fair
representation.
You also allege a violation of the duty of 	fair representation
because of the Union's discriminatory actions toward you. 	As
evidence of discrimination you state 	that 	the Union refused to
seek a board of 	review for your grievance but did seek a board of
review for a probationary instructor who did not 	receive a pay
increase. 	You also point to the 	fact that the Federation
described your grievance 	in an article 	in the Union news despite
the fact that 	it has a stated practice to hold the active
grievance 	issues confidential unless the grievant gave
permission. 	You attached the articles which the Union has
published regarding unfair practice 	charges which you have
brought against them.
As stated in my letter of August 5, 	1995, 	a union's decision not
to take a grievance to arbitration is not a violation of the duty
of fair representation where a rational basis for the decision
exists. 	(Castro Valley Unified School District 	(1980) 	PERB Dec.
No. 	149.) 	In this case it appears to be a rational determination
for the Union to conclude that you would no longer be 	adversely
effected by the initial evaluation. 	Nor does it appear
irrational 	to so 	inform the employer. 	Such a decision by the
Union is not made less credible by the 	fact that the Union has
taken another case, 	based on different facts, 	to arbitration.
Nor does 	the LRCFT publication of 	its position regarding unfair
practice charges 	filed against 	it 	support a finding that you were
deprived of 	fair representation in this grievance. 	Accordingly,
this charge must be dismissed.

S-CO-349
November 9, 	1995
Page 3
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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified or 	Express 	United States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 1013 	shall 	apply.
The Board's address 	is:
Attention: 	Appeals Assistant
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 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(3) 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

S-CO-349
November 9, 	1995
Page 4
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Adam Birnhak

STATE OF CALIFORNIA 	,' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 5, 	1995
Annette M. 	Deglow
Re: 	Annette Deglow v. 	Los Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice 	Charge No. 	S-CO-349
WARNING 	LETTER
Dear Ms. 	Deglow:
On May 26, 	1995 	you 	filed the 	above-referenced charge 	alleging
violations of Government 	Code 	sections 	3543, 	3543.6(a) 	and 	(b)
and 3544.9. 	Specifically, 	you allege 	that 	the Los Rios 	College
Federation of 	Teachers 	(LRCFT or Union) 	handled a grievance 	of
yours 	in 	a discriminatory 	fashion.
Your 	charge 	indicates 	that 	on January 3, 	1995 	the 	LRCFT Executive
Director Robert 	Perrone 	sent 	a 	letter 	to you with respect 	to 	a
pending grievance 	that 	you 	had 	filed 	against 	the 	Los 	Rios
Community College District. 	In that 	letter, 	Perrone 	stated that
your 	deadline 	for 	requesting that 	the 	Union pursue 	a 	hearing
before 	a board of 	review would be 	January 30, 	1995 	and that 	you
should contact 	his 	office 	before 	that 	date 	if you had any new
evidence 	to 	support 	taking the 	grievance 	to 	that 	level. 	You 	then
state 	that 	in a letter dated January 9, 	1995, 	Perrone 	sent 	a
letter to 	the 	college 	director of 	personnel 	services 	stating 	in
part, 	". 	. 	. 	it is the position of the LRCFT that, 	as a result of
the 	remedy offered by the 	District, 	there 	is no 	longer a
grievable 	situation." 	You contend that 	in this manner, 	the 	LRCFT
advised the 	district 	of 	its position prior to your 	January 	30,
1995 	deadline. 	You believe 	that 	this 	action was 	grossly
negligent 	and an 	intentional 	act 	of 	retaliation because 	you 	to
filed unfair 	labor practice 	charges 	with 	PERB.
Further 	investigation 	reveals 	the 	following. 	On or about 	May 26,
1994, 	you 	filed a grievance 	over an evaluation of your 	teaching.
In part, 	that 	evaluation stated that 	"per your estimate, 	33% of
the 	required 	course 	material 	was 	not 	covered in Math 	52 	during
the 	fall 	1993 	term," 	and that 	"the 	committee 	suggests 	that 	you
strive 	to 	establish more 	open 	communication with your 	colleagues
and work 	through 	channels 	to 	resolve 	issues." 	The 	evaluation was
also 	somewhat 	critical 	of 	a 	recent 	order of 	transparencies

charged 	to 	the 	college but 	issued 	to your 	home 	address 	without
proper 	authorization.
Your 	grievance 	was 	processed by 	the 	LRCFT 	up 	to 	and 	including 	the
chancellor 	level 	response 	(the 	step 	just 	prior 	to 	board 	of
review). 	In the chancellor's 	level 	response, 	the college took
the 	position 	that 	there 	had been a 	follow-up 	classroom visit 	to
your 	classroom and 	that 	your performance 	was 	rated 	as 	"overall
meets 	standards." 	The 	college 	also 	indicated that 	this 	standard
rating precluded 	the 	initial 	needs 	improvement 	rating 	for 	the
spring 	1994 	evaluation 	from being used 	in 	a 	disciplinary process.
The 	district 	took 	the 	position 	that 	it 	did not 	believe 	that 	there
was 	any need to 	destroy 	the 	original 	evaluation.
After 	evaluating the 	district's 	response 	the 	LRCFT, 	by 	letter of
January 3, 	1995, 	told you that because of 	the district's
statement 	that 	the 	original 	evaluation would not 	be 	used 	in 	any
disciplinary process, 	and the 	fact 	that 	the Union did not 	"think
of 	any manner 	in which the 	district 	might 	use 	the 	evaluation
against you," 	the Union had taken the 	position that 	the
district's 	remedy no 	longer meant 	that 	you 	had been 	adversely
effected by violation 	of 	any provision 	of 	the 	collective
bargaining agreement. 	The 	Union did 	leave 	open 	the 	possibility
for you 	to 	contact 	them with 	further 	information by January 	3 0th.
At 	your request, 	the Union sent 	a 	letter to the director of
personnel 	services 	on January 	9, 	1995 	requesting 	information
which you believed was 	necessary 	in 	order 	to 	attach your 	own
explanation to 	the 	evaluation 	that you had received. 	In 	that
letter the Union stated that 	"it 	is 	the position of 	the 	LRCFT
that, 	as 	a result of 	the 	remedy offered by the district, 	there 	is
no 	longer a grievable 	situation."
A breach of 	the 	duty of 	fair 	representation occurs 	when 	the
union's 	conduct 	toward a 	member of 	the 	bargaining unit 	is
"arbitrary, 	discriminatory or 	in bad 	faith." 	(Rocklin Teachers
Professional Association 	(1980) 	PERB Dec. 	No. 	124.) 	An employee
must 	show sufficient 	facts 	indicating 	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 	(1983) 	PERB Decision No. 	332.) 	In
grievance processing, 	a union's 	decision not 	to take 	a grievance
to 	arbitration 	is 	not 	a violation where 	a 	rational 	basis 	for 	the
decision 	exists. 	(Castro Valley Unified 	School 	District 	(1980)
PERB Decision No. 	149.)
In 	this 	case, 	the 	LRCFT represented you 	in the 	grievance process
and 	received 	a 	reply 	from the 	college 	that 	you were 	now 	rated 	as
"meets 	standards" 	and that 	the 	initial 	needs 	improvement 	rating
would not 	be used in any disciplinary process. 	Accordingly, 	it
appears 	rational 	for 	the 	Union 	to 	take 	the position 	that 	there
was 	no 	longer 	a 	grievable 	situation 	and 	that you were 	no 	longer
adversely affected by 	the 	initial 	rating. 	Because 	you 	have 	not
demonstrated how 	the 	LRCFT 	action 	is 	without 	a 	rational 	basis 	or
devoid of 	honest 	judgment, 	this 	charge must 	be dismissed.

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 additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	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
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 October 12, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 355.
Sincerely,
\
Bernard McMonigle
Regional Attorney
BMC:mmh