Los Rios College Federation of Teachers (Lowman) (PERB 1142E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MICHAEL 	LOWMAN,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
Case No. 	S-CO-347
PERB Decision No. 	1142
February 	29, 	1996
Appearances; 	Michael Lowman, 	on his own behalf; 	Law Offices of
Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of Teachers.
Before Garcia, 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of a Board agent's
dismissal 	(attached) 	of an unfair practice 	charge 	filed by
Michael Lowman 	(Lowman). 	In his charge, 	Lowman alleged 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),1 thereby violating
JEERA 	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:
It 	shall be unlawful 	for an employee
organization to:
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EERA section 3543.6(b), 	when it 	failed to adequately represent
him in 	two grievances 	filed against 	his 	employer and when 	it
published a union newspaper article 	which discussed 	one 	of 	his
grievances.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including Lowman's 	unfair practice 	charge and amended charge, 	the
warning and dismissal 	letters, 	Lowman's 	appeal 	and the
Federation's 	response 	thereto.2 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. 	S-CO-347 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
(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.
2The 	declaration filed by Annette M. 	Deglow in support 	of
Lowman's 	charge was 	not 	considered by 	the 	Board 	for 	failure 	to
comply with PERB Regulation 32210. 	(PERB 	regulations 	are
codified at Cal. 	Code Regs., 	tit. 	8, 	sec. 	31001 et seq.)
22

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
December 19, 	1995
Michael Lowman, 	Ph.D.
Re: 	Michael 	Lowman v. 	Los 	Rios 	College 	Federation of 	Teachers
Unfair 	Practice 	Charge 	No.S-CO-347
DISMISSAL 	LETTER
Dear Mr. 	Lowman:
I 	indicated 	to you, 	in my attached 	letter dated
August 	1, 	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
August 	8, 	1995, 	the charge would be dismissed.
On August 	14, 	1995, 	this 	office received your amended
charge. 	In that 	amended charge, 	you continue 	to 	allege 	that 	the
union 	improperly published 	a 	summary of 	a 	grievance 	that 	you had
filed 	and 	adversely 	impacted 	your 	opportunity 	to 	resolve 	the
grievance. 	Because you have 	not 	demonstrated how the 	Los Rios
College 	Federation of 	Teachers 	(LRCFT or union) 	violated 	its 	duty
of 	fair 	representation or 	interfered with your 	rights 	by
publication, 	this 	allegation will 	be 	dismissed 	for 	the 	reasons
given 	in my prior 	letter.
In your amended charge you 	also make 	a new allegation, 	that
the 	union 	improperly represented you 	in two grievances. 	One was
the 	grievance 	which was 	referred 	to 	in 	the 	February 	1995
publication.
In January of 	1994, 	you asked the LRCFT to 	investigate and
file 	a grievance 	on your behalf 	with the 	District. 	You had been
informed by your 	immediate 	supervisor, 	that 	she 	wished 	to place
you on 	a 	special 	evaluation 	schedule 	for 	the 	Spring 	1994 	semester
because 	of 	a 	letter which you 	had written which 	she 	found 	to be
"profane 	and disparaging". 	The 	grievance 	alleged 	that 	you had
been 	improperly 	scheduled 	to be 	the 	subject 	of 	a 	special 	review.
The 	LRCFT processed your grievance 	and a 	subsequent 	grievance
which 	reflected 	a 	special 	performance 	evaluation 	that 	contained
unsatisfactory and 	"needs 	improvement" 	ratings. 	This 	evaluation
resulted 	in your not 	being 	reemployed 	for 	Fall 	1994.
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You 	contend 	that 	the 	LRCFT 	did not 	represent 	you properly
with 	regard 	to 	the 	grievances 	by 	not 	keeping you 	adequately
informed, 	not 	adequately seeking your 	input, 	and not 	providing
your 	attorney with a 	copy of 	a 	time 	sequence. 	You 	further allege
that 	the 	improper 	representation was 	motivated by your
participation 	in 	an unfair practice 	hearing 	for 	a 	charge 	which
Annette 	Deglow had 	filed 	against 	the 	LRCFT.
Investigation 	reveals 	that 	the 	LRCFT did 	represent 	you 	in
the grievance 	matters, 	including discussions with 	the 	employer of
a possible 	settlement. 	You 	hired 	another 	attorney 	to 	assist 	you
in 	these 	matters 	and 	in dealing with the 	LRCFT. 	Letters 	to your
attorney 	from 	the 	attorney 	for 	the 	LRCFT written 	in 	February 	and
March of 	1995, 	reflect 	the 	chronology of 	events 	concerning the
grievances, 	lengthy discussions 	of 	the merits 	of 	the 	cases 	and
the 	reasoning behind 	the 	LRCFT 	decision not 	to 	take 	the 	grievance
to 	a board of 	review. 	One 	letter was 	written prior 	to your
February 22, 	1995 	appearance before 	the LRCFT Executive Board
appealing 	the 	determination not 	to 	seek 	a board of 	review.
As 	stated in my letter of August 	1, 	1995, 	PERB 	has 	held that
the 	duty of 	fair 	representation 	attaches 	during grievance
handling. 	(Rocklin Teachers 	Professional Association) 	(1980)
PERB Dec. 	No. 	124. 	Also, 	as you correctly state 	in your amended
charge, 	a breach of 	that 	duty will 	be 	found when 	the 	union's
conduct 	is 	"arbitrary, 	discriminatory or 	in bad 	faith".(Rocklin,
supra) 	Further, 	a union's 	decision not 	to pursue 	a matter to
arbitration, 	or a board of review, 	is not 	a violation where a
rational 	basis 	existed. 	(Castro Valley Unified School 	District)
(1980) 	PERB Dec. 	No. 	149. 	In fact, 	a union is not required to
process 	a grievance 	to any level 	if 	it 	has 	a reasonable belief
that 	the 	claim is meritless. 	(Los Angeles Unified School
District) 	(1985) 	PERB Dec. 	No. 	526. 	From the letters sent to
your attorney, 	it 	appears 	that 	the LRCFT 	investigated the
grievances, 	attempted to settle 	the matters, 	and concluded that
the 	grievances 	lacked 	sufficient 	merit 	to pursue 	to 	a 	board of
review. 	More 	importantly, 	you 	have 	not 	alleged 	facts 	which would
lead to 	the 	conclusion 	that 	LRCFT's 	conduct 	was 	arbitrary,
discriminatory or 	in bad 	faith. 	Accordingly, 	the 	conduct 	does
not 	appear 	to violate 	the 	duty of 	fair representation. 	For 	these
reasons, 	and the 	reasons given in my letter of August 	1, 	1995,
this 	charge 	must 	be 	dismissed.
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:
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.)
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
By
BERNARD 	MCMONIGLE
Regional 	Attorney
Attachment
cc: 	Adam H. 	Birnhak
Betty 	Lawrence

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
August 	1, 	1995
Michael Lowman, 	Ph.D.
Re: 	Michael 	Lowman v. 	Los Rios 	College 	Federation of Teachers,
CFT/AFT 	Local 	2279
Unfair 	Practice 	Charge 	No. 	S-CO-347
WARNING 	LETTER
Dear Dr. 	Lowman:
On May 24, 	you 	filed the 	above-referenced charge 	alleging that
the 	Los 	Rios 	College 	Federation of 	Teachers 	(LRCFT) 	violated 	its
duty to 	fair 	representation. 	I 	called you on July 	27 	and on
August 	1 	to discuss the charge, 	however, 	there was no answer. 	I
left 	a message 	on your machine.
The 	February 	1995 	edition 	of 	the 	LRCFT Union News 	published 	a
summary of 	a 	grievance 	that 	you 	had 	filed. 	You 	contend 	that
while 	the 	article 	does not 	reference 	you by name, 	the 	article
sufficiently described you. 	You 	contend 	that 	the 	Federation was
aware 	that 	making your grievance 	public 	"had 	an 	instant
diminishing effect 	on any possibility 	for resolve 	(sic)" 	the
grievance 	in your 	favor. 	However, 	you 	supply no 	facts 	to 	support
this 	conclusion. 	You 	state 	that 	the publication of 	your
grievance 	was 	in direct 	conflict 	with the 	Federation's 	advertised
policy of 	discussing grievances 	in 	the 	publication 	only with
permission of 	the 	grievant. 	The publication was 	without 	your
permission 	and 	resulted 	from your past 	support 	of 	Annette 	Deglow,
including 	testimony 	in 	a 	PERB 	proceeding.
Government 	Code 	section 	3544.9 	requires 	that 	an 	exclusive
representative 	"for 	the 	purpose 	of 	meeting 	and negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in 	the 	appropriate
unit." 	Accordingly, 	PERB has 	held that 	the duty of 	fair
representation 	attaches 	during 	contract 	negotiations 	(Los 	Angeles
Unified School District 	(1986) 	PERB Dec. 	No. 	599) 	and during
grievance 	handling and contract 	administration. 	(Rocklin Teachers
Professional Association 	(1980) 	PERB Dec. 	No. 	124.) 	However,
internal 	union 	affairs 	are 	largely 	immune 	from 	scrutiny under 	the
duty of 	fair representation analysis. 	In SEIU, 	Local 	99
(Kimmett) 	(1979) 	PERB Dec. 	No. 	106 	the Board determined that 	the
fair 	representation 	duty 	found 	in 	Government 	Code 	section 	3544.9
"contains 	no 	language 	indicating 	that 	the 	legislature 	intended
that 	section 	to 	apply 	to 	internal 	union 	activities 	that 	did 	not
have 	a 	substantial 	impact 	on 	the 	relationships 	of 	unit 	members 	to
~
PERS

Augus
their employers." 	Because you 	have 	not 	demonstrated how these
statements 	have 	a 	substantial 	impact 	on your relationship 	to your
employer 	(grievance resolution), 	these allegations 	do not 	state 	a
prima 	facie 	violation of 	EERA 	section 	3544.9.
Speech activity by the Union 	"is 	accorded generous 	protection" 	so
long as 	it 	is 	related to matters 	of 	legitimate 	concern.
(California Faculty Association 	(Hale, 	et al.) 	(1988) 	PERB Dec.
No. 	693-H.) 	Such free 	speech rights 	are 	similar to 	those
accorded an employer. 	(California Faculty Association 	(Hale).
supra.) 	The 	expression of views 	or opinion does 	not 	evidence 	an
unfair practice 	unless 	there 	is 	a 	threat 	of 	reprisal 	or promise
of benefit. 	(Rio Hondo Community College District 	(1980) 	PERB
Dec. 	No. 	128). 	Your allegations demonstrate no such threat or
promise 	by the 	LRCFT.
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 August 	8, 	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
t 	1, 	1995
S-CO-347
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