Los Rios College Federation of Teachers (Deglow) (PERB 1241E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE FEDERATION OF
TEACHERS/CFT/AFT/LOCAL 2279,
Respondent.
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) 	Case No. 	SA-CO-3 87
PERB Decision No. 	1241
December 	9, 	1997
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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 Caffrey, 	Chairman; 	Amador and Jackson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Annette Deglow
(Deglow) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	In her charge, 	Deglow alleged that 	the Los 	Rios
College 	Federation 	of 	Teachers/CFT/AFT/Local 	2279 	(Federation)
breached 	the 	duty 	of 	fair 	representation guaranteed by 	section
3544.9 	of 	the Educational 	Employment Relations Act 	(EERA) 	thereby
violating EERA 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.
Section 3543.6 	states, 	in pertinent part:
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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.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including Deglow's 	original 	and amended unfair practice 	charge,
the Board agent's 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. 	SA-CO-387 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members Amador and Jackson 	joined 	in 	this 	Decision.
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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
September 24, 	1997
Annette Barudoni Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice Charge No. 	SA-CO-387
DISMISSAL LETTER
Dear Ms. Deglow:
You filed the above-referenced charge on March 20, 	1997. 	You
amended that charge on April 14, 	July 7, 	and on September 19,
1997. 	Essentially, 	you allege a violation of the duty of fair
representation. 	We discussed this matter in my office on July 2,
1997.
I indicated to you, 	in my attached letter dated August 8, 	1997,
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
15, 	1997, 	the charge would be dismissed.
You were granted an extension of time 	in order to secure a copy
of your testimony at the July 10, 	1997 PERB Board meeting, 	and a
copy of the document 	that you referenced in your testimony at
that time. 	I 	received a copy of your third amended charge on
September 19, 1997.
In that charge, 	you continue to disagree with the Los Rios
Community College District 	(District) 	and Los Rios College
Federation of Teachers' 	(LRCFT) 	interpretation of the collective
bargaining agreement. 	You contend that you should not be
required to work as an instructor for a thirty formula hour block
(one full-time year equivalent) 	after placement on the step 13
salary level in order to move to step 14. 	You argue that you
should be granted step 14 on the basis that you had accumulated
more than twenty-four years of service credit by the start of the
1996-97 academic year. 	You contend that the contrary
interpretation of 	the collective bargaining agreement does not
compensate you adequately for service provided and will 	impact
your retirement benefits. 	You believe that the union's
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interpretation of the collective bargaining agreement 	is
motivated by your past protected activity, 	including the 	filing
of unfair practice charges against the union. 	However, 	for the
reasons stated in my letter of August 8, 	1997, 	you have not
demonstrated discrimination and this 	allegation must be
dismissed.
SA-CO-387
Dismissal Letter
September 24, 	1997
Page 2
The new information which you provided in your third amended
charge regards an article written by Alan Frey, 	a community
college consultant of the California Teachers Association 	(CTA).
You state that you are an active member of a CTA affiliate, 	the
Los Rios Teachers Association, 	CTA/NEA. 	The publication in which
Mr. 	Frey's article appeared was delivered to your home.
CTA is a rival organization which has in the past attempted to
decertify the LRCFT as the exclusive bargaining agent at the
District. 	In the article, 	Frey is critical of certain actions
taken by union leadership at 	several community colleges. 	At one
point he states,
In yet another college, 	the union leadership
became so obsessed with its hatred of a
faculty member that it spent tens of
thousands of dollars 	fighting the member
rather than advocating on her behalf. 	In
this case, 	the phenomenal amounts of money
and time spent, 	could have, 	with the proper
union attitude, 	resulted in a settlement of
the issue years ago.
You state that Frey's office verified that 	in the above
quotation, 	he was referencing your situation.
You contend that the substance of Frey's article: 	"demonstrates
and documents 	that 	a reasonable person has 	in fact 	concluded that
the 	Federation's refusal 	to represent Deglow in dealing with her
employer is motivated by the Federation's need to impose 	sanction
upon Deglow because of her exercise of protected EERA
activities."
However, 	Frey's comments in the above article do not constitute
new facts which demonstrate a violation of the duty of 	fair
representation. 	Rather, 	they appear to be an opinion or
criticism of an employee of a rival 	labor organization.
Additionally, 	Frey's general remarks do not address the specific
facts upon which this charge is based. 	Accordingly, 	they do not
serve as the additional 	facts which would correct the
deficiencies 	in your charge which were explained in my letter of
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August 8, 	1997. 	For the reasons given in this letter and my
letter of August 8, 	1997, 	your charge must be dismissed.
SA-CO-387
Dismissal Letter
September 24, 	1997
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:
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.)
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SA-CO-387
Dismissal Letter
September 24, 	1997
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, 	Esquire
BMC:eke

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 	8, 	1997
Annette Barudoni Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice Charge No. 	SA-CO-387
WARNING 	LETTER
Dear Ms. Deglow:
You filed the above-referenced charge on March 20, 	1997. 	You
amended that charge on April 14, 	and again on July 7, 	1997.
Essentially, 	you allege a violation of the duty of fair
representation. 	We discussed this matter in my office on July
2, 1997.
On September 9, 	1996, 	you contacted Personnel Services at the
Los Rios Community College District 	(District) 	regarding your
salary schedule placement 	and possible advancement 	from Class
IV step 13 to step 14. 	On September 9, 	1996, 	you received a
letter from Mary T. 	Jones, 	Director of Personnel Services. 	In
that letter, 	Jones referred you to Article 2 section 2.5 of the
collective bargaining agreement between the District 	and the
Los Rios College Federation of Teachers 	(LRCFT or Federation).
She quoted section 2.5.4 which states:
As of July 1, 	1996, 	step placement shall
occur at the beginning of a semester
following completion of the required thirty
(30) 	formula hour block which has been
achieved from the 	last effective date of
step advancement.
Jones noted that your last 	step advancement was effective
retroactive to the 	1994/95 	academic year and that your teaching
load is forty percent 	(40%) 	of a full-time teaching position.
Jones concluded that based on this part-time teaching schedule
you would be eligible for placement on step 14 	at the beginning
of the spring 1997 semester. 	Jones stated, 	"At that time, 	you
will have completed the equivalent of a one hundred percent
(100%) 	assignment while on step 13."
On or about October 7, 	1996, 	you filed a grievance asserting
your right to placement on step 14 of the negotiated salary
schedule that 	is part of the collective bargaining agreement
between the Federation and the District. 	That agreement 	is
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effective July 1, 	1996 to June 30, 	1999. 	Article 2 Salaries
states in relevant part:
SA-CO-387
Warning Letter
August 8, 	1997
Page 2
Section 	2.5.1 	(previously section 	3.1)
Regular faculty employees, 	part-time
tenured employees, 	and temporary faculty
employees 	employed by the District before
July 1, 	1980, 	and with continued employment
and/or rights Fall Semester 1980, 	will
retain step placement on the appropriate
Salary Schedule A until 	additional 	step
placement 	is earned in accordance with
2.5.3 	or 2.5.4.
According to your charge, 	similar language is found in
negotiated agreements dating back to at least 1980. 	During
this entire time you have been a part-time tenured employee and
the District has based your salary progression on your part-
time status. 	You contend that the District is incorrect in its
position that you do not qualify for step 14 of the salary
schedule. 	You base this contention in part on your reading of
a 1981 arbitration decision granting you a specific 	level of
tenure for purposes of the salary schedule and a court decision
from that 	same time 	frame which you state 	"validated the
arbitration findings 	in favor of Deglow and against 	the
District." 	You state that within the findings and decision of
the arbitration award was a confirmation that, 	as of 1980, 	you
were entitled to eighteen years of longevity steps. 	As of the
1994-95 	school year you had 23.60 years of service credit.
You contend in your second amended charge that 	all 	certificated
employees, 	regardless of their date of hire or their age and
classification, 	should proceed through the 	salary schedule
based on years of training and experience. 	You believe that
based on your years of experience, 	you have an absolute right
to the maximum step of the salary schedule until 	such time that
the maximum step exceeds your total years of service credit.
You also contend that 	it 	is not true that all tenured track
faculty must complete the equivalent of thirty (3 0)
instructional hours on a step before advancing. 	An instructor
new to the 	salary schedule can retain and transfer up to six
(6) 	years of accumulated service credit/experience. 	A faculty
member who moves 	from one class to another by virtue of
increased education may advance multiple steps. 	You cite
examples, 	in 1984 and 1985, 	wherein certain employees gained as
many as nine steps at one time in advancement.
By letter of October 9, 	1996, 	you were informed by the LRCFT
that it would represent you in the grievance. 	However, 	the
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Federation did state that 	it 	had not had an opportunity to
analyze the grievance and that 	representation should not be
construed to mean that the Federation believed that 	the
grievance had merit. 	By letter of November 19, 	1996, 	LRCFT
stated that 	it would represent you at the District 	level
grievance hearing. 	However, 	the Federation also stated that
"unless new evidence was presented or new arguments were
developed, 	the Federation believes that no contractual
violations have occurred as a result of the District's action
of not placing you on the new top of the Salary Schedule A.
According to the agreement 	(Article 2, 	Section 2.5.3 	and
2.5.4), 	all tenure track faculty must complete the equivalent
of thirty instructional hours to be eligible 	for step placement
service credit." 	The Federation also stated its belief that
the 1981 Board of Review decision did not address your
continuing placement on the maximum step of the Salary
Schedule.
SA-CO-387
Warning Letter
August 8, 	1997
Page 3
By letter of December 10, 	1996, 	you were advised that the
Federation's Executive Board would consider whether to move
your grievance to a Board of Review 	(arbitration) 	in its
December 11, 	1996 meeting. 	At that meeting you had an
opportunity to address the Executive Board and explain your
position.
By letter of December 13, 	1996, 	Robert Perrone, 	the Executive
Director of the Federation, 	informed you that the Executive
Board had voted not to take your grievance to a Board of
Review. 	He explained the Federation's position that the 1981
Board of Review decision did not give you year for year service
credit 	into perpetuity. 	He stated that 	service credits must be
earned in conformity with the 	collective bargaining agreement
language which covers part-time tenured faculty. 	He also
explained why your arguments 	that the District had
discriminated based on age, 	gender and race in applying the
salary schedule did not have merit.
You again addressed the Federation Executive Board regarding
this matter on January 29, 	1997, 	providing in advance "a copy
of the historical record." 	On March 26, 	1997, 	you received a
letter from the Federation-indicating that 	the Executive Board
had voted to uphold its decision not 	to take your grievance to
a Board of Review for the reasons stated in the December 13,
1996 letter. 	You allege that this denial of the Board of
Review violates the Federation's duty of fair representation.
The violation of the duty of 	fair representation occurs when an
exclusive representative union exhibits arbitrary,
discriminatory or bad faith conduct 	toward a union member in
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representing 	that 	member 	in 	a matter 	arising out 	of 	the
collective 	bargaining 	relationship. 	(Sacramento 	City Teachers
Association 	(Fanning) 	(1984) 	PERB Decision No. 	428.)
Accordingly, 	PERB will 	dismiss 	a 	charge 	that 	the 	duty of 	fair
representation has 	been breached by a 	refusal 	to 	take 	a
grievance 	to 	arbitration 	if 	the union makes 	a 	reasonable
determination 	that 	the grievance 	lacks merit. 	(Los Angeles
Unified School District 	(1985) 	PERB Decision No. 	526.) 	In
determining whether 	such a 	reasonable 	determination 	has 	been
made 	the 	Board does 	not 	determine whether 	the 	union's
assessment was 	correct, 	but 	only whether that 	determination had
a 	rational 	basis 	or was 	based on reasons 	that 	were 	arbitrary or
based upon 	invidious 	discrimination. 	(Sacramento 	City
-------·Teachers Association, 	supra.- 	- ) 	Section 2.5, 	on its 	face,.
appears 	to 	grant 	part-time 	faculty the 	right 	to 	advance 	one
step 	only after 	completing a 	thirty 	instructional 	hour block.
Because 	you 	had not 	completed 	this 	amount 	of 	instruction while
at 	step 	13, 	the 	LRCFT believed you were not 	entitled to 	step
14. 	The 	Federation appears 	to have made a reasonable
determination that your grievance 	lacked merit. 	Accordingly
this 	allegation 	is 	dismissed.
SA-CO-387
Warning 	Letter
August 8, 	1997
Page 4
You have not 	only alleged that 	LRCFT's 	action 	in 	this 	matter
was unreasonable, 	but 	that 	in 	fact 	it 	is discriminatory based
on your protected activity. 	It 	is 	true 	that you have 	engaged
in protected 	activity by 	filing 	numerous 	unfair practice
charges against 	the Federation over the years. 	However, 	to
demonstrate 	illegal 	discrimination 	it 	must 	be 	demonstrated that
the 	Federation was 	motivated by your protected activity. 	(See
Novato Unified School District 	(1982) 	PERB Decision 210.) 	Such
motivation 	can be 	inferred 	from 	circumstantial 	evidence 	such as
timing plus 	disparate 	treatment 	of 	an employee. 	(Novato,
supra.) 	However, 	in this 	case 	there has been no disparate
treatment 	or 	other 	circumstantial 	evidence 	demonstrated by the
Federation's 	refusal. 	No 	improper motive 	is demonstrated by
the 	LRCFT's 	refusal 	to proceed 	to 	arbitration under a 	theory
which it 	reasonably considers 	insupportable. 	Accordingly, 	this
allegation must 	also 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 Third 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
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receive an amended charge or withdrawal 	from you before August
15, 	1997, 	I shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	322-3198, extension 355.
SA-CO-387
Warning Letter
August 8, 	1997
Page 5
Sincerely,
Bernard McMonigle
Regional Attorney
BMC:eke