Los Rios College Federation of Teachers (Deglow) (PERB 1275E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE 	(BARUDONI) 	DEGLOW,
Charging 	Party,
v.
LOS RIOS 	COLLEGE FEDERATION OF
TEACHERS/CFT/AFT LOCAL 2279,
Respondent.
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) 	Case No. 	SA-CO-3 85
PERB Decision No. 	1275
July 20, 	1998
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Appearances: 	Annette 	(Barudoni) 	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; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Annette 	(Barudoni)
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 its 	duty of 	fair representation
in violation of 	section 3544.9 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 and/or interfered with her exercise of
rights under EERA section 3543, 	thus violating EERA section
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government 	Code. 	EERA section 3544.9 provides:
EERA
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.

3543.6(b),2 when it agreed to contract 	language that 	limits
2EERA section 3543 	states:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose 	of
representation on all matters 	of 	employer-
employee 	relations. 	Public school 	employees
shall 	also have 	the 	right 	to 	refuse 	to join
or participate 	in the activities 	of 	employee
organizations 	and shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the public 	school
employer, 	except that once the employees 	in
an appropriate unit 	have 	selected an
exclusive 	representative 	and 	it 	has 	been
recognized pursuant 	to Section 3544.1 	or
certified pursuant 	to Section 3544.7, 	no
employee 	in that unit may meet 	and negotiate
with the public 	school 	employer.
Any employee may at 	any 	time present
grievances 	to his employer, 	and have such
grievances adjusted, 	without 	the 	intervention
of 	the exclusive 	representative, 	as 	long as
the adjustment 	is 	reached prior to
arbitration pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is not 	inconsistent with the 	terms of a
written agreement 	then in effect; 	provided
that 	the public 	school 	employer shall 	not
agree 	to a resolution of 	the grievance until
the 	exclusive 	representative 	has 	received a
copy 	of 	the grievance 	and 	the proposed
resolution and has been given 	the 	opportunity
to file a response.
EERA 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.
22

individual 	grievants' 	right 	to representation at grievance
meetings.
After 	investigation, 	the Board agent 	dismissed the 	charge
for 	failure 	to 	establish a prima 	facie 	case.
The 	Board has 	reviewed the entire 	record in this 	case,
including the 	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.3
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-385 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Dyer 	joined 	in this 	Decision.
Chairman 	Caffrey's 	concurrence and dissent 	begins 	on page 	4.
3The 	Board notes 	that 	the 	collective bargaining agreement
(CBA) 	in effect both prior and subsequent 	to the 	February 7, 	1995
modification provided 	that 	employees 	could present 	grievances 	to
the District 	either alone 	or with 	the assistance 	of 	a union
representative. 	Accordingly, 	the February 7 modification
resulted 	in no objective harm to employee 	rights. 	The 	element 	of
adverse action lacking, 	the Board declines 	to 	find that 	the
Federation discriminated against 	Deglow because 	of 	her protected
activities when 	it 	negotiated a 	change 	in the 	language 	of 	the
CBA. 	(See Palo Verde Unified School District 	(19 88) 	PERB
Decision No. 	689 at p. 	12; 	see also, 	Los Rios College Federation
of Teachers/CFT/AFT Local 	2279 	(Deglow) 	(1991) 	PERB Decision
No. 	897, 	warning letter at p. 	3 	(same standards apply to employee
organization as 	to 	employer 	in discrimination 	cases).)
33

CAFFREY, 	Chairman, 	concurring and dissenting: 	I concur in
the majority's 	dismissal 	of 	the 	charge 	that 	the Los 	Rios 	College
Federation of Teachers, 	CFT/AFT Local 	2279 	(Federation)
unlawfully denied 	charging party Annette 	(Barudoni) 	Deglow
(Deglow) 	access 	to the arbitration process. 	I 	further concur in
the majority's 	denial 	of 	the 	Federation's 	request 	that 	the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	order sanctions
against Deglow in this 	case. 	However, 	I 	conclude 	that Deglow has
stated a prima 	facie 	case 	of unlawful 	interference and
discrimination by 	the 	Federation 	in violation 	of 	Section
3543.6(b) 	of the Educational Employment Relations Act 	(EERA).
Therefore, 	I dissent 	from the majority's 	dismissal 	of 	that
portion of 	the unfair practice 	charge.
DISCUSSION
In November 	1996, 	Deglow filed a grievance with the 	Los 	Rios
Community College District 	(District) 	and 	sought 	representation
from the 	Federation. 	The 	Federation declined 	to 	represent 	Deglow
in the grievance.
On February 3, 	1997, 	Deglow agreed to a February 12 meeting
with 	the District 	concerning 	the 	grievance. 	Deglow advised 	the
District 	that 	an attorney would accompany her 	to 	the meeting.
On February 7, 	1997, 	the District and the Federation agreed
to modify 	the portion of 	their 	collective bargaining agreement
(CBA) 	concerning representation in the grievance process. 	Prior
to 	the modification, 	CBA Article 	13.2.1.1 	described an employee's
right 	to 	representation as:
4

At 	the Informal, 	College and District 	levels,
the 	grievant may 	choose 	either:
a. 	to be 	represented accompanied by 	[a
Federation] 	agent, 	or
b. 	to be 	represented by herself 	or himself
alone.
The 	February 	7 	CBA modification 	changed Article 	13.2.1.1 	to
describe 	the 	right 	to representation as 	follows:
At the Informal, 	College, 	and District
levels, 	the grievant may:
a. 	request 	[Federation] 	representation. 	If
the 	[Federation] 	agrees 	to represent at 	the
Informal, 	College, 	or District level, 	no
commitment 	to pursue 	the grievance 	to a Board
of Review is 	implied.
OR
b. 	represent 	herself 	or himself 	alone.
This 	option applies 	to 	situations 	in which
the 	grievant 	does 	not 	request 	[Federation]
representation 	or 	to 	situations 	where 	the
[Federation] 	denies a representation request.
On February 10, 	1997, 	the District advised Deglow of 	the CBA
modification and told her that, 	as a result of the change, 	the
attorney 	she 	had planned 	to bring 	to 	the 	February 	12 	grievance
meeting 	could not 	attend.
On March 3, 	1997, 	Deglow filed the 	instant unfair practice
charge alleging, 	among other things, 	that 	the Federation
unlawfully 	retaliated 	against 	her 	and 	interfered with 	her 	EERA-
protected 	rights 	by agreeing 	to a 	CBA modification which deprived
her of assistance 	in the presentation of 	her grievance. 	Deglow
asserts 	that 	she has 	a right 	to obtain assistance 	in the 	exercise
5
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of 	the 	right 	to 	self-representation 	in grievances provided by-
EERA section 3543, 	which states 	in pertinent part:
Any 	employee may at 	any 	time present
grievances 	to his 	employer, 	and have such
grievances adjusted, 	without 	the 	intervention
of 	the exclusive representative, 	as 	long as
the adjustment 	is 	reached prior to
arbitration pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is 	not 	inconsistent with the 	terms 	of a
written agreement 	then in effect; 	provided
that 	the public 	school 	employer shall 	not
agree 	to a resolution of 	the grievance until
the 	exclusive 	representative has 	received a
copy of 	the 	grievance 	and 	the proposed
resolution and has 	been given 	the 	opportunity
to 	file a response.
The 	Board has 	addressed 	itself 	on 	several 	occasions 	to 	the
issue 	of 	the 	limitations 	on the 	employee 	right 	to grievance 	self-
representation provided by EERA section 3543. 	For example, 	the
Board has 	held 	that 	an employee has 	no 	right 	to be 	represented 	in
a 	grievance 	by a 	representative 	of 	a 	competing 	employee
organization 	(Mount Diablo Unified School District, 	et al. 	(1977)
EERB Decision No. 	441) ; 	that the right to self representation in
grievances does not 	extend to the arbitration stage 	(Mt. 	Diablo
Unified School District 	(1978) 	PERB Decision No. 	68); 	and that
the 	exclusive 	representative does 	not breach its 	duty of 	fair
representation by 	refusing 	to provide 	an 	employee 	with 	the
representative 	or 	counsel 	of 	her 	choice 	(United Teachers
Los Angeles 	(Bracey) 	(1987) 	PERB Decision No. 	616).
1Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment Relations Board 	(EERB).
6

In dismissing Deglow's 	charge, 	the Board agent 	relies 	on
Chaffey Joint Union High School 	District 	(1982) 	PERB Decision
No. 	202 	(Chaffey Joint Union) 	to conclude that 	the Federation's
agreement 	to 	the 	CBA modification which denied Deglow 	the 	right
to assistance 	in 	the presentation of 	her grievance 	did not
constitute a prima 	facie violation of 	the 	EERA.
In Chaffey Joint Union, 	the Board considered whether EERA
section 	3543 	permitted a 	contract 	provision which 	limited an
employee's 	right 	to be assisted 	in a grievance 	to a
representative 	selected by 	the 	exclusive 	representative. 	The
Board 	concluded 	that 	the 	contract provision was 	not 	unlawful,
finding 	that 	it was 	consistent with EERA's 	objective 	of providing
for 	continuity 	and 	stability 	in 	employer-employee 	relations
through exclusive representation. 	Importantly, 	the Board in
Chaffey Joint 	Union did not 	consider whether EERA section 	3543
permitted a 	contract 	provision 	indicating 	that 	an 	employee 	could
have no assistance 	in 	the 	self-representation of 	a grievance.
More 	recently 	in Valley of 	the Moon Teachers Association.
CTA/NEA 	(McClure) 	(1996) 	PERB Decision No. 	1165, 	the Board
considered an 	allegation 	that 	the 	exclusive 	representative
violated 	its 	duty of 	fair 	representation by 	refusing 	to 	share
information with 	the private 	counsel 	retained by an 	employee 	who
was 	representing herself 	in a grievance. 	While 	the 	charge was
dismissed, 	the Board declined to hold that 	the 	employee did not
have 	the 	right 	to the assistance of 	counsel 	in grievance 	self-
representation. 	Instead, 	the Board emphasized that 	it 	"has 	never
77

held 	that 	the 	EERA entitles 	an exclusive 	representative 	to
interfere with a member's 	selection of private 	counsel."
I 	agree with the 	limitations 	on the 	right 	to grievance 	self-
representation enunciated in these prior decisions, 	but 	I 	find
them all 	to be 	distinguishable 	from the 	instant 	case. 	The Board
has 	not 	specifically addressed 	itself 	to 	the 	circumstances
presented 	here.
Here, 	Deglow specifically requested grievance 	representation
from the 	Federation. 	The 	Federation declined 	to provide 	that
representation, 	thereby leaving Deglow to represent herself. 	The
Federation and District 	then agreed 	to a 	CBA modification 	to
provide 	that 	Deglow could have 	no assistance 	in 	that 	self-
representation 	- 	that she must 	represent herself 	"alone" 	- 	even
though 	the 	Federation denied her 	representation 	request.
Therefore, 	the 	issue presented by this 	case 	is whether the
Federation violated 	the 	EERA when 	it 	agreed 	to a 	CBA provision
which provides 	that 	an employee may not 	be 	assisted by any
representative 	or 	counsel 	when engaged 	in grievance 	self-
representation after denial 	of 	representation by 	the 	exclusive
representative.
Unlike 	the prior cases, 	this 	case presents no 	issue
involving 	the 	employer and 	exclusive 	representative 	agreeing 	to
conditions 	under which employees may engage 	in grievance 	self-
representation; 	no 	issue 	involving 	representation by a 	rival
employee 	organization; 	no 	issue 	of 	an exclusive 	representative's
authority to 	select 	or approve 	an employee's 	grievance
8

representative; 	and no 	issue 	of 	the 	exclusive 	representative
refusing 	to provide 	an employee with a 	specific 	representative 	of
her choice. 	Clearly, 	there 	is nothing in any of 	the cases 	cited
above which equates 	to the 	circumstances 	in 	the 	case at 	bar.
Consequently, 	the prior cases 	do not 	lead to 	the 	conclusion that
the 	Federation 	can act 	to deny Deglow any assistance 	or 	counsel
in her grievance 	self-representation after 	the 	Federation has
declined 	to 	represent 	her.
EERA section 3543 	provides 	employees 	the 	right 	to self-
representation in grievances. 	While 	that 	right 	is not unlimited,
it must 	include 	the 	right 	of 	the grievant 	to obtain assistance 	or
counsel 	in presenting a grievance when 	the 	exclusive
representative denies 	representation 	to 	the 	employee, 	and 	there
has 	been no 	indication 	that 	the 	assistance would 	in any way
compete 	or conflict 	with 	the 	authority and 	role 	of 	the 	exclusive
representative. 	These are 	the 	circumstances present 	in the
instant 	case. 	Therefore, 	I 	conclude that 	there has been a
showing of a prima 	facie violation of 	EERA in this 	case, 	based on
the 	theory 	that 	the 	Federation's 	conduct 	interfered with Deglow's
exercise 	of 	the EERA-protected right 	of 	grievance 	self-
representation 	(Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89), 	and based on the theory that the Federation
discriminated and 	retaliated against 	Deglow 	for her 	exercise 	of
EERA-protected rights 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210). 	I would reverse the dismissal of that portion
of 	the unfair practice 	charge and issue a 	complaint.
99

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
April 	24, 	1997
Annette 	(Barudoni) 	Deglow
Re: 	NOTICE 	OF 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
DENIAL 	OF 	REQUEST 	FOR 	SANCTIONS
Annette 	(Barudoni) 	Deglow v. 	Los Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice 	Charge No. 	SA-CO-385
Dear Ms. 	Deglow:
The 	above-referenced unfair practice 	charge, 	filed with 	the
Public 	Employment 	Relations Board 	(PERB or Board) 	on March 3,
1997, 	alleges 	that 	the Los Rios 	College Federation of
Teachers/CFT/AFT/Local 	2279 	(Federation) 	breached 	its 	duty of
fair 	representation 	in violation of 	Government 	Code 	section
3544.9 	and/or 	interfered with your 	exercise 	of 	rights 	under
Government 	Code 	section 3543, 	thus violating Government 	Code
section 3543.6(b).
I 	indicated to you, 	in my attached letter dated April 	4, 	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
April 	14, 	1997, 	the charge would be dismissed.
Your subsequent 	request 	for additional 	time was granted, 	and on
April 	22, 	1997 	a 	letter responding to my April 	4 	letter was
filed.
Discussion
Your April 	22, 	1997 	letter largely consists 	of 	argument 	setting
forth 	the public 	policy 	issues 	which you believe 	the 	instant
charge 	raises 	and 	how both 	statutory 	and 	case 	law 	should be
applied to those 	issues. 	The 	letter further contends, 	however,
that my April 	4, 	1997 	letter contained one 	factual 	error, 	namely
the 	statement 	on page 	one 	of 	that 	letter that 	only 	the 	Federation
.
e

Dismissal 	Letter
SA-CO-3 85
April 24, 	1997
Page 2
or District1 Chancellor may appeal 	a Board of 	Review decision 	to
the Board of 	Trustees.
Your 	letter 	correctly quotes 	the 	current 	written 	agreement 	as
providing, 	in Article 13, 	Section 13.4.3.5, 	that a 	"decision of
the Board of Review 	. 	. 	. 	shall become binding on all parties
unless 	appealed by 	the 	aggrieved 	or 	the 	Chancellor." 	[Emphasis
added.] 	However, 	the 	conclusory statement 	quoted 	from my
April 	4, 	1997 	letter relied on a reading of 	Section 	13.4.3.5 	in
concert with other relevant provisions of 	the 	agreement, 	as
follows:
1. 	Section 	13.2.1.2 	states 	that, 	should the 	Federation
choose 	not 	to 	appeal 	to 	a Board of 	Review or 	the 	Board
of 	Trustees, 	the 	"administrative 	remedy of 	the 	grievant
shall 	be 	deemed 	exhausted."
2. 	The 	language 	of 	Section 	13.4.3.5 	which you quote 	is
found within Section 	13.4.3, 	which provides 	for a 	right
of 	appeal 	to a Board of 	Review by the 	Federation but
not 	by an 	individual 	grievant.
3. 	Section 	13.4.4 	expressly states 	that 	the 	Federation or
the 	Chancellor may appeal 	a 	decision of 	the 	Board of
Review to 	the 	Board of 	Trustees, 	but 	nowhere 	references
a 	right 	of 	appeal 	by an 	individual 	grievant.
Reading these provisions 	together, 	my conclusion remains 	that 	the
"aggrieved" 	referenced by Section 	13.4.3.5 	is 	the 	Federation.
The 	additional 	argument 	submitted by 	letter 	consists 	of 	a 	review
of 	PERB 	case 	law and 	EERA 	language 	previously 	considered 	and
discussed in my April 	4, 	1997 	letter. 	I 	have 	considered your
arguments 	but 	still 	conclude 	that 	Chaffey Joint 	Union High 	School
District 	(1982) 	PERB Decision No. 	202 	(Chaffey) 	is applicable
under 	the 	facts 	of your case 	and requires 	dismissal 	of 	the
charge.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	discussed above 	as well 	as 	those 	contained 	in my April 	4,
1997 letter.
Request 	for 	Sanctions
In an oral 	response 	to the 	instant 	charge, 	the 	Federation argues
that 	sanctions 	against 	the 	Charging 	Party are 	appropriate 	in 	this
case, 	citing Los 	Rios 	College 	Federation of Teachers 	(Deglow)
(1996) 	PERB Decision No. 	1133 	(Deglow), 	Los Rios College
1District" 	herein 	refers 	to 	the 	Los 	Rios 	Community 	College
District.

Dismissal 	Letter
SA-CO-385
April 24, 	1997
Page 3
Federation of Teachers, 	CFT/AFT Local 	2279 	(Deglow) 	(1996) 	PERB
Decision No. 	113 7 	and Los Rios 	College Federation of Teachers,
CFT/AFT Local 	2279 	(Deglow) 	(1996) 	PERB Decision No. 	1140. 	The
Federation argues 	that, 	because 	the underlying grievance 	for
which 	Charging 	Party 	sought 	representation 	concerned 	an 	issue
(seniority date) 	which has been 	the 	subject 	of previous
unsuccessful 	unfair practice 	charges, 	the 	facts bring this 	case
within 	the 	ambit 	of 	the 	warning 	issued by 	the 	Board 	in 	Deglow.
The Board described the 	standard 	for 	sanctions 	in Los 	Angeles
Unified 	School 	District/California 	School 	Employees 	Association
(Watts) 	(1982) 	PERB Decision No. 	181a 	(LAUSD) 	as follows:
The Board notes 	that Mr. 	Watts 	has repeatedly
filed 	complaints 	which 	are 	virtually
identical 	in content 	to 	this 	despite 	the
Board's 	patient 	and adverse 	rulings.
[Citations 	omitted.]
Mr. 	Watts' 	repeated raising of 	such
nonmeritorious 	complaints 	abuse 	Board
processes 	and wastes 	State 	resources.
Further, 	respondents 	must 	necessarily incur
expenses 	in time, 	effort 	and money in
continually defending 	against 	the 	same
charges. 	Accordingly, 	the Board sees 	fit 	to
order that Mr. 	Watts 	cease and desist 	from
filing 	complaints 	which merely 	raise 	facts
and questions 	of 	law which the 	Board has
already fully considered. 	Further, 	if 	such
complaints 	are 	filed 	in the 	future, 	the Board
will 	consider 	the 	possibility of 	assessing
Mr. 	Watts 	any litigation expenses 	incurred by
a 	respondent 	while 	trying 	to 	defend 	against
such actions.
In Deglow, 	the Board emphasized that 	it 	is 	the 	"repeated
presentation 	of 	charges 	based 	on 	circumstances 	which 	have 	been
considered by 	the 	Board 	in 	related 	cases 	previously 	[which
suggest] 	an abuse of that process." 	Likewise, 	in Los Angeles
Unified School 	District 	(Watts) 	(1993) 	PERB Decision No. 	1013 	the
Board reversed a Board agent's 	award of 	attorney's 	fees, 	ruling
that 	the 	issues 	in 	the 	case were 	"properly before 	the 	Board" 	and
had 	"not been the 	subject of Board decisions 	in the past." 	(See
also Los Angeles 	Community College District 	(Watts) 	(1984) 	PERB
Decision No. 	411 	and United Teachers of 	Los Angeles 	(Watts)
(1993) 	PERB Decision No. 	1018.)
The 	facts 	in 	the present 	case 	do not 	warrant 	a 	finding 	that
Charging 	Party 	is 	engaged 	in 	the 	kind of 	"repeated presentation
of 	charges" 	(Deglow) 	which are 	"virtually identical 	in content"
to 	issues previously raised by her before 	the Board. 	(LAUSD; 	see

Dismissal 	Letter
SA-CO-385
April 24, 	1997
Page 4
also Deglow.) 	The 	Federation's 	argument 	that 	the 	content 	of 	the
underlying grievance 	where 	Charging 	Party was 	denied 	a 	right 	to
outside 	counsel 	transforms 	the 	issue before 	PERB 	into 	the 	same
issue brought 	before 	PERB by her before 	is 	unpersuasive. 	The
legal 	issue presented 	in 	the 	present 	case 	involves 	an
interpretation 	of 	how employee 	and 	exclusive 	representative
rights 	are 	harmonized; 	not 	how Charging 	Party's 	seniority date 	is
calculated or 	even whether 	the 	Federation has 	fairly 	represented
her 	concerning her 	dispute 	with 	the 	District 	over 	her 	seniority
date. 	The 	legal 	issue 	in the present 	case has 	seldom come before
PERB 	at 	all, 	and my review of 	PERB 	case 	records 	does 	not 	disclose
any prior 	instance 	where 	Charging 	Party 	raised 	it.
It 	is 	the 	role 	of 	PERB to determine when and how its 	case 	law
applies 	to the 	facts of 	a particular case. 	While 	the
determination 	reached above 	finds 	Chaffey 	to be 	controlling under
the 	facts of the 	instant 	case, 	it 	is 	also true that 	these 	facts
are not 	identical 	to those 	in Chaffey. 	Thus, 	the 	issue presented
was one which 	is 	"properly before 	the Board." 	(Los Angeles
Unified School District 	(Watts) 	(1993) 	PERB Decision No. 	1013.)
The 	record here 	does 	not 	support 	a 	finding that 	Charging 	Party
has 	engaged in 	conduct which 	is 	"without 	arguable merit,
frivolous, 	vexatious, 	dilatory, 	pursued in bad faith or otherwise
an abuse 	of process." 	(State 	of 	California 	(Office 	of 	the
Lieutenant Governor) 	(1992) 	PERB Decision No. 	920-S. 	See also
Chula Vista City School District 	(1990) 	PERB Decision No. 	834.)
The 	request 	for 	sanctions 	in this 	case 	is 	denied.
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).)

Dismissal 	Letter
SA-CO-385
April 24, 	1997
Page 5
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 Les 	Chisholm
Regional 	Director
Attachment
cc: 	Adam H. 	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
April 	4, 	1997
Annette 	(Barudoni) 	Deglow
Re: 	WARNING LETTER
Annette 	(Barudoni) 	Deglow v. 	Los Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice 	Charge No. 	SA-CO-385
Dear Ms. 	Deglow:
The 	above-referenced unfair practice 	charge, 	filed with 	the
Public Employment 	Relations 	Board 	(PERB 	or Board) 	on March 	3,
1997, 	alleges 	that 	the Los Rios 	College Federation of
Teachers/CFT/AFT/Local 	2279 	(Federation) 	breached 	its 	duty of
fair 	representation 	in violation 	of 	Government 	Code 	section
3 544.9 	and/or 	interfered with your 	exercise 	of 	rights 	under
Government 	Code 	section 	3543, 	thus 	violating Government 	Code
section 3543.6(b).
The 	relevant 	facts 	are as 	follows. 	You are 	employed by the 	Los
Rios 	Community College District 	(District) 	in a bargaining unit
represented by the 	Federation. 	On November 13, 	1996, 	you filed
grievance 	5-F96 	seeking 	correction 	of 	an 	error 	regarding your
first 	date of 	employment 	with the 	District. 	You 	sought
Federation representation on this 	grievance, 	but 	the 	Federation
declined 	to 	represent 	you.
Under 	the 	collective 	bargaining 	agreement 	between 	the 	District
and Federation, 	in Article 	13, 	the 	steps or levels 	in the
grievance procedure are defined as 	Informal, 	College, 	District,
Board of 	Review and Board of 	Trustees. 	The 	Board of 	Review 	level
is 	equivalent 	to 	advisory arbitration. 	A grievance 	may be 	filed
by either a unit 	employee or 	the 	Federation 	itself. 	However,
only the 	Federation may 	file 	an appeal 	to a Board of 	Review, 	and
only the 	Federation or District 	Chancellor may appeal 	to 	the
Board of 	Trustees.
The 	current 	agreement 	indicates 	in 	Section 	13.2.1.1 	that 	a
grievant may choose, 	at 	the 	Informal, 	College and District
levels, either:
a. 	to be 	represented accompanied by 	[a
Federation] 	agent, 	or
b. 	to be 	represented by herself 	or himself
alone.

Warning 	Letter
SA-CO-385
April 4, 	1997
Page 	2
The 	agreement 	further describes 	the 	Federation's 	right 	to 	have 	an
observer present 	at 	meetings 	between 	the 	grievant 	and District
where option 	"b" 	above 	is 	chosen, 	and the Federation's 	right 	to
be 	notified of 	and have 	the 	opportunity to 	comment 	on 	any-
proposed 	settlement 	of 	a 	grievance.
Section 13.2.1.2 	reads 	as 	follows:
At 	the 	Board of 	Review and Board of 	Trustees,
the 	grievant 	must 	be 	represented by 	[the
Federation]. 	Should 	[the Federation] 	choose
not 	to appeal 	to these 	levels, 	the
administrative 	remedy of 	the 	grievant 	shall
be 	deemed 	exhausted.1
Prior to 	February 3, 	1997,2 you 	and the 	District 	agreed on 	the
date 	of 	February 	12 	for a District 	level 	meeting on your
grievance. 	You advised the District 	that 	an attorney, 	Robb
Hewitt, 	would attend the meeting with you.
On February 10, 	you were 	approached by a District 	representative,
who 	indicated 	that 	the 	District 	and 	Federation had modified
Article 	13 	and under 	its 	revised terms 	you would not 	be 	able 	to
have 	your attorney attend the 	February 	12 	meeting. 	The 	District
also provided you with a 	copy of 	the modified agreement, 	dated
February 7, 	which reads as follows:
13.2.1.1 	At the Informal, 	College, 	and
District 	levels, 	the grievant may:
a. 	request 	[Federation] 	representation. 	If 	the
[Federation] 	agrees to represent 	at 	the
Informal, 	College, 	or District level, 	no
commitment 	to pursue 	the 	grievance 	to 	a Board
of 	Review is 	implied.
OR
b. 	represent 	herself 	or himself 	alone. 	This 	option
applies 	to 	situations 	in which the grievant 	does
1The 	foregoing 	citations 	to 	the 	agreement 	are 	based on 	the
copy on file 	in this 	office, 	pursuant 	to 	PERB regulation 32120.
The 	agreement 	on 	its 	face 	is 	effective 	for the period July 	1,
1996 through June 30, 	1999.
2All 	dates 	referenced are 	in the 	calendar year 	1997, 	unless
otherwise 	specified.

Warning 	Letter
SA-CO-385
April 4, 	1997
Page 3
not 	request 	[Federation] 	representation or to
situations where 	the 	[Federation] 	denies 	a
representation 	request.
On February 12, 	the District 	refused to allow Mr. 	Hewitt 	to
attend or participate 	in 	the 	grievance 	meeting. 	The 	District
also 	informed you 	that, 	under Article 	13, 	your grievance 	could
not 	be 	considered 	for 	the 	arbitration 	(Board of 	Review) 	process
if 	the 	Federation declined to 	represent 	you.
On February 24, 	you attempted at 	the 	employee's 	request 	to
represent a fellow District employee, 	Elmer 	(John) 	Sander,
concerning his 	grievance. 	The District 	again cited the
February 7 	agreement 	as 	grounds 	for refusing to 	allow you 	to
participate 	in the meeting on Mr. 	Sander's 	grievance.
Discussion
Your 	charge 	alleges 	that 	both 	the 	denial 	of 	the 	opportunity 	to
have 	representation 	in a 	grievance meeting and denial 	of 	your
opportunity 	to 	take 	your grievance 	to 	arbitration without
Federation 	representation violates 	your 	rights 	under 	the
Educational 	Employment Relations Act 	(EERA).3 Though argued as
both 	a 	duty of 	fair 	representation 	and 	interference 	violation,
the 	legal 	theory which must 	be 	considered under the 	facts 	of 	the
case 	is 	whether the 	Federation, 	by agreeing to the 	contract
provisions 	described 	above, 	unlawfully 	interfered with 	the
exercise 	of 	rights 	which are 	provided absolute protection under
the 	EERA.
[I]n order 	to 	establish a prima 	facie 	case 	of
unlawful 	interference, 	the charging party
must 	establish that 	the 	respondent's 	conduct
tends 	to 	or does 	result 	in some 	harm to
employee 	rights 	granted under EERA. 	(State
of 	California 	(Department 	of 	Developmental
Services) 	and Public Practice Bureau/
California Medical Association 	(1983) 	PERB
Decision No. 	344-S, 	citing Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89;
Service Employees 	International 	Union, 	Local
99 	(Kimmett) 	(1979) 	PERB Decision No. 	106.)
Under 	the 	above-described test, 	a violation may only be 	found 	if
EERA provides 	the 	claimed rights. 	(Ibid.)
3The 	EERA is 	codified at 	Government 	Code 	section 	3540 	et
seq.

Warning 	Letter
SA-CO-3 85
April 4, 	1997
Page 	4
Your charge 	cites 	EERA section 3543, 	as well 	as Mount 	Diablo
Unified 	School 	District/Santa 	Ana 	Unified 	School
District/Capistrano Unified School 	District 	(1977) 	EERB4
Decision No. 	44 	(Mount Diablo 	I) 	and Mount Diablo Unified School
District 	(1978) 	PERB Decision No. 	68 	(Mount Diablo II) . 	in
support 	of your contentions.
EERA section 	3543 	provides 	in 	relevant part 	as 	follows:
Any employee 	may at 	any time 	present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the 	intervention
of 	the exclusive 	representative, 	as 	long as
the 	adjustment 	is 	reached prior 	to
arbitration pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is 	not 	inconsistent 	with the 	terms 	of 	a
written agreement 	then in effect; 	provided
that 	the public 	school 	employer 	shall 	not
agree 	to 	a 	resolution of 	the grievance until
the 	exclusive 	representative 	has 	received a
copy of 	the 	grievance 	and the proposed
resolution 	and has 	been given 	the 	opportunity
to 	file 	a response.
The 	two parts 	of your argument 	will 	be 	evaluated 	in 	light 	of 	this
statutory language, 	and relevant precedent.
Access 	to Arbitration
In Mount 	Diablo 	II, 	the Board rejected the 	argument 	that 	the
right 	of 	self-representation extends 	to 	the 	arbitration process,
quoting 	the 	language 	of 	EERA section 	3543 	and observing 	that:
On its 	face, 	the 	statutory right 	of 	self-
representation 	falls 	short 	of 	the 	right 	to
resort 	to 	the 	arbitration process.
It 	is not 	clear what 	in the parties' 	February 7 	agreement 	helped
clarify 	(or 	confuse) 	whether an 	individual 	employee 	could appeal
a grievance 	to 	the 	Board of 	Review level, 	as 	the 	collective
bargaining 	agreement 	already 	expressly provided 	that 	only 	the
Federation could 	file 	such an 	appeal.
4Prior to January 1, 	1978, 	PERB was known as the Educational
Employment Relations Board 	(EERB).

Warning 	Letter
SA-CO-385
April 4, 	1997
Page 	5
Under 	the 	statute 	and Board precedent, 	this 	contractual
limitation does 	not 	violate your 	section 	3543 	rights, 	and this
element 	of 	the 	charge must 	be 	dismissed.
Representation Other 	than by 	the 	Exclusive 	Representative 	or 	Self
Neither Board decision cited 	in your 	charge 	is 	directly on point
to 	the 	issue presented here. 	Mount 	Diablo 	I 	focused on whether
an employee, 	in a unit 	exclusively represented by one 	employee
organization, 	could be 	represented 	in a grievance by a
representative 	of 	a different 	employee 	organization. 	All 	three
Board Members 	agreed 	in 	that 	case 	that 	an 	employee's 	right 	to
self-representation 	did not 	extend 	to 	representation by a
competing employee 	organization. 	While 	one 	Board Member's
concurring opinion 	touches 	on 	the 	issue presented by your 	charge,
the majority in Mount 	Diablo 	I 	did not 	address 	it.
As 	noted 	in the 	discussion above, 	Mount 	Diablo 	II 	addressed the
right 	of 	self-representation at 	the 	arbitration 	stage, 	and the
Board 	rejected 	the 	claimed violation based 	on 	the 	plain 	language
of 	EERA section 3543.
In Chaffey Joint Union High School 	District 	(1982) 	PERB Decision
No. 	202 	(Chaffey), 	the Board addressed the 	issue of EERA section
3543's 	meaning under 	facts 	much 	like 	those 	presented 	in the
instant 	case. 	In that 	case, 	the employer and exclusive
representative 	had 	included 	in 	the 	collective 	bargaining
agreement 	the 	following provision:
The 	grievant 	has 	the 	right 	to be 	represented
by 	one 	authorized 	representative 	selected by
the 	[exclusive 	representative] 	at 	any
personal 	conference 	or 	formal 	hearing
requested by the grievant, 	as provided
herein, 	beyond the 	informal 	level.
When 	an 	affected 	employee 	sought 	grievance 	representation by 	a
person not 	authorized by the 	exclusive 	representative, 	and 	the
employer 	refused to process 	the 	grievance, 	a dispute much 	like
yours 	was 	presented 	for 	adjudication before 	the 	Board.
The 	hearing 	officer 	found 	for 	the 	charging party under 	the 	theory
that 	an 	individual 	has 	an 	indefeasible 	right
under 	[EERA] 	to be 	represented during a
negotiated 	grievance 	proceeding 	by 	a
representative 	of 	the 	employee's 	choice 	so
long as 	that person 	is not 	an agent 	of 	an

employee 	organization 	other 	than 	the
exclusive 	representative. 	[Chaffey at 	p.l.]
Warning 	Letter
SA-CO-385
April 4, 	1997
Page 6
The 	Board 	reversed 	the 	hearing 	officer 	and dismissed 	the 	charge
in Chaffey, 	observing in pertinent part 	that:
The proviso of 	section 	3543 	makes 	it 	clear
that 	the 	exclusive 	representative 	has 	the
duty to protect 	its 	authority as 	sole party
empowered 	to negotiate 	for 	the 	employees 	of
the 	unit 	on all 	matters 	of 	employment
relations. 	The 	negotiated agreement 	in the
Chaffey District 	does 	nothing 	to 	the
contrary, 	other than adjusting 	the 	time 	frame
for 	intervention.
In United Teachers Los Angeles 	(Bracey) 	(1987) 	PERB Decision No.
616, 	the Board dismissed a charge based, 	in part, 	on a finding
that 	an 	exclusive 	representative 	does 	not 	breach the 	duty of 	fair
representation by 	refusing 	to provide 	an 	employee 	with 	the
representative or counsel 	of her choice. 	However, 	Valley of 	the
Moon Teachers Association, 	CTA/NEA 	(McClure) 	(1996) 	PERB Decision
No. 	1165 	(Valley 	of the Moon). 	held:
[T]he 	Board has 	never held that 	the 	EERA
entitles 	an 	exclusive 	representative 	to
interfere with a member's 	selection of
private counsel. 	In fact, 	every public
school 	employee 	has 	the 	right 	to present
grievances 	to 	the public 	school 	employer
without 	the 	intervention of 	the 	exclusive
representative.
In Valley of 	the 	Moon 	the 	charging party alleged that 	the
exclusive 	representative 	failed 	to 	adequately 	represent 	her 	and
refused 	to provide 	information 	to 	an outside 	counsel 	she 	retained
both for contractual 	and non-contractual 	issues. 	These 	facts 	are
sufficiently different 	from 	those 	in 	the 	instant 	case 	and 	Chaffey
to warrant 	continued reliance 	on Chaffey, 	particularly as 	the
Board did not 	specifically reverse 	Chaffey. 	In addition, 	the
result 	in Valley of 	the 	Moon does 	not 	rely on 	the 	above-quoted
statement 	and 	the 	quoted 	language 	can 	therefore 	be 	considered
dictum.
Based on 	the 	foregoing analysis 	of 	relevant 	Board decisions,
especially Chaffey. 	I 	find the 	Federation's 	agreement 	to 	contract
language 	which denies 	employees 	the 	right 	to have 	a
representative 	of 	the 	employee's 	choice 	in grievance meetings

fails 	to 	state 	a prima 	facie violation and 	this 	element 	of 	the
charge must 	also be 	dismissed.
Warning 	Letter
SA-CO-385
April 4, 	1997
Page 	7
Conclusion
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 April 	14, 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
Les 	Chisholm
Regional 	Director