Los Rios College Federation of Teachers (Deglow) (PERB 1348E)

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STATE OP CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW, )

Charging Party, ) Case No. SA-CO-419
)
Vv. ) PERB Decision No. 1348
)
LOS RIOS COLLEGE FEDERATION OF ) September 29, 1999

TEACHERS/CFT/AFT/LOCAL 2279,

Respondent.

Mer NN

- Appearance: Annette (Barudoni) Deglow, on her own behalf.
Before Caffrey, Chairman; Dyer and Amador, Members.
| DECISION

AMADOR, Member: This case is before the Public Employment
Relations Board (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).* The charge also alleged that the
Federation interfered with her. exercise of rights under EERA

section 3543, thus violating EERA section 3543.6(b), when it

'BERA 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:

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.

refused 	to 	represent 	her 	in grieving 	the 	Los 	Rios 	Community
College District's 	(District) 	decision to assign her to 	teach
Math 51 	(Algebra). 	In addition, 	the charge alleges that 	the
Federation 	caused 	or attempted 	to 	cause 	the District 	to violate
EERA section 3543.6(a).2
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:
22

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, 	and Deglow's 	appeal
The Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-419 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
(a) 	Cause or attempt 	to cause a public
school 	employer to violate Section 3543.5.
.... . . .. .	" . . ." .
(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.
W	3

*

STATE OF CALIFORNIA 	' 	GRAY DAVIS, Governor	
C
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 25, 	1999
Annette 	(Barudoni) 	DeGlow
Re: 	Unfair Practice Charge No. 	SA-CO-419
Annette 	(Barudoni) 	DeGlow v. 	Los Rios College
Federation of 	Teachers/CFT/AFT/Local 	2279
DISMISSAL 	LETTER
Dear Ms. 	DeGlow:
The 	above-referenced unfair practice 	charge, 	filed August 	27,
1998, 	alleges 	that 	the Los Rios College 	Federation of Teachers
(Federation) 	breached 	the 	duty of 	fair 	representation guaranteed
by 	EERA 	section 	3544.9 	and 	thereby violated 	section 	3543.6(b)
when 	it 	refused 	to 	represent 	charging party 	in grieving 	the 	Los
Rios 	Community College District's 	(District) 	decision to assign
charging party to 	teach Math 51 	(Algebra).
I 	indicated to you, 	in my attached letter dated May 19, 	1999,
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 May
26, 	1999, 	the charge would be dismissed. 	I 	subsequently extended
this deadline to June 15, 	1999.
On June 	15, 	1999, 	you filed a third amended charge. 	You indicate
that 	the purpose 	of 	the 	third amended charge 	is 	to provide
additional 	documentation 	to demonstrate 	that 	the 	District 	and
Federation have 	accepted your work-related disability, 	to
reiterate" that 	the 	issues 	identified 	in 	the 	Fall 1997 "evaluation
were 	issues 	of 	academic 	freedom, 	to demonstrate 	a 	connection
between your protected 	activity and 	the 	Federation's 	decision not
to 	represent 	you, 	and to update 	the 	record regarding 	the 	damage
caused by the 	Federation's 	decision not 	to 	represent 	you. 	The
charge 	allegations 	and arguments 	are 	discussed below.
In 1984 or 1985, 	the Workers' 	Compensation Appeals Board
determined 	that 	charging party had developed vocal 	cord 	nodules
and 	sustained permanent 	damage 	as 	a 	result 	of 	and 	in 	the 	course

SA-CO-419
Dismissal 	Letter
Page 	2
of 	her employment. 	The 	charge 	asserts 	that 	both 	the 	District 	and
the 	Federation 	subsequently 	acknowledged 	the 	existence 	of 	this
work-related disability. 	In 	1991, 	the District provided charging
party with 	a 	chalk-free 	classroom outfitted with 	a 	dry 	erase
board 	and an overhead projector. 	Charging party has 	been
assigned to teach Math 52 	(Geometry) 	since at 	least 	1991.
During the week of April 	20, 	1998, 	the District 	informed charging
party 	that 	she 	had been 	assigned 	to 	teach 	Math 	51 	(Algebra)
during the Fall 	1998 	semester. 	On April 	22, 	1998, 	charging party
forwarded a 	grievance 	challenging 	this 	assignment 	to 	the
Federation. 	On April 23, 	1998, 	the Federation responded that 	it
would not 	"support 	a grievance 	alleging a 	failure 	to 	accommodate
a 	disability 	that 	has 	not 	been granted 	an 	accommodation under 	the
Americans with Disabilities Act." 	Further, 	the grievance did not
indicate 	that 	the District's 	decision to 	assign 	charging party to
teach Math 	51 	infringed on 	any 	specific 	right 	guaranteed 	by 	the
collective bargaining agreement. 	Finally, 	the Federation
concluded 	that 	the 	District's 	decision 	to 	assign 	charging party
to 	teach Math 	51 	fell 	within the District's 	contractual
prerogative 	to 	assign 	its 	employees.
Based on charging party's 	report 	that 	the District 	had made 	"no
provisions 	for visual 	or 	computer aids 	to 	allow her 	to 	restrict
the 	amount 	of vocal 	instruction 	required," 	charging party's
physician recommended that 	she 	not 	teach Math 	51 	in the 	Fall 	of
1998. 	Instead, 	charging party spent 	in excess of 	645 	hours
developing a program to teach Math 51. 	Because 	the District
declined 	to give 	her 	access 	to 	the 	equipment 	that 	she needed,
charging party had 	to 	obtain 	the 	computer 	equipment 	necessary to
produce a 	"digital 	show" 	for use 	in teaching Math 51. 	Charging
party used 	32.8 	days 	of 	sick 	leave 	in order 	to 	complete
preparations 	for 	teaching Math 	51.
The 	charge 	alleges 	that 	the 	Federation breached the 	duty of 	fair
representation 	guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby
violated 	section 3543.6(b) 	when 	it 	failed 	to represent 	charging
party's grievance 	of 	her Fall 	1998 	assignment. 	The 	duty of 	fair
representation 	imposed on 	the 	exclusive 	representative 	extends 	to
grievance handling. 	(Fremont 	Teachers Association 	(King) 	(1980)
PERB Decision No. 	12 5; 	United Teachers of Los Angeles 	(Collins)
(1982) 	PERB Decision No. 258.) 	As 	I 	explained in greater detail
in the 	attached warning 	letter, 	in order 	to 	state 	a prima 	facie
violation of 	this 	section of 	EERA, 	Charging 	Party must 	show that
the 	Federation's 	conduct was 	arbitrary, 	discriminatory, 	or 	in bad
faith. 	(Id.)
Charging party contends 	that 	her 	reassignment 	was 	a 	clear
violation of 	the 	collective 	bargaining 	agreement 	and 	that 	the
Federation's 	decision not 	to pursue 	a grievance 	challenging 	the

SA-CO-419
Dismissal 	Letter
Page 3
reassignment 	amounted to 	an 	arbitrary 	and bad 	faith 	aiding 	and
abetting 	the 	District's 	improper 	conduct. 	Charging party does
not 	provide 	any additional 	factual 	allegations 	to 	support 	this
assertion.
Charging party also 	argues 	that 	the 	original 	and 	amended unfair
practice 	charges 	demonstrate 	that 	the 	Federation 	acted 	in a
discriminatory manner when 	it 	refused to pursue 	her grievance.
In order to prevail 	on a discrimination theory, 	the 	charging
party must 	establish 	that 	the 	employee 	was 	engaged 	in protected
activity, 	that 	the 	activities were known to 	the 	employee
organization 	and 	that 	the 	employee 	organization took 	adverse
action against 	the 	employee 	because 	of 	the 	protected activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210 	at
pp. 	5-6 	(Novato).) 	The Board has 	long 	recognized that, 	because
motivation 	is 	a 	state 	of 	mind which may be 	known only to 	the
actor, 	direct proof of unlawful 	motivation is 	rarely possible.
(Carlsbad Unified School 	District 	(1979) 	PERB Decision No. 	89 at
p. 	11.) 	Accordingly, 	the Board recognizes 	the 	following
circumstantial 	indications of unlawful motivation: 	(1) 	the
proximity of 	time 	between 	the protected 	activity and 	the 	adverse
action; 	(2) 	disparate treatment of the affected employee(s); 	(3)
departure 	from established procedures; 	(4) 	inconsistent 	or
contradictory justifications 	for the 	employer's 	actions; 	and 	(5)
inadequate 	investigation. 	(Novato at p. 	7.)
Charging party 	asserts 	that 	the 	original 	and 	amended unfair
practice 	charges 	"clearly outline 	acts 	of 	disparate 	treatment,
departure 	from established procedures 	and 	standards, 	inconsistent
or 	contradictory justifications 	for actions 	taken, 	cursory
investigation, 	failure 	to offer 	justification 	for 	actions 	taken
or 	the 	offering of 	exaggerated, 	vague 	or 	ambiguous 	reasons 	and a
host 	of 	other 	facts 	all 	demonstrating unlawful 	motive." 	This
assertion appears 	to 	refer 	in 	large part 	to 	allegations 	already
considered and rejected 	in the 	attached warning 	letter. 	However,
charging party also 	alleges 	that 	the 	Federation's 	decision not 	to
represent 	her 	occurred because 	PERB 	issued 	a 	complaint 	on 	an
unrelated charge during March of 	1998. 	Temporal 	proximity 	is
certainly an 	indication of 	unlawful 	motive. 	(Moreland Elementary
School District 	(1982) 	PERB Decision No. 	227 at 	13.) 	Timing
alone, 	however, 	is not 	sufficient 	to create 	the requisite nexus
between 	charging party's 	protected 	activities 	and the
Federation's 	decision not 	to 	represent 	her grievance. 	(Id.)
Further, 	the 	charge 	fails 	to point 	to any evidence of 	a change 	in
the 	Federation's attitude at 	that 	time. 	In fact, 	the Federation
agreed 	to 	represent 	charging party 	in grieving her 	Fall 	1997
evaluation in April 	of 	1998. 	Accordingly, 	this allegation is
dismissed.
(

SA-CO-419
Dismissal 	Letter
Page 	4
Finally, 	the 	amended charge 	alleges 	that 	the 	Federation's 	failure
to 	represent 	charging party 	in her grievance 	either 	caused 	or was
an 	attempt 	to 	cause 	the District 	to violate 	the 	EERA. 	In order
to 	state a violation of EERA section 3543.6 (a), 	a charge must
allege 	facts 	demonstrating how and 	in what 	manner 	the 	Federation
cause
-----------
d or attempted 	to 	cause 	the District 	to violate 	the 	EERA.
(American Federation of 	State, 	County----and Municipa
--l 	Employees
(Waters) 	(1988) 	PERB Decision No. 	697-H; 	California Schoo- l-
Employees Association 	(Kotch) 	(1992) 	PERB Decision No. 	953.)
The 	charge 	does 	not 	provide 	facts 	which demonstrate 	how or 	in
what 	manner 	the 	Federation 	caused or 	attempted 	to 	cause 	the
District 	to 	discriminate 	or 	retaliate 	against 	charging party.
Further, 	the 	charge provides 	no 	support 	for the 	interesting
proposition that 	the 	failure 	to 	file 	a grievance 	could actually
be 	the 	cause 	of 	the 	allegedly grievable 	conduct. 	PERB 	case 	law,
including those 	cases 	noted above, 	appear 	to 	indicate 	that 	a
union must 	take 	affirmative 	actions 	in 	its 	attempt 	to 	cause 	an
employer to violate 	the 	EERA. 	The 	facts 	alleged in the 	charge
fail 	to 	demonstrate 	that 	the 	Federation 	affirmatively caused or
attempted 	to 	cause 	the 	District 	to 	discriminate 	against 	you.
Without 	some 	allegation 	that 	the Association's 	conduct 	actually
caused the District's 	allegedly unlawful 	action, 	the 	charge 	fails
to 	state a prima 	facie cause of action. 	Accordingly, 	this
allegation 	is 	dismissed as well.
Based on 	the 	facts 	and 	reasons 	stated above 	and 	those 	in my May
19, 	1999 letter, 	I 	am dismissing the charge.
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 	(2 0) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain
the 	case name and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of business 	(5 	p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express United 	States mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 8, 	sec. 	32135 (a); see also Cal. Code Regs., tit. 8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of business 	on the 	last 	day 	for
(

SA-CO-419
Dismissal 	Letter
Page 5
filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)
(

SA-CO-419
Dismissal 	Letter
Page 	6
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 Charles 	Sakai
Board 	Agent
Attachment
cc: 	Robert Perrone

S T A T E OF CALIFORNIA 	, 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 19, 	1999
Annette 	(Barudoni) 	DeGlow
Re: 	Unfair Practice Charge No. 	SA-CO-419 2nd Amended Charge
Annette 	(Barudoni) 	DeGlow v. 	Los Rios College
Federation of Teachers/CFT/AFT/Local 2279
WARNING LETTER
Dear Ms. DeGlow:
You filed the above-referenced unfair practice charge on August
27, 	1998. 	Since that time, 	you have amended the charge twice and
we have discussed the charge allegations on a number of
occasions, 	both in person and over the telephone. 	As amended,
the charge alleges that the Los Rios College Federation of
Teachers 	(Federation) 	breached the duty of 	fair representation
guaranteed by EERA section 3544.9 	and thereby violated section
3543.6(b) 	when it refused to represent charging party in grieving
the Los Rios Community College District's 	(District) 	decision to
assign charging party to teach Math 51 	(Algebra). 	The charge
alleges the following facts.
The District 	is a public school employer within the meaning of
the Educational Employment Relations Act 	(EERA). 	Charging party
is an employee within the meaning of the EERA. 	The Federation is
an employee organization within the meaning of the EERA and the
exclusive representative of the bargaining unit that 	includes
charging party. 	The District and the Federation are parties to a
collective bargaining agreement 	(CBA) 	effective from July 1, 	1996
through June 30, 	1999.
Over the past several years, 	charging party has vigorously
pursued her rights under the EERA in a number of unfair practice
charges and grievances 	filed against both the District and the
Federation. 	Both the District and the Federation were aware of
charging party's exercise of her protected rights.
In 1982, 	charging party was diagnosed with vocal cord nodules.
Charging party received speech therapy and a voice box to assist
her during lecture. 	In 1988, 	charging party experienced a
recurrence of symptoms. 	In 1991, 	the District responded to this
recurrence of 	symptoms by moving charging party to a chalk-free
classroom, 	and providing her with a dry erase board and an
overhead projector. 	Charging party has taught Math 52 	(geometry)
since at least 1991.
•

In the Fall of 1994, 	District evaluators gave charging party a
substandard evaluation. 	The Federation represented charging
party in a grievance challenging the substandard evaluation. 	The
District 	subsequently reevaluated charging party and determined
that her performance was 	satisfactory. 	The 	Federation withdrew
the grievance over charging party's objection.
In the fall of the 1997-98 school year, 	the District performed
another evaluation of charging party. 	The District rated
charging party "Needs Improvement" 	in seven out of 17 categories,
and rated charging party 	"Needs Improvement" 	overall. 	In
addition, 	the evaluation committee recommended that charging
party not be assigned to teach Math 52 again until her depth of
knowledge of geometry could be documented. 	On or about January
28, 	1998, 	charging party filed a "Challenge of Conclusions and
Procedure Demand for Specificity and to Particularize."
On February 17, 	1998, 	charging party filed a series of grievances
challenging the 1997 evaluation. 	That same day, 	charging party
requested that 	the Federation represent her in pursuing those
grievances. 	The parties then exchanged a series of approximately
thirty letters 	regarding charging party's grievances. 	On April
7, 	1998, 	the Federation agreed to represent charging party in
challenging the unfavorable evaluation. 	The Federation
consolidated charging party's grievances 	into grievance 4-S98.
During the week of April 20, 	1998, 	the District advised charging
party that she had been assigned to teach Math 51 	(algebra) 	in
the fall 1998 semester. 	On April 22, 	1998, 	charging party mailed
the Federation a grievance challenging her assignment 	to teach
Math 51 	(grievance 41-S98). 	Grievance 41-S98 provided, 	in
relevant part:
"The grievant's Fall 	1998 	instructional
assignment 	fails to accommodate her
disability and ignores her rights as a
regular instructor. 	The assignment indicates
that the grievant's academic rights are being
violated and the grievant 	is being
discriminated against based on her political
activities and her physical disability."
On April 23, 	1998, 	the Federation sent charging party a letter
refusing to represent her in pursuing grievance 41-S98. 	The
Federation indicated that 	it would not 	"support a grievance
alleging a failure to accommodate a disability that has not been
granted an accommodation under the Americans with Disabilities
Act." 	Further, 	the grievance did not indicate that the District's
decision to assign charging party to teach Math 51 	infringed on
any specific right guaranteed by the CBA. 	Finally, 	the
Federation concluded that 	the District's decision to assign
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charging party to teach Math 51 	fell within the District's
contractual prerogative to assign its employees.
On or about April 29, 	charging party reiterated her request 	for
representation, 	and amended grievance 41-S98. 	In a letter dated
April 30, 	the Federation confirmed its decision not to represent
charging party in grievance 41-S98.
On or about May 1, 	charging party phoned Federation vice
president Linda Stroh in an attempt 	to procure representation in
grievance 41-S98. 	Stroh advised charging party that the
Federation Executive Board had directed its 	Executive Director
not to represent charging party in grievance 41-S98. 	In a letter
dated May 3, 	1998, 	charging party advised the Federation that she
did not accept 	its decision not to represent her. 	In a letter
dated May 4, 	the Federation again declined to represent charging
party in grievance 41-S98. 	On May 18, 	1998, 	charging party
reiterated her request that 	the Federation represent her.
On May 22, 	1998, 	the District responded to charging party's
"Challenge of Conclusions and Procedure Demand for Specificity
and to 	Particularize." 	The District's 	response 	consisted of a
four-page memorandum expanding on the rationale 	for the
unfavorable evaluation. 	Attached to the memorandum were three
memoranda from 1995. 	One of these memoranda was signed by one of
the three individuals who evaluated charging party. 	The
memorandum was 	critical 	of 	charging party's 	lack of support 	for
the department's Math 52 	curriculum and suggested that charging
party 	"be assigned a course that agrees with her philosophy."
On May 31, 	1998, 	and again on June 8, 	charging party forwarded to
the Federation a copy of the District's response to her
"Challenge of Conclusions and Procedure Demand for Specificity
and to Particularize," 	along with a new request for
representation. 	Charging party contended that 	the District's
response evidenced a violation of her rights. 	On June 22, 	1998,
the Federation again denied charging party's request 	for
representation.
Charging party contends 	that 	the Federation breached its duty of
fair representation when it declined to represent her in
grievance 41-S98. 	Charging party cites several bases for this
contention. 	First, 	charging party contends that the Federation's
decision to represent her in 1994 	is 	incompatible with its
decision not to represent her in 1998, 	demonstrating that its
decision not to pursue grievance 41 S98 was arbitrary. 	Second,
charging party contends 	that 	the Federation's 	investigation into
whether the reassignment violated the provisions of the CBA was
perfunctory and cursory. 	Third, 	charging party contends that the
Federation's 	failure to represent her during the first three
steps of 	the grievance process was inconsistent with the CBA and
with the Federation's 	established practice.
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The 	charge alleges 	that 	the Federation breached the duty of 	fair
representation guaranteed by EERA section 3544.9 	and thereby
violated section 3543.6(b). 	The duty of fair representation
imposed on the exclusive representative extends 	to grievance
handling. 	(Fremont Teachers Association 	(King) 	(1980) 	PERB
Decision No. 	125; United Teachers of Los Angeles 	(Collins) 	(1982)
PERB Decision No. 	258.) 	In order to state a prima facie
violation of this section of EERA, 	Charging Party must show that
the Federation's conduct was arbitrary, 	discriminatory, 	or in bad
faith. 	In United Teachers of Los Angeles 	(Collins). 	the Public
employment Relations Board stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment in handling a grievance does not
constitute a breach of the union's duty.
[Citations.]
A union may exercise 	its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does
not arbitrarily ignore a meritorious grievance or process a
grievance in a perfunctory fashion. 	A union is also not required
to process an employee's grievance if the chances 	for success are
minimal.
In order to state a prima facie case of arbitrary conduct
violating the duty of 	fair representation, 	a Charging Party:
. 	must at a minimum include an
assertion of sufficient 	facts 	from which it
becomes apparent how or in what manner the
exclusive representative's action or inaction
was without a rational basis or devoid of
honest judgment. 	(Emphasis added.) 	[Reed
District Teachers Association. 	CTA/NEA
(Reyes) (1983) 	PERB Decision No. 332, p. 9,
citing Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No.
124.)
In this case, 	charging party alleges that the Federation's
decision not 	to represent her in challenging the District's
assignment to teach Algebra was arbitrary, 	discriminatory and in
bad faith. 	However, 	there is no evidence that the Federation
arbitrarily ignored grievance 41-S98. 	As the Federation noted,
the CBA provides that the District retains the right to assign
its employees. 	The charge has not demonstrated that the
District's decision to assign you to teach Math 51 instead of
Math 52 violated the CBA. Nothing provided herein indicates that
the Federation's decision not to pursue grievance 41-S98 was
without a rational basis.
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Likewise, 	the fact that the Federation represented charging
party's challenge to a substandard evaluation in 1994 does not
require it to represent charging party in grievance 41-S98. 	In
fact, 	the Federation challenged charging party's substandard
evaluation in 1997 as well.
Charging party also alleges 	that 	the Federation's decision not 	to
challenge her reassignment 	constituted discrimination in
violation of EERA section 3543.6(b). 	In analyzing allegations of
discrimination violating the duty of fair representation, 	the
Board follows the principles applicable for violations of EERA
section 3543.5(a), 	a parallel provision prohibiting employer
interference and reprisals. 	(Service Employees 	International
Union. Local 99(Kimmett) 	(1979) 	PERB Decision No. 106, at p. 	13.)
In order to prevail on a discrimination theory, 	the charging
party must establish that 	the employee was engaged in protected
activity, 	that the activities were known to the employee
organization and that 	the employee organization took adverse
action against the employee because of the protected activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210 at
pp. 	5-6 	(Novato).) 	The Board has long recognized that, 	because
motivation is a state of mind which may be known only to the
actor, 	direct proof of unlawful motivation is rarely possible.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89 at
p. 	11.) 	Accordingly, 	the Board recognizes the following
circumstantial indications of unlawful motivation: 	(1) 	the
proximity of 	time between the protected activity and the adverse
action; 	(2) disparate treatment of the affected employee(s); 	(3)
departure from established procedures; 	(4) 	inconsistent or
contradictory justifications for the employer's actions; 	and 	(5)
inadequate investigation. 	(Novato at p. 	7.)
In this case, 	charging party has engaged in substantial protected
activity. 	Further, 	the Federation was certainly aware of
charging party's protected activities. 	However, 	charging party
has 	failed to establish the requisite connection between her
protected activity and the 	Federation's decision not 	to challenge
her reassignment.
While it 	is apparent that charging party and the Federation have
sometimes been at odds, 	the facts do not demonstrate that the
Federation's 	investigation was 	inadequate or that 	the
Federation's decision to represent charging party in 1994
demonstrated a shifting or 	inconsistent 	justification 	for 	its
decision not to represent charging party in" grievance 41-S98.
Likewise, 	the Federation's decision to represent two non-disabled
teachers 	in grieving their substandard evaluations does not
indicate disparate treatment based on charging party's protected
activities, 	especially in light of the fact that the Federation
has agreed, 	in previous grievances, 	to represent charging party
in challenging her substandard evaluation as well.
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The charge does 	contend that 	the Federation deviated from its
established policies when it 	refused to represent her in the
first three levels of the grievance procedure. 	However, 	charging
party has 	failed to allege any facts demonstrating that 	the
Federation had an established practice of 	representing all
bargaining unit employees on all grievances. 	Instead, 	charging
party claims that section 13.2.1.1 of the CBA "arguably" 	gives
her the right 	to Federation representation at 	the 	first three
levels of the grievance procedure. 	Section 13.2.1.1 provides, 	in
relevant part:
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.
This provision in no way obligates the Federation to represent
unit members during the first three steps of the grievance
procedure. 	In fact, 	the CBA specifically envisions the situation
presented in this case and permits individual grievants to
proceed without Federation assistance. 	Accordingly, 	charging
party has 	failed to establish that her protected activity
motivated the Federation's decision not to challenge her
assignment to teach Math 51.
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 have the case number written on the top right
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hand corner of 	the charge form. 	The amended charge must be
served on the respondent's 	representative and the original proo
of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before May 26. 	1999 	. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
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Sincerely,
Charles Sakai
Board Agent