Los Rios College Federation of Teachers (Deglow) (PERB 1349E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW, )

Charging Party, ) Case No. SA-CO-420
)
Vv. ) PERB Decision No. 1349
)
LOS RIOS COLLEGE FEDERATION OF ) September 29, 1999

TEACHERS/CFT/AFT/LOCAL 2279,

Respondent.

— WLS

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

IFERA. 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.

failed 	to 	challenge 	the 	Los 	Rios 	Community College District's
(District) 	decision to evaluate her during the Spring of 	1998.
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.
(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.
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-420 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
. . . .
33

STATE OF CALIFORNIA 	( 	GRAY DAVIS, Governor
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-420
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 	failed 	to 	challenge 	the 	Los 	Rios 	Community College
District's 	(District) 	decision to 	evaluate 	charging party during
the 	Spring of 	1998.
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. 	At your request, 	I
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 the
Federation have 	accepted your work-related disability, 	to
reiterate 	that 	the 	issues 	identified 	in your Fall 	1997 	evaluation
were 	issues 	of 	academic 	freedom and 	that 	your 	subsequent
reevaluation 	in the 	Spring of 	1998 	was 	a 	clear violation of 	the
collective bargaining agreement 	(CBA) 	between the District 	and
the 	Federation, 	to 	demonstrate 	a connection between your
protected 	activity 	and the 	Federation's 	decision not 	to 	represent
you, 	and to update 	the 	record- 1 . .
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
of 	her employment. 	The 	charge 	asserts 	that 	both 	the 	District 	and

SA-CO-420
Dismissal 	Letter
Page 2
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.
In the 	Fall 	of 	1997, 	the District 	completed an evaluation of
charging party's 	performance. 	That 	evaluation gave 	charging
party an overall 	rating of 	"Needs 	Improvement." 	In addition, 	the
evaluation committee 	recommended 	that 	the 	District 	not 	assign
charging party to 	teach Math 	52 	until 	her depth of 	knowledge 	of
geometry 	could be 	documented. 	The 	evaluation 	team 	recommended
reevaluation in one year. 	In April 	of 	1998, 	the Federation filed
a 	grievance 	challenging 	the 	Fall 	1997 	evaluation on behalf 	of
charging 	party.
In February of 	1998, 	the District 	informed charging party that 	it
intended to 	reevaluate her during 	the 	Spring of 	1998. 	On
February 26, 	1998, 	the Federation informed charging party that 	it
had asked the District 	to 	forego 	the 	Spring 	1998 	evaluation. 	On
March 	19 	and 24, 	1998, 	the District 	informed 	charging party that
it 	intended 	to 	evaluate 	her during 	the 	Spring 	semester unless 	she
had decided to 	forego 	the 	evaluation. 	Charging party responded
to 	both District 	memoranda but 	did not 	elect 	to 	forego 	the
evaluation.
The District 	evaluated charging party on March 23, 	March 25, 	and
April 	15, 	1998. 	In a letter dated April 	17, 	1998, 	charging party
sent 	the 	Federation draft 	grievances 	challenging 	the 	evaluations.
In a letter dated April 	20, 	1998, 	the 	Federation informed
charging party 	that 	it 	would not 	challenge 	the 	evaluations
because 	the 	District 	had given charging party 	the 	option not 	to
submit 	to the 	evaluations 	in Spring 	1998. 	Since 	the 	evaluations
were voluntary, 	the 	Federation 	indicated that 	it 	did not 	believe
the grievances were appropriate. 	In addition, 	the Federation
indicated that 	the grievances were not 	appropriate because 	the
Spring 	1998 	evaluations 	had not 	resulted 	in any harm to 	charging
party.
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.) 	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.)
! 	(

SA-CO-420
Dismissal 	Letter
Page 3
The 	charge 	contends 	that 	the 	Spring 	1998 	evaluation was 	a 	clear
violation, 	misapplication, 	or misinterpretation of 	the 	terms of
the 	CBA and 	that 	the 	Federation's 	failure 	to 	represent 	charging
party 	in grieving 	that 	violation 	amounted 	to 	an 	arbitrary and bad
faith 	aiding 	and 	abetting 	the 	District's 	improper 	conduct.
Nothing 	in 	the 	charge 	demonstrates 	that 	the 	Federation's 	actions
were without 	a 	rational 	basis.
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 	represent 	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 	initial 	and 	amended 	charges
"clearly outline 	acts 	of 	disparate 	treatment, 	departure 	from
established procedures 	and 	standards, 	inconsistent 	or
contradictory justifications 	for actions 	taken, 	cursory/no
investigation, 	failure 	to offer justification 	for actions 	taken
or 	the offering of 	exaggerated, 	vague 	or ambiguous 	reasons."
This 	assertion appears 	to 	refer primarily to 	the 	allegations
considered and rejected 	in the 	attached warning 	letter. 	However,
charging party also alleges 	that 	there 	is 	"a 	clear correlation
between" 	the 	Federation's 	decision not 	to 	represent 	her 	and a
PERB complaint 	issued against 	the Federation on March 18, 	1998.
Temporal 	proximity 	is 	certainly 	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 	alleged 	change 	in the 	Federation's 	attitude 	also
coincided with 	the 	District's 	indication 	that 	charging party
could 	forego 	the 	Spring 	1998 	evaluation 	if 	she 	chose 	to do 	so.
Accordingly, 	this 	allegation is dismissed.

SA-CO-420
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
caused or attempted to 	cause 	the District 	to violate 	the 	EERA.
(American Federation of 	State, 	County and Municipal 	Employees
(Waters) 	(1988) 	PERB Decision No. 	697-H; 	California School
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, 	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 	contained herein 	and 	in my May 	19,
1999 	letter, 	the charge 	is dismissed.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to the Board itself within twenty 	(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
------------- ---- -- - 	--
I

SA-CO-420
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 	(2 0) 	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-420
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

STATE 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-420 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
26, 	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 failed to challenge the Los Rios Community
College District's 	(District) 	decision to evaluate charging party
during the Spring of 1998. 	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 the 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.

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 7 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.
In a letter dated February 23, 	1998, 	the District informed
charging party that 	she was 	scheduled for re-evaluation during
the Spring 1998 	semester. 	Charging party forwarded a copy of 	the
letter to the Federation. 	In a letter dated February 26, 	1998,
the 	Federation advised DeGlow that 	they had asked the District 	to
suspend the Spring 1998 	re-evaluation.
In memoranda dated March 19 and 24, 	1998, 	the District informed
charging party that, 	since she had declined to set up an
evaluation schedule for Spring 1998, 	it had scheduled evaluations
for March 23 and 30, 	1998. 	Both memoranda invited charging party
to inform the District if she chose to forego these evaluations.
Charging party responded to both memoranda but did not 	indicate
that she did not wish to be evaluated during the Spring of 1998.
The District evaluated charging party on March 23, 	March 25, 	and
April 15, 	1998. 	In a letter dated April 17, 	1998, 	charging party
sent the Federation draft grievances challenging the evaluations.
In a letter dated April 20, 	1998, 	the Federation informed
charging party 	that it would not challenge the evaluations
because the District had given charging party the option not to
submit to the evaluations in Spring 1998. 	Since the evaluations
were voluntary, 	the Federation indicated that it did not believe
the grievances were appropriate. 	In addition, 	the Federation
indicated that 	the grievances were not appropriate because the
Spring 1998 	evaluations had not 	resulted in any harm to charging
party.
(

On April 21, 	1998, 	charging party filed three grievances
challenging the Spring 1998 evaluations. 	Those grievances are
nearly identical. 	The grievances read, 	in relevant part:
"The special 	review was a product of issues
involving academic freedom. 	According to
[the District], the grievant's Challenge of
Conclusions and Procedure 	- 	Demand for
Specificity and to Particularize 	for her Fall
1997 Performance Review has been answered.
However, 	the grievant has not been provided a
copy of the team's response. 	The actions
associated with the grievant's Spring 1998
"out of sequence" 	review indicate 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 21 and 29, 	1998, 	charging party reiterated her request
that the Federation represent her in grieving the Spring 1998
evaluations. 	In a letter dated April 30, 	1998, 	the Federation
sent charging party a letter confirming its decision not to
represent her in pursuing these grievances.
On or about May 1, 	charging party phoned Federation vice
president Linda Stroh in an attempt to procure representation for
these grievances. 	Stroh advised charging party of that the
Federation Executive Board had directed its 	Executive Director
not to represent charging party for these grievances. 	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 challenging the Spring 1998 evaluations. 	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
challenging the Spring 1998 	evaluations. 	Charging party cites
two bases for this contention. 	First, 	charging party contends
that 	the Spring 1998 	evaluations did not 	comply with the letter
or spirit of 	the CBA and that the Federation's decision not 	to
represent her was arbitrary. 	Second, 	charging party contends
that the Federation's decision not to represent her was
discriminatory. 	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.
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 Spring 1998
evaluations was arbitrary, 	discriminatory and in bad faith.
However, 	there is no evidence that the Federation arbitrarily
ignored these grievances. 	As the Federation noted, 	charging
party had the option to forego the Spring 1998 evaluations.
While charging party's decision not to do so is understandable,
the Federation's belief 	that 	these evaluations did not violate
the collective bargaining agreement is also reasonable. 	Nothing
provided in the charge indicates that the Federation's decision
not 	to pursue grievances 	challenging the Spring 1998 	evaluations
was without a rational basis.
Charging party also alleges that the Federation's decision not 	to
challenge 	the Spring 	1998 	evaluations 	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. 	In addition, 	the
Federation's 	two-part 	rationale 	for choosing not 	to grieve the
(

Spring 1998 	evaluations does not demonstrate a shifting or
inconsistent justification. 	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. 	A finding of
disparate treatment 	is a finding that others have been treated
differently for similar or identical 	conduct or in a similar
situation. 	(See, 	e.g. Belridge School District 	(1980) 	PERB
Decision No. 	157.) 	Here, 	there is no allegation that the two
other grievances arose under similar circumstances. 	The charge
merely alleges 	that all 	three grievances 	raised the issue of
academic freedom. 	Obviously, 	two grievances may raise the same
issue and yet have very different bases. 	Further, 	the Federation
has agreed to represent 	charging party in challenging her
substandard evaluation.
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 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 the Spring
1998 evaluations.
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
hand corner of the charge form. 	The amended charge must be
served on the respondent's 	representative and the original proof
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.
Sincerely,
Charles Sakai
Board Agent