Los Rios Community College District (PERB 0875E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANK 	BAKER,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1387
PERB Decision No. 	875
May 14, 	1991
LANCE 	BERNATH,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1388
WILLIAM 	BROWN,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1389
JOHN 	DARLING,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1390
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ANNETTE 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1391
WILLIAM 	DIONISIO,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1392
DOUGLAS 	GARDNER,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1393
ALFRED J. 	GUETLING,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1394
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ELENE HOLMES,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1395
DONALD 	KENT,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1396
BILL K. 	MONROE,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1397
RYAN 	POLSTRA,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1398
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ROBERT PROAPS,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1399
MINA 	MAY ROBBINS,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1400
ELMER SANDERS,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1401
DEL 	WILSON,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1402
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GLOYD 	ZELLER,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
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Appearances: 	Frank Baker, 	Lance Bernath, 	William Brown, 	John
Darling, 	Annette Deglow, 	William Dionisio, 	Douglas Gardner,
Alfred J. 	Guetling, 	Elene Holmes, 	Donald Kent, 	Bill K. 	Monroe,
Ryan Polstra, 	Robert Proaps, 	Mina May Robbins, 	Elmer Sanders, 	Del
Wilson, 	Gloyd Zeller, 	on their own behalf; 	Susanne M. 	Shelley,
General 	Counsel 	for Los 	Rios 	Community College 	District.
Before Hesse, 	Chairperson, 	Shank and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case comes before the Public
Employment Relations 	Board 	(Board) 	on appeal by Frank Baker,
Lance Bernath, 	William Brown, 	John Darling, 	Annette Deglow,
William Dionisio, 	Douglas Gardner, 	Alfred J. 	Guetling,
Elene Holmes, 	Donald Kent, 	Bill K. 	Monroe, 	Ryan Polstra,
Robert Proaps, 	Mina May Robbins, 	Elmer Sanders, 	Del Wilson and
Gloyd 	Zeller 	(Charging Parties) 	of 	the dismissals 	of 	their
separate 	charges 	alleging 	that 	the 	Los 	Rios 	Community College
District 	(District) 	violated the 	Educational 	Employment 	Relations
Act 	(EERA) 	section 	3543.5(a) 	by 	excluding them 	from 	eligibility
EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
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for a 20 year longevity, 	4 percent 	salary bonus 	step, 	when the
District 	negotiated 	the 	current 	collective 	bargaining 	agreement
with 	the 	Los 	Rios 	College 	Federation of 	Teachers/CFT/AFT
(Federation).
The Charging Parties 	urge 	consolidation of 	their 	17 	separate
charges 	in this 	single appeal. 	Because the allegations 	in the
charges 	are 	identical, 	and the Charging Parties 	are 	similarly
situated, 	the Board finds 	consolidation to be appropriate.2 (See
Chaffey Joint Union High School 	District 	(1988) 	PERB Decision
No. 	669.) 	Accordingly, 	this decision constitutes the Board's
resolution of 	each of 	the 	charges 	listed above.
We have reviewed the dismissals 	and, 	finding them to be 	free
of prejudicial 	error, 	adopt the 	factual 	summaries 	and the
analyses as 	the decision of the Board itself. 	However, 	in the
interest 	of 	efficiency, 	the warning and dismissal 	letters 	issued
in each case will not be attached here, 	but relevant portions 	of
these 	are 	summarized below.
(a) 	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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
2We 	note also that 	the warning and dismissal 	letters 	issued
in each 	case were 	substantially 	identical.
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FACTUAL 	ALLEGATIONS
The Charging Parties 	are 	17 	regular part-time 	tenured
instructors hired before November 8, 	1967 	(pre-67 	instructors) 	by
the District. 	The Federation is 	the 	exclusive bargaining
representative 	for 	the 	certificated bargaining unit 	of which 	the
Charging Parties 	are members. 	The 	District 	and Federation are
parties 	to 	a 	collective bargaining agreement 	effective 	July 	1,
1990 to July 30, 	1993.
On or about December 	5, 	1990, 	each charging party 	filed an
unfair practice charge. 	In their unfair practice charges, 	the
Charging Parties 	allege 	that 	the 	Federation refused 	to 	represent
their 	interests 	within 	the 	designated 	bargaining 	unit with 	regard
to 	the 	salary provisions. 	The 	Charging Parties 	allege 	that 	the
District 	and 	the 	Federation 	engaged 	in discriminatory 	acts
towards 	the Charging Parties. 	During the 	1985-86 	school year,
the 	District 	and 	Federation modified 	the 	regular 	salary 	schedule
by adding a 	"Step 	20" 	to 	the 	regular 	salary 	schedule which
provided a 	4 percent bonus. 	Charging Parties 	allege that the
District's 	and Federation's 	position at 	that time was 	to 	exclude
the pre-67 	instructors 	from eligibility 	for this 	4 percent bonus.
In May 	1990, 	Charging Parties 	allege they notified the 	Federation
in writing of 	this 	highly discriminatory provision 	of 	the 	salary
schedule which 	excluded the pre-67 	instructors 	from the 	4 	percent
bonus. 	Charging Parties 	allege 	they requested the 	Federation to
take 	immediate 	action to 	correct 	this 	highly discriminatory
provision of 	the 	salary 	schedule 	in the 	upcoming 	1990-93
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contract. 	As 	the District 	is 	the third 	largest 	in the 	State 	of
California and has 	revenues 	in excess 	of 	$100 	million, 	Charging
Parties 	allege there 	is 	no rational basis 	for denying the 	4
percent bonus 	to the Charging Parties.
Further, 	Charging Parties 	allege there 	is 	absolutely no
justifiable 	reason 	for 	the 	Federation to 	support 	such
discrimination against 	Charging 	Parties 	and 	the 	District 	should
not 	have 	participated 	in 	such 	discrimination by 	including 	the
inequitable 	salary provision 	in the 	collective 	bargaining
agreement. 	Charging Parties 	allege the District's 	and
Federation's 	negotiated 	salary provision 	in the 	1990-93
collective 	bargaining 	agreement 	denies 	"equality 	to 	certificated
employees without 	rational 	and honest 	reasoning." 	By 	entering
into 	the 	new collective bargaining 	agreement, 	the 	District has
participated 	in 	establishing 	a 	highly 	discriminatory 	salary
provision. 	Charging Parties 	allege 	that 	the District's 	actions
must be 	classified as arbitrary, 	capricious, 	discriminatory and
without 	rational 	and honest 	judgment. 	Charging Parties 	assert
this 	conduct 	constitutes 	an unfair practice 	in violation of 	EERA
and 	requests 	the 	Board 	order 	the 	District 	and 	Federation to
extend the 	4 percent bonus 	to all pre-67 	instructors with 	20
years 	of 	employment with the District.
In 	response 	to 	receiving warning 	letters 	from the 	two 	Board
agents, 	each 	charging party 	filed an amended unfair practice
charge on or about January 24, 	1991. 	In their amended unfair
practice 	charges, 	Charging Parties 	included additional 	background
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information. 	In 	1977, 	as a result of the court decision in
Deglow v. 	Board of Trustees 	(1977) 	69 Cal.App.3d 459, 	tenure
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status was 	granted to approximately 	33 pre-67 	instructors.
However, 	the District 	still maintained two 	separate 	salary
structures; 	one 	for regular 	instructor and one 	for part-time
evening and 	summer 	school 	instructors. 	Subsequently, 	in the
1980-81 	academic 	year, 	the 	now tenured part-time 	instructors were
placed on the regular instructors' 	salary 	schedule at 	step 	1.
The 	collective 	bargaining 	agreement 	in 	existence 	at 	that 	time
between 	the 	District 	and Federation was 	amended 	to provide 	for
step placement 	service 	credit 	for part-time 	instructors 	based 	on
the completion of 	each 	30 	instructional 	formula hours.
In 	1985, 	the District and Federation added a 	"Step 20" 	to
the regular 	salary 	schedule, 	which provided a 	4 percent 	longevity
step bonus 	after 	"20 	years 	of 	full 	time 	tenure-track 	service 	in
[the District]." 	Because 	15 of the 	11 pre-67 	instructors
objected 	to 	their placement 	on the 	salary 	schedule 	by 	the
District,3 these 	instructors 	began 	"administrative type"
proceedings 	to 	secure a 	correction of 	their placement 	on the
salary 	schedule. 	In November 	1988, 	one of the charging parties,
Lance 	Bernath, 	was 	notified by the Federation that 	it would 	not
proceed on his 	behalf 	in this 	action, 	as 	it believed his
placement 	on the 	salary 	schedule 	did 	not 	constitute 	a 	contract
33Two of 	the pre-67 	instructors, 	Annette Deglow and Donald
Kent, 	were not placed at 	step 	1 	on the 	salary 	scheduled, 	but were
placed 	on the 	maximum 	salary 	step. 	The 	Charging 	Parties 	state
this discrepancy was, 	"primarily as 	a result of the Los 	Rios
Teachers 	Association 	litigation."
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violation. 	By letter dated December 4, 	1989, 	the Federation
notified 	each of 	the 	remaining 	charging parties 	that 	no 	cause
existed 	for 	their action.
On December 6, 	1989, 	subsequent to a presentation made to
the 	Sacramento County Board 	of 	Education on behalf 	of 	the pre-67
instructors 	that urged 	the 	Board 	to 	take 	action 	for proper,salary-
placement, 	the Federation reversed 	its 	previous position on this
matter. 	The 	Federation 	indicated 	it would 	file 	a 	grievance
against 	the 	District 	seeking proper 	salary placement 	for 	the pre-
67 	instructors. 	In March 	1990, 	subsequent to negotiations, 	the
District 	and Federation reached 	a 	settlement 	in this 	matter.
Pursuant 	to the 	settlement, 	each pre-67 	instructor was placed on
the 	maximum 	step 	of 	their 	salary 	classification and was 	awarded
three years 	of back salary, 	including 	interest.
By letter dated May 29, 	1990, 	the Federation advised the
pre-67 	instructors 	that 	it would not attempt 	to 	include 	a
provision 	in the 	current 	collective bargaining 	agreement 	for 	the
1990-93 	period 	to 	correct 	the 	alleged 	inequity 	and 	discriminatory
aspect of the 	4 percent bonus 	for 20 years of 	service.
Charging 	Parties 	next 	allege 	that based upon past 	conduct 	by
the 	Federation, 	it was appropriate to wait until the collective
bargaining 	agreement was 	finally 	consummated before 	any 	time
limitation period would begin to run. 	As 	the 	District 	and
Federation 	could have 	corrected 	the 	contract provision at 	any-
time prior to the contracts' 	execution on June 	6, 	1990, 	Charging
Parties 	submit that June 	6, 	1990 	is 	the earliest date which
10

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should be applicable to the unfair practice 	charge. 	Charging
Parties 	allege that the 4 percent bonus, 	which discriminates
against 	Charging Parties:
. 	. 	. 	appears to be the result of an
invidious 	classification 	scheme, 	and without
any 	apparent 	reasonable 	rational
justification 	set 	forth by 	either 	the
Federation or District, 	the provision 	should
be 	set 	aside 	in regard to 	its 	application to
the 	undersigned 	and 	other part-time 	tenured
certificated 	instructors.
Charging Parties' 	Appeal
In their appeal, 	Charging Parties 	except 	to 	certain 	factual
omissions 	by 	the Board agents. 	The Board agents 	are 	not 	required
to 	include every 	factual 	allegation in their 	summaries. 	As 	the
Board finds 	the Board agents' 	summaries 	are accurate, 	these
alleged 	factual 	omissions 	are 	nonprejudicial 	and without 	merit.
As 	to the 	legal 	exceptions, 	Charging Parties 	assert that
Novato Unified School District 	(1982) 	PERB Decision No. 	210 	is
irrelevant. 	Charging Parties 	state 	they are uncertain as 	to what
type 	of 	activity the Board agents 	are referring to when they
indicated there was 	no 	evidence 	of protected activity.
After 	the 	District 	filed 	its 	Statement 	in Opposition to
Charging Parties' 	Appeal of Dismissal, 	Charging Parties 	submitted
additional 	and 	supplemental 	statements 	in opposition to 	the
District's 	statement. 	As 	PERB Regulation 326354 only provides
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4PERB 	Regulations 	are 	codified at California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32635 states:
(a) 	Within 20 days 	of the date of 	service of
a dismissal, 	the 	charging party may appeal

for 	the 	filing of 	an appeal 	and a 	statement 	in opposition to 	an
appeal, 	the Board did not consider Charging Parties' 	additional
and 	supplemental 	statements 	in reaching 	its 	decision.
THE BOARD AGENTS' 	DISMISSALS
In 	analyzing 	the 	original 	and 	amended unfair practice
charges, 	the Board agents properly cite to Novato 	School
District. 	supra. 	PERB Decision No. 	210, 	wherein the Board set
forth the test 	for discrimination and retaliation. 	Specifically,
the 	Board agents 	state:
the dismissal to the Board itself. 	The
original 	appeal 	and 	five 	copies 	shall 	be
filed 	in writing with the 	Board 	itself 	in 	the
headquarters 	office, 	and 	shall be 	signed by
the 	charging party or 	its 	agent. 	Except as
provided 	in section 	32162, 	service and proof
of 	service of 	the appeal 	on the 	respondent
pursuant 	to 	section 	32140 	are 	required.
The appeal 	shall:
(1) 	State the specific 	issues of procedure, 	fact,
law or rationale to which the appeal 	is 	taken;
(2) 	Identify the page or part of the dismissal 	to
which each appeal 	is 	taken;
(3) 	State the grounds 	for each 	issue 	stated.
(b) 	Unless good cause is 	shown, 	a charging
party may not present 	on appeal 	new charge
allegations 	or new 	supporting 	evidence.
(c) 	If the charging party files a timely
appeal of the refusal, 	any other party may
file with 	the 	Board 	itself 	an original 	and
five copies of 	a 	statement 	in opposition
within 20 	days 	following the date 	of 	service
of the appeal. 	Service and proof of 	service
of 	the 	statement pursuant 	to 	section 	32140
are 	required.
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In Novato Unified School 	District 	(1982) 	PERB
Decision No. 	210, 	the Board set forth the
test 	for discrimination and retaliation. 	In
order to establish a prima 	facie case, 	the
charging party must prove 	(1) 	the employee
engaged in protected activity, 	(2) 	the
employer had 	knowledge 	of 	such protected
activity, 	(3) 	adverse action was taken
against the employee as 	a result of 	such
activity, 	and 	(4) 	that the employer's actions
were based on an unlawful motive or 	"nexus."
In the 	instant case, 	there are no 	facts which
indicate 	that the 	employer was 	aware 	of 	any
protected activity 	in which 	you were 	engaged.
Further, 	there are no 	facts 	showing that the
employer was motivated, 	in collective
bargaining, 	by an unlawful motive.
Accordingly, 	your charge must be dismissed.
As 	to 	the background 	information 	submitted 	in the 	amended
unfair practice charges, 	the Board agents 	merely 	state 	that 	the
background 	information 	fails 	to 	correct 	the deficiencies 	of 	the
original 	unfair practice 	charges. 	Although the unfair practice
charges 	assert that the 	District discriminated against 	Charging
Parties 	by agreeing with the 	exclusive 	representative 	to 	a
certain provision 	in the 	current 	collective 	bargaining 	agreement,
Charging 	Parties 	have 	failed 	to present 	any 	facts 	which would
establish that 	they 	engaged 	in protected 	activities.
Furthermore, 	even assuming Charging Parties 	had 	engaged 	in
protected activity, 	Charging Parties 	have 	failed to provide 	any
information that 	the 	District had knowledge 	of protected
activity, 	or that the District took its 	actions 	as 	a result of
such activity. 	In addition, 	Charging Parties 	have not provided
any 	facts 	to 	indicate that 	the 	District had an unlawful 	motive 	in
agreeing to 	the 	salary provision 	in the 	collective bargaining
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agreement. 	Accordingly, 	the 	Board agents properly dismissed 	the
amended unfair practice 	charges.5
The Board 	agrees with the 	analysis 	and 	conclusions 	expressed
by the Board agents 	concerning these charges. 	Accordingly, 	the
unfair practice 	charges 	in Case Nos. 	S-CE-1387 	through S-CE-1403
are hereby DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Shank and Carlyle 	joined 	in this 	Decision.
5The Board agents 	also 	note 	that 	the 	unfair practice 	charge
forms mention EERA sections 	3543.5, 	3543.5(a) 	and 3543.6. 	In
their warning 	letters, 	the 	Board agents 	informed 	the Charging
Parties 	that any 	allegation of 	a 	section 	3543.6 	violation would
need to be 	filed 	in a 	separate 	charge against 	the 	employee
organization. 	With regard to 	the 	general 	reference 	to 	section
3543.5, 	the Board agents assumed the Charging Parties'
discrimination allegations 	referred 	to 	a 	violation of 	section
3543.5(a).
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