Los Rios College Federation of Teachers (Sander) (PERB 1111E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ELMER (JOHN) SANDER,
Charging Party, Case No. §S-CO-321
Vv. PERB Decision No. ll1ll

LOS RIOS COLLEGE FEDERATION OF
TEACHERS,

July 21, 1995

Respondent.

ALFRED J. GUETLING,
Charging Party, Case No. S-CO-322
Vv.

LOS RIOS COLLEGE FEDERATION OF
TEACHERS ,

Respondent.

ELENE E. HOLMES,
Charging Party, Case No. S-CO-323
Vv.

LOS RIOS COLLEGE FEDERATION OF
TEACHERS,

Respondent.

BILL K. MONROE,
Charging Party, Case No. S-CO-324
Vv.

LOS RIOS COLLEGE FEDERATION OF
TEACHERS,

Respondent.

ee ee ee ee ee ee ee ee ee ee ee ee ee te ie ee ee

MINA-MAY 	BROWN 	ROBBINS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
JOHN 	R. 	DARLING,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
DOUGLAS 	F. 	GARDNER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
WILLIAM 	P. 	DIONISIO,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
Case 	No. 	S-C0-325
Case 	No. 	S-C0-326
Case 	No. 	S-C0-327
Case 	No. 	S-C0-328
2

GLOYD 	ZELLER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS I
Respondent.
FRANK 	BAKER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
ROBERT 	E. 	PROAPS, 	JR.,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS I
Respondent.
DONALD 	BRYANT 	KENT,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
Case 	No. 	S-CO-329
Case 	No. 	S-CO-330
Case 	No. 	S-CO-331
Case 	No. 	S-CO-332
3

NOEL 	LANCE 	BERNATH,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ )
RYAN 	POLSTRA,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ )
Case 	No. 	S-C0-334
Case 	No. 	S-C0-335
Appearances: 	Elmer 	(John) 	Sander, 	Alfred 	J. 	Guetling, 	Elene 	E.
Holmes, 	Bill 	K. 	Monroe, 	Mina-May 	Brown 	Robbins, 	John 	R. 	Darling,
William 	P. 	Dionisio, 	Frank 	Baker, 	Noel 	Lance 	Bernath, 	Ryan
Polstra, 	on 	their 	own 	behalf; 	Bill 	Monroe, 	on 	behalf 	of 	Douglas
Gardner; 	Annette 	M. 	Deglow, 	on behalf 	of 	Gloyd 	Zeller; 	Cynthia D.
Kent, 	on 	behalf 	of 	Donald 	Bryant 	Kent; 	Law Offices 	of 	Robert 	J.
Bezernek 	by Adam H. 	Birnhak, 	Attorney, 	for 	Los 	Rios 	College
Federation 	of 	Teachers.
Before 	Carlyle, 	Garcia 	and 	Johnson,, 	Members.
DECISION
GARCIA, 	Member: 	This 	consolidated 	case 	is 	before 	the 	Public
Employment 	Relations 	Board 	(PERE 	or 	Board) 	on 	appeal 	by 	Elmer
(John) 	Sander, 	Alfred 	J. 	Guetling, 	Elene 	E. 	Holmes, 	Bill 	K.
Monroe,. Mina-May 	Brown 	Robbins, 	Douglas 	F. 	Gardner, 	Gloyd 	Zeller,
Frank 	Baker, 	Donald 	Bryant 	Kent, 	William 	P. 	Dionisio, 	Noel 	Lance
4

Bernath, 	and 	Ryan 	Polstra 	(Charging 	Parties) 1 to 	a 	PERB
administrative 	law 	judge's 	(ALJ) 	proposed 	decision 	(attached)
The 	ALJ 	dismissed 	the 	unfair 	practice 	charges 	and 	complaint,
which 	alleged violations 	of 	section 	3543.6(b) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA) . 2 	After 	reviewing 	the 	entire
record 	in 	this 	case, 	including 	the 	proposed 	decision, 	transcript,
exhibits, 	the 	exceptions 	and 	the 	response 	filed 	by 	the 	Los 	Rios
College 	Federation 	of 	Teachers 	(Federation), 	the 	Board 	hereby
adopts 	the 	ALJ's 	proposed 	decision 	consistent 	with 	the 	following
discussion.
1On 	May 	17, 	1995, 	Charging 	Party 	Robert 	E. 	Proaps, 	Jr. 	(Case
No. 	S-CO-331) 	notified 	the 	Board 	that 	he 	had 	not 	filed 	exceptions
to 	the 	proposed 	decision. 	The 	appeals 	assistant 	confirmed 	this
by 	letter 	on May 	22, 	1995.
On May 	26, 	1995, 	Charging 	Party 	John 	R. 	Darling 	requested
that 	the 	exceptions 	in 	Case 	No. 	S-CO-326 	be 	withdrawn. 	The 	Board
hereby 	grants 	the 	request 	for 	withdrawal 	in 	Case 	No. 	S-CO-326.
Therefore, 	the 	Board's 	Order 	in 	this 	Decision 	does 	not 	apply
to 	Case 	No. 	S-CO-331 	or 	Case 	No. 	S-CO-326. 	However, 	the 	ALJ's
proposed 	decision 	is 	binding 	on 	the 	parties 	in 	Case 	No. 	S-CO-331
and 	Case 	No. 	S-CO-326.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code. 	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.
5

CHARGING 	PARTIES' 	EXCEPTIONS
The 	Charging 	Parties' 	statement 	of 	exceptions 	reads, 	in
pertinent 	part:
We 	hereby 	appeal 	the 	decision. 	on 	the
grounds 	that 	the 	evidence 	presented 	does 	in
fact 	support 	that 	the 	Federation 	by 	its 	acts
and 	conduct 	outlined 	and 	presented within 	the
record 	... 	did 	in 	fact 	act 	contrary 	to
their 	obligation 	described 	in 	Government 	Code
section 	3544.9 	and 	thereby 	violated
Government 	Code 	section 	3543.6(b) 	of 	the
[EERA] 	with 	respect 	to 	our 	employment 	rights.
We 	respectfully 	submit 	that 	the 	Regional
Attorney 	erred 	in 	his 	findings .... 	the
record 	supports 	that 	the 	Federation 	failed 	to
meet 	its 	duty 	of 	fair 	representation 	with
regard 	to 	their 	representation 	of 	58
grievances 	filed 	by 	the 	[charging 	parties],
thereby 	violating 	subdivision 	(b) 	of 	section
3543.6.
FEDERATION'S 	RESPONSE 	TO 	EXCEPTIONS
The 	Federation 	briefly 	responded 	to 	the 	statement 	of
exceptions, 	noting 	that:
The 	Board 	does 	not 	consider 	exceptions 	which
do 	not 	comply 	with 	PERB 	Regulation 	32300.
Janowicz 	v. 	State 	of 	California 	(Department
of 	Youth 	Authority) 	(1995) 	PERE 	Order
No. 	1080-8 	[Janowicz]. 	The 	charging 	parties'
statement 	of 	exceptions 	does 	not 	comply 	with
PERE 	Reg. 	32300 	because 	it 	does 	not: 	(1)
state 	the 	specific 	issues 	of 	procedure, 	fact,
law 	or 	rationale 	to 	which 	each 	exception 	is
taken; 	(2) 	identify 	the 	page 	or 	part 	of 	the
decision 	to 	which 	each 	exception 	is 	taken;
(3) 	designate 	by 	page 	citation 	or 	exhibit
number, 	the 	portions 	of 	the 	record, 	if 	any,
relied 	upon 	for 	each 	exception; 	and 	(4) 	state
the 	grounds 	for 	each 	exception.
6

DISCUSSION
The
	Federation's
	citation
	to
	Janowicz
	is
	appropriate.
	In
essence, 	the
	"Statement 	of 	Exceptions"
	is
	nothing
	more
	than
	a
repetition
	of
	the
	allegations 	in
	the
	original 	unfair 	practice
charges,
	coupled
	with
	a
	refutation
	of
	the
	ALJ's
	conclusions.
	The
exceptions
	do
	not
	identify
	the
	grounds
	on
	which
	exception
	is
taken,
	much
	less
	provide 	the
	specific
	types 	of
	information
required 	in
	PERE
	Regulation
	32300.
3	
We
	do
	not
	consider
exceptions
	that
	fail
	to
	comply
	with 	the 	standard.
ORDER
The
	Board
	hereby
	AFFIRMS
	the
	proposed
	decision 	in
	Case
Nos. 	S-CO-321, 	S-CO-322, 	S-CO-323, 	S-CO-324, 	8-CO-325, 	S-CO-327,
S-C0-328,
	S-CO-329, 	S-CO-330, 	S-CO-332, 	8-CO-334
	and 	S-CO-335.
Members
	Carlyle
	and 	Johnson
	joined 	in
	this
	Decision.
3PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.
7

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ELMER
	(JOHN) 	SANDER,
Charging
	Party,
v.
LOS
	RIOS 	COLLEGE. FEDERATION
	OF
TEACHERS,
Respondent.
ALFRED
	J.
	GUETLING,
Charging
	Party,
v.
LOS
	RIOS 	COLLEGE 	FEDERATION
	OF
TEACHERS,
Respondent.
ELENE
	E.
	HOLMES,
Charging
	Party,
v.
LOS
	RIOS 	COLLEGE 	FEDERATION
	OF
TEACHERS,
Respondent.
BILL
	K.
	MONROE,
Charging
	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
Unfair
	Practice
Case
	No.
	S-C0-321
PROPOSED 	DECISION
(4/6/95)
Case
	No.
	S-C0-322
Case
	No.
	S-C0-323
Case
	No.
	S-C0-324

MINA-MAY 	BROWN 	ROBBINS,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
JOHN 	R. 	DARLING,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
DOUGLAS 	F. 	GARDNER,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
WILLIAM 	P. 	DIONISIO,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
Case 	No. 	S-C0-325
Case 	No. 	S-C0-326
Case 	No. 	S-C0-327
Case 	No. 	S-C0-328
2

GLOYD 	ZELLER,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
FRANK 	BAKER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
)
)
)
)
)
)
)
)
)
)
__________________ )
ROBERT 	E. 	PROAPS, 	JR.,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION 	OF
TEACHERS,
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
DONALD 	BRYANT 	KENT,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
_____________
)
)
)
)
)
)
)
)
)
)
_ )
3
Case 	No. 	S-CO-329
Case 	No. 	S-CO-330
Case 	No. 	S-CO-331
Case 	No. 	S-CO-332

NOEL 	LANCE 	BERNATH,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
RYAN 	POLSTRA,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS,
Respondent.
Case 	No. 	S-C0-334
Case 	No. 	S-C0-335
Appearances: 	Cynthia 	Kent, 	Attorney, 	for 	Donald 	Bryant 	Kent,
Michael 	K. 	Brady, 	Attorney, 	for 	Elene 	E. 	Holmes, 	Annette 	Deglow
for 	Gloyd 	Zeller, 	and 	Elmer 	(John) 	Sander, 	Alfred 	J. 	Guetling,
Bill 	K. 	Monroe, 	Mina-May 	Brown 	Robbins, 	John 	R. 	Darling, 	Douglas
Gardner, 	William Dionisio, 	Frank 	Baker, 	Robert 	E. 	Proaps, 	Jr.,
Noel 	Lance 	Bernath 	and 	Ryan 	Polstra, 	on 	their 	own 	behalf; 	Law
Offices 	of 	Robert 	J. 	Bezemek 	by 	Adam H. 	Birnhak, 	Attorney, 	for
Los 	Rios 	College 	Federation 	of 	Teachers.
Before 	Allen 	R. 	Link, 	Administrative 	Law 	Judge.
INTRODUCTION
The 	complaint 	in 	this 	case 	alleges 	that 	at 	various 	times 	in
early 	1993, 	Annette 	M. 	Deglow 	(Deglow) 	and 	the 	charging 	parties,
all 	of 	whom are 	part-time 	instructors 	and 	were 	employed 	by 	the
Los 	Rios 	Community 	College 	District 	(District) 	prior 	to 	1967
(pre-67 	instructors), 	filed 	collective 	bargaining 	agreement 	(CBA)
grievances. 	The 	grievances 	concerned 	(1) 	seniority,
(2) 	longevity 	pay, 	(3) 	sick 	leave 	credits, 	and 	(4) 	retirement
credits. 	Not 	all 	of 	the 	charging 	parties 	filed 	grievances 	on 	all
4

of
	these
	subjects.
	The
	complaint
	further 	alleges 	that 	the
	Los
Rios
	College
	Federation
	of
	Teachers 	(Federation} 	took
	the
following 	negative
	action(s)
	with
	regard
	to 	these 	grievances:
(1)
	made
	negative
	comments
	about
	Deglow
	to
	the
	District's
personnel
	director;
	(2)
	informed
	Deglow
	that
	it
	would
	only
	be
interested
	in
	her 	grievances
	if
	she
	and
	the 	other
	pre-67
instructors
	became
	Federation
	members;
	(3)
	refused
	to
	pursue 	the
subject
	grievances
	to
	a
	Board
	of
	Review
	hearing;
	and
	(4)
	rejected
requests 	for 	reconsideration
	of
	this 	refusal.
The
	Federation
	responds
	that
	it
	fairly
	represented
	the
pre-67
	instructors
	and
	that
	their
	grievances
	were
	either
collaterally
	estopped 	or
	were
	outside 	the
	ambit
	of
	matters
within
	the
	Federation's 	control.
PROCEDURAL
	HISTORY
Unfair
	practice
	charges
	were
	filed
	on 	August 	8, 	1994, 	by
Elmer
	(John)
	Sander,
	Alfred
	J.
	Guetling,
	Elene
	E. 	Holmes,
	Bill
	K.
Monroe,
	Mina-May 	Brown
	Robbins, 	John
	R.
	Darling,
	and 	Douglas
	F.
Gardner
	(PERB
	Case 	Nos. 	S-CO-321
	through
	S-CO-327), 	on
	August 	11,
1994, 	by 	Gloyd
	Zeller,
	Frank 	Baker, 	Robert
	E.
	Proaps,
	Jr.,
	Donald
Bryant
	Kent, 	and William
	P.
	Dionisio
	(S-CO-328
	through 	S-CO-332),
on
	August 	17, 	1994, 	by 	Noel 	Lance
	Bernath
	(S-CO-334), 	and 	on
August 	19, 	1994, 	by
	Ryan
	Polstra
	(S-CO-335),
	with 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	against 	the 	Federation
5

alleging 	violations 	of 	various 	sections 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA 	or 	Act) . 1
On August 	18, 	1994, 	after 	an 	investigation 	of 	the 	charges,
PERB's 	Office 	of 	the 	General 	Counsel 	issued 	a 	complaint 	alleging
violations 	of 	subdivision 	(b) 	of 	section 	3543.6. 2 	On
September 	9, 	1994, 	an 	informal 	conference 	was 	held 	in 	an 	attempt
to 	reach 	voluntary 	settlement. 	No 	settlement 	was 	reached.
On 	September 	1, 	1994, 	the 	respondent 	filed 	its 	answer 	to 	the
complaint.
A 	formal 	hearing 	was 	held 	by 	the 	undersigned 	on 	December 	8
and 	9, 	1994. 	The 	hearing 	was 	abbreviated 	due 	to 	the
incorporation 	by 	reference 	of 	the 	transcript 	and 	exhibits 	of 	a
previous 	hearing 	on 	the 	same 	subject 	filed 	by 	Deglow. 3 	The
formal 	hearing 	in 	that 	case, 	Los 	Rios 	College 	Federation 	of
Teachers 	(PERB 	Case 	No. 	S-CO-314), 	was 	heard 	in 	August 	of 	1994.
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq. 	All
section 	references, 	unless 	otherwise 	noted, 	are 	to 	the 	Government
Code.
2Subdivision 	(b) 	of 	section 3543.6, 	in pertinent part, 	states:
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.
3No transcripts were prepared nor briefs submitted in this 	case
due 	to 	the 	incorporation 	of 	the 	record 	of 	the 	previous 	case.
6

Two
	of 	the
	allegations
	in
	this
	case
	concern
	direct
	Federation
contact
	with, 	or
	comments
	about,
	Deglow.
Each
	side
	waived
	post-hearing
	briefs,
	but
	submission
	of
additional
	documentation
	delayed
	the
	submission
	date
	until
December 	19, 	1994.
FINDINGS
	OF
	FACT
Jurisdiction
It
	is
	found
	that
	the
	charging
	parties
	are 	public 	school
employees,
	and
	the
	respondent
	is
	an
	employee
	organization
	and
exclusive 	representative,
	within 	the
	meaning
	of
	section
	3540.1.
Background
On
	July
	1, 	1965,
	as
	a
	result
	of
	a
	general 	population
election,
	the
	Los
	Rios
	Junior
	College
	District
	assumed
	the
operation
	of
	the
	American
	River 	College
	and 	Sacramento
	City
College.
	American
	River 	College
	was,
	at 	that
	time,
	an
independent
	operating 	junior 	college
	district.
	However,
Sacramento
	Junior/City
	College
	had 	been
	a
	part
	of 	the
	Sacramento
City 	Unified
	School
	District
	since
	1916. 	Through
	this
	merger
process, 	the 	pre-67
	instructors
	became
	employees
	of 	the
	new
district,
	which
	was
	renamed
	Los
	Rios
	Community
	College
	District
in
	1970.
During
	this
	merger
	process 	the 	pre-67
	instructors 	believed
they
	were 	not 	given 	the
	full
	quantum
	of
	rights
	they
	were
	entitled
to
	by 	law. 	Most
	of 	the 	grievances 	that 	are 	the 	subject 	of
	this
case 	involve 	allegations 	that 	the 	Federation 	breached
	its
	duty 	of
7

fair 	representation 	with 	regard 	their 	attempts 	to 	attain 	these
rights 	from 	the 	District.
The 	Federation and 	the 	District 	were 	parties 	to 	a 	CBA,
effective 	July 	1, 	1990 	to 	June 	30, 	1993. 	On 	August 	25, 	1993,
the 	parties 	signed 	a 	successor 	CBA, 	effective 	July 	1, 	1993 	to
June 	30, 	1996.
Seniority 	Grievance
In 	1980-81, 	Deglow 	filed 	a 	grievance, 	similar 	to 	the 	one
filed 	by 	her 	and 	the 	charging 	parties 	in 	1993, 	over 	her 	seniority
date 	on 	the 	certificated 	register 	(a 	register 	of 	all 	District
instructors 	in 	chronological 	employment 	hire 	date 	order). 	The
Federation 	took 	the 	identical 	position 	on 	this 	grievance 	that 	it
took 	with 	regard 	to 	the 	previous 	one, 	that 	the 	seniority 	date
issue 	did 	not 	have 	an 	"adverse 	affect," 	on 	Deglow 	or 	any 	of 	the
charging 	parties 	and 	therefore 	did 	not 	fall 	within 	the 	CBA
definition 	of 	grievance. 4 	On 	June 	30, 	1981, 	Deglow 	reacted 	to
the 	Federation's 	opposition 	by 	filing 	an 	unfair 	practice 	charge
over 	its 	refusal 	to 	take 	her 	grievance 	to 	the 	Board 	of 	Review,
the 	last 	step 	in 	the 	CBA grievance 	procedure.
A 	PERB 	Administrative 	Law 	Judge 	(ALJ) 	held 	that 	Deglow 	was
"seeking 	the 	expenditure 	of 	Federation 	funds 	to 	challenge 	an
issue 	that 	might 	never 	arise." 	He 	went 	on 	to 	state 	that 	the
4The 	CBA defines 	a 	grievance 	as 	a 	complaint 	by:
a. 	a 	unit 	member 	that 	she/he 	has 	been
adversely 	affected 	by 	a 	misrepresentation,
misapplication 	or 	violation 	of 	the 	provisions
of 	this 	Agreement, 	[Emphasis 	added.]
8

Federation 	had 	legitimate 	reasons 	for 	not 	pursuing 	the 	grievance
and 	that 	it 	informed 	Deglow 	of 	those 	reasons. 	(See 	Los 	Rios
College 	Federation 	of 	Teachers, 	Local 	2279, 	CFT/AFT, 	AFL-CIO
(1982) 	PERB 	Decision 	No. 	HO-U-147, 	pp. 	39-40.) 	Although 	the
charging 	parties 	were 	not 	in 	privity with 	Deglow 	in 	the 	1981
charge, 	issues 	that 	are 	identical 	to 	those 	presented 	in 	this 	case
were 	litigated 	once 	before 	and 	found 	to 	be 	insufficient 	to
justify a 	favorable 	decision.
Deglow's 	1993 	grievance 	states 	that 	her 	"current 	seniority
date 	on 	the 	Certificated 	Employment 	Register 	does 	not 	reflect 	my
relative 	date 	of 	employment 	consistent 	with 	past 	policies 	and
procedures 	utilized 	for 	others 	in my 	'position_'. 11
Longevity 	Pay
On 	December 	5, 	1990, 	Deglow 	and 	other 	pre-67 	instructors,
collectively 	filed 	an 	unfair 	practice 	charge 	alleging 	the
Federation 	violated 	EERA 	by 	agreeing 	to 	a 	CBA 	longevity
provision. 	This 	CBA 	provision 	granted 	a 	11 4% 	longevity 	increase
after 	20 	years 	in 	Los 	Rios." 	Shortly 	thereafter, 	the 	Federation
and 	the 	District 	modified 	this 	provision 	to 	read:
After 	20 	years 	of 	full-time, 	tenure-track
service 	with 	Los 	Rios, 	a 	longevity 	increment
will 	be 	awarded 	which 	is 	4% 	of 	the
appropriate 	range 	and 	step.
The 	Board 	dismissed 	the 	charge 	in 	Los 	Rios 	College
Federation 	of 	Teachers, 	CFT/AFT 	(Baker 	et 	al.) 	(1991) 	PERB
Decision 	No. 	877 	(Baker 	et 	al.) 	for 	two 	reasons. 	First, 	it
stated 	that 	the 	pre-67 	instructors 	waited 	until 	more 	than 	six
months 	after 	the 	subject 	Federation 	action 	to 	file 	their 	charge.
9

EERA 	prohibits 	PERB 	from 	issuing 	a 	complaint 	under 	such
circumstances. 5 The 	second 	reason 	was 	that 	an 	exclusive
representative 	is 	not 	obligated 	to 	bargain 	a 	particular 	item
benefitting 	certain 	unit 	member(s). 	The 	charge 	was 	dismissed
because 	conduct 	under 	the 	"arbitrary, 	discriminatory 	or 	in 	bad
faith" 	standard 	requires 	a 	showing 	that 	the 	exclusive
representative's 	conduct 	was 	without 	a 	rational 	basis 	or 	was
devoid 	of 	honest 	judgment. 	Such 	a 	showing 	was 	not 	made 	in 	that
case.
On 	January 	11, 	1993, 	Deglow 	filed 	a 	new 	grievance 	alleging,
once 	again, 	that 	the 	District 	was 	violating 	the 	CBA by 	not
granting 	her, 	and 	by 	implication 	the 	other 	pre-67 	instructors,
the 	4 	percent 	longevity 	increase.
Retirement 	Credit 	Grievance
Deglow's 	January 	11, 	1993, 	retirement 	credit 	grievance,
which 	complains 	of 	the 	same 	District 	action 	as 	that 	of 	the 	other
charging 	parties, 	states 	that 	her 	"STRS~ 	records 	indicate 	that 	I
have 	not 	been 	provided 	service 	credit 	consistent 	with my
5 Section 	3541.5 	states, 	in 	pertinent 	part:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the 	board
shall 	not 	do 	either 	of 	the 	following:
(1) 	Issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge;
6 STRS 	is 	an 	acronym 	for 	the 	State 	Teachers 	Retirement 	System.
10

probationary/regular 	status 	in 	the 	early 	years 	of 	my 	employment"
(emphasis 	added). 	The 	allegations 	contained 	in 	the 	grievances
filed 	by 	the 	other 	pre-67 	instructors 	parallel 	this 	chronological
period.
The 	Federation was 	first 	elected 	exclusive 	representative 	of
the 	District's 	instructor 	bargaining 	unit 	in 	1977, 	long 	after 	the
pre-67 	instructors 	were 	allegedly 	harmed 	by 	the 	District.
Sick 	Leave 	Credit 	Grievance
Deglow's 	January 	11, 	1993, 	sick 	leave 	credit 	grievance,
which 	complains 	of 	the 	same 	District 	action 	as 	that 	of 	the 	other
charging 	parties, 	states 	that 	"[m]y 	sick 	leave 	records 	indicate
that 	I 	have 	not 	been 	provided 	sick 	leave 	credit 	consistent 	with
my 	probationary 	status 	in 	the 	early 	years 	of 	my 	employment"
(emphasis 	added). 	Deglow 	was 	on 	probationary 	status 	from
September 	1967 	through 	the 	end 	of 	the 	1973-74 	school 	year. 	As
stated 	above, 	the 	Federation 	became 	the 	exclusive 	representative
in 	1977.
Federation's 	Alleged 	Actions
Negative 	Perrone 	Comments 	about 	Deglow 	to 	Personnel 	Manager
This 	charge 	concerns 	a 	conversation between a 	Federation
employee, 	the 	District's 	personnel 	manager 	and 	another 	District
instructor 	in which 	certain 	derogatory 	statements 	were 	made 	about
Deglow. 	She 	filed 	an 	identical 	unfair 	practice 	charge 	based 	on
this 	same 	conversation 	against 	the 	District. 	PERB 	eventually
dismissed 	the 	charge, 	incorporating 	a 	board 	agent's 	warning 	and
dismissal 	letters. 	(See 	Los 	Rios 	Community 	College 	District
11

(1994)
	PERB
	Decision
	No.
	1048.)
	Those
	letters
	described
	the
conversation
	as 	follows:
On
	July
	20, 	1993,
	Michael
	Lowman, 	a
	part
	time
instructor
	for 	the
	Employer,
	Mary
	Jones, 	the
Employer's
	Director
	of 	Personnel,
	and
	Robert
Perrone, 	the
	Federation's
	Executive
	Director
met
	for
	a
	grievance 	hearing
	concerning
	a
separate 	matter
	involving
	Lowman.[71	
According
to
	Lowman,
	the 	following
	exchange
	took
	place
between
	Jones
	and
	Perrone
	at 	that
	meeting:
Jones:
	"And
	also
	I
	had
	to
	deal 	with
	Deglow
today
	too,
	so
	I'm
	not
	in
	a
	very
	good mood."
Perrone:
	"Oh
	right,
	Deglow,
	I
	can
	understand
why
	you
	wouldn't
	be
	in
	a
	very
	good 	mood."
Jones:
	"Yeh,
	she's
	filing
	a
	grievance
because 	she
	says
	nobody
	likes
	her
	and
	you
know
	what?
	It's
	true,
	nobody
	does."
Jones
	and
	Perrone: 	Laughter.
Perrone:
	"Oh
	I've
	dealt
	with
	Deglow.
	I
	kno
what
	you're
	faced
	with."
Jones
	and
	Perrone: 	Laughter.
Federation 	Conditioning 	Action
	on Membership
w
Deglow
	stated, 	in 	her
	first
	amended
	charge,
	that
	during
	a
telephone 	conversation
	in
	late
	November
	1993,
	Perrone
	told
	her
that
	"the
	Union 	membership
	was
	not
	interested 	in
	her 	issue
	and
pre-67 	issues 	in 	general;
	however
	if
	Deglow
	and
	the
	other
	Pre-67
instructors
	were
	to 	join
	the
	Union
	the 	issues
	could
	be
considered."
	Perrone 	denies
	making
	this
	statement, 	or 	anything
like
	it.
7Lowman
is
	not
	a
	pre-67 	instructor nor
a
	grievant 	in any of 	the
subject 	grievances. 
12

As
	no
	one
	else
	was
	a
	party 	to
	this
	conversation
	and
	both
Perrone
	and
	Deglow
	testified
	in
	a
	credible
	manner,
	a
	resolution
of
	the
	conflict
	requires
	an
	examination 	of
	other
	factors.
First,
	in
	a
	letter
	dated
	December
	11, 	1993,
	several
	of
	the
pre-67
	instructors
	wrote
	to
	Federation 	President
	Linda
	Cullings
Hartin
	(Cullings-Hartin)
	complaining 	about
	the
	Federation's
inactivity
	on
	behalf
	of
	their
	longevity 	grievances
	and
	requesting
a
	meeting 	with
	her.
	No
	mention
	was 	made
	of
	Perrone's
	alleged
statement 	conditioning 	Federation 	consideration
	on
	membership.
Second,
	on
	January
	10, 	1994,
	Deglow
	filed
	her
	initial
charge.
	No
	mention
	was 	made
	of
	the
	Perrone
	statement.
Certainly,
	this
	statement
	co~ld
	have
	provided 	evidence
	to
	support
an
	inference
	of
	animus
	towards
	the 	pre-67
	instructors
	and 	would,
if
	proven,
	be
	a
	factor 	in
	any
	failure
	to
	meet
	a
	duty 	of
	fair
representation
	charge.
	However,
	it
	was
	not
	until
	February 	16,
when
	she
	filed
	her
	first
	amended
	charge,
	that
	she
	first
	made
	the
allegation
	about
	Perrone's 	statement.
	Granted,
	the
	initial
charge
	was
	not 	as
	detailed
	as 	the
	amended
	one,
	but 	there
	was
sufficient 	detail 	in
	it
	to
	set 	forth 	other 	factual 	allegations
that
	she
	deemed
	persuasive.
	Deglow's
	initial
	allegations
included 	both 	the 	negative 	statement
	made
	by
	Perrone
	to 	the
District's
	personnel
	director,
	and
	a
	slight 	that
	she 	perceived 	in
a
	Perrone
	letter
	to
	one
	of 	the 	other pre-67
	instructors.
	The
"conditioning 	action
	on membership"
	allegation
	would 	have
outweighed
	either
	of 	these 	incidents 	in
	any
	"inference 	of 	animus"
scale. 
13

Third, 	at 	the 	time 	Perrone 	allegedly 	made 	the 	subject
statement, 	several 	of 	the 	pre-67 	instructors 	were 	members 	of 	the
Federation. 	Perrone 	was 	aware 	of 	that 	fact 	at 	that 	time.
Lastly, 	Perrone 	is 	an 	experienced, 	journeyman 	labor
relations 	professional. 	Deglow 	has 	made 	no 	secret 	of 	her
membership 	in, 	and 	preference 	for, 	CTA becoming 	the 	unit's
exclusive 	representative. 	She 	has 	been 	a 	leader 	in 	CTA's 	various
attempts 	to 	decertify 	the 	Federation 	as 	the 	unit's 	bargaining
representative. 	It 	would 	have 	been 	both 	stupid 	and 	foolhardy 	for
him 	to 	overtly 	make 	such 	an 	improper 	statement 	to 	Deglow.
Perrone 	is 	neither 	stupid 	nor 	foolhardy. 	He 	would 	have 	been 	very
aware 	that 	(1) 	this 	type 	of 	statement 	would 	not 	cause 	Deglow,
,after 	years 	of 	battling 	the 	Federation, 	to 	join 	it, 	and 	(2)
Deglow 	would 	use 	the 	statement 	against 	him 	in 	subsequent
proceedings.
However, 	as 	stated 	above, 	Deglow's 	testimony 	was 	both
forthright 	and 	credible. 	The 	evidence 	supports 	a 	finding 	that
although 	Perrone 	did 	not 	make 	the 	alleged 	statement, 	she
misinterpreted 	something 	he 	said 	to 	arrive 	at 	a 	conclusion 	that
the 	11 conditioning 	action 	on membership 0 statement 	was 	made.
Federation's 	Refusal 	to 	Take 	Grievances 	to 	Board 	of 	Review
On 	February 	23, 	1994, 	the 	Federation 	declined 	to 	take 	any 	of
the 	pre-67 	instructor 	grievances 	to 	the 	District's 	Board 	of
Review, 	the 	last 	step 	in 	the 	grievance 	procedure. 	Deglow
believes 	that 	this 	decision 	was 	based 	on animus 	towards 	her 	and
the 	other 	pre-67 	instructors. 	The 	Federation 	insists 	that 	its
14

decision
	was
	not
	based
	on
	animus
	but
	rather
	on
	two
	other
	factors.
The
	Federation's 	attorney
	stated,
	first,
	that
	the 	grievances
would
	probably 	not
	be
	successful
	at
	the 	grievance
	level,
	and
second,
	even
	if
	there
	was
	a
	favorable 	decision
	from
	the
	Board
	of
Review,
	it
	was
	likely
	the
	District's
	governing 	board
	would
overturn
	such
	decision.
	The
	CBA
	has
	no
	provision 	for
	binqing
arbitration.
	The
	Federation
	has
	never 	taken
	a
	grievance
	to
	the
Board
	of
	Review
	in
	the
	past
	six
	years.
ISSUES
Did
	the 	Federation
	fail
	to
	meet
	its
	duty 	of
	fair
representation
	with 	regard
	to 	the
	pre-67
	instructor
	grievances,
thereby
	violating
	subdivision
	(b)
	of
	section
	3543.6?
CONCLUSIONS
	OF
	LAW
Standard 	for
	Duty
	of
	Fair 	Representation
In 	order
	to
	prove
	a
	violation
	of 	the 	duty 	of
	fair
representation,
8	
the 	charging
	parties
	must
	show
	that
	the
	employee
organization's
	conduct
	was
	arbitrary,
	discriminatory 	or
	in
	bad
faith.
	(Rocklin 	Teachers
	Professional 	Association
	(1980)
	PERB
Decision
	No. 	124
	(Rocklin),
	citing
	precedent
	set
	by
	the 	National
Labor
	Relations
	Board 	and
	affirmed
	by
	the
	U.
	S.
	Supreme
	Court
	in
Vaca
	v. 	Sipes
	(1967) 	386
	U.S. 	171
	[64
	LRRM
	2369)
.)
8
The
	duty 	of
	fair
	representation
	is 	set 	forth 	in 	section3544.9.
	It
	states:
The 	employee
	organization 	recognized 	or
certified
	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and
	negotiating
shall 	fairly 	represent 	each 	and 	everyemployee
	in 	the 	appropriate 	unit.
15

The 	Board 	in 	Rocklin, 	affirmed 	this 	concept 	as 	set 	forth 	in
Griffin 	v. 	United 	Auto 	Workers 	(4th 	Cir. 	1972) 	469 	F.2d 	181 	[81
LRRM 	2485], 	as 	follows:
A union 	must 	conform 	its 	behavior 	to 	each 	of
these 	standards. 	First, 	it 	must 	treat 	all
factions 	and 	segments 	of 	its 	membership
without 	hostility 	or 	discrimination. 	Next,
the 	broad 	discretion 	of 	the 	union 	in
asserting 	the 	rights 	of 	its 	members 	must 	be
exercised 	in 	complete 	good 	faith 	and 	honesty.
Finally, 	the 	union must 	avoid 	arbitrary
conduct. 	Each 	of 	these 	requirements
represents 	a 	distinct 	and 	separate
obligation, 	the 	breach 	of 	which may
constitute 	the 	basis 	of 	civil 	action.
The 	repeated 	references 	in Vaca 	to
"arbitrary" 	union 	conduct 	reflected 	a
calculated 	broadening 	of 	the 	fair
representation 	standard. 	[Citations]
Without 	any 	hostile 	motive 	of 	discrimination
and 	in 	complete 	good 	faith, 	a 	union may
nevertheless 	pursue 	a 	course 	of 	action 	or
inaction 	that 	is 	so 	unreasonable 	and
arbitrary 	as 	to 	constitute 	a 	violation 	of
the 	duty 	of 	fair 	representation.
Charging 	Party's 	Alleaations
The 	complaint 	cites 	four 	factual 	examples 	of 	the 	Federation
allegedly 	failing 	to 	meet 	its 	duty 	of 	fair 	representation. 	The
first 	two 	will 	be 	discussed 	to 	determine 	if 	either 	of 	them
constitute 	an 	independent 	or 	per 	se 	violation 	of 	the 	Act 	and/or
support 	an 	inference 	of 	unlawful 	motivation 	on 	the 	part 	of 	the
Federation 	towards 	Deglow 	or 	the 	pre-67 	instructors. 	With 	regard
to 	the 	third, 	the 	Federation's 	failure 	to 	take 	the 	above
described 	grievances 	to 	the 	Board of 	Review, 	the 	merits 	of 	the
grievances 	themselves 	will 	be 	evaluated 	to 	determine 	whether 	the
16

Federation's 	action
	was
	arbitrary,
	discriminatory 	or
	in
	bad
faith. 	If
	the
	Federation's 	actions
	regarding 	the
	grievances 	are
deemed
	proper,
	it
	would
	be
	justified
	in 	rejecting
	the 	charging
parties'
	requests
	for 	reconsideration,
	the 	fourth
	charge
	alleged
in 	the
	complaint.
Negative
	Perrone
	Comments
	about
	Deglow
	to
	Personnel
	Manager
This
	conversation
	was
	discussed
	at
	length 	in
	the 	Board's
decision 	in
	Deglow's 	charge
	against
	the
	District.
	(Los
	Rios
Community
	College
	District,
	supra,
	PERB
	Decision
	No.
	1048.)
	In
that
	decision, 	the
	Board
	stated, 	in 	pertinent 	part:
The
	test
	which must 	be
	satisfied 	is
	notwhether
	the
	employee 	found
	the
	employer's
action 	to
	be
	adverse, 	but
	whether
	a
reasonable 	person 	under
	the
	same
circumstances
	would
	consider 	the
	action 	to
have 	an
	adverse
	impact
	on
	the 	employee's
employment. 	(Emphasis
	added;
	footnote
omitted.)
The
	instant 	allegation
	does
	not
	meet
	the 	standard
established
	under
	Novato, 	and
	Palo
	Verde
	Unified
School
	District,
	supra,
	and 	Newark.~
1	
The
	chargedoes
	not
	allege 	facts 	to
	establish
	how
	(using 	an
objective 	test)
	the
	action
	of
	the
	Employer
	in
making
	disparaging
	remarks 	about
	Deglow
	in
	the
presence 	of
	another
	employee
	caused
	harm
	or
	had
"impact
	on
	the 	employee's
	ernployment.
11
	However
understandable
	Deglow's
	subjective 	reaction 	to
this 	incident, 	the
	facts 	alleged 	here
	do
	not
bring 	the
	conduct
	within 	the
	ambit 	of
	a
	violation
of
	EERA
	and
	the
	allegation
	must 	be
	dismissed.
Statements
	made
	by 	an 	employer
	are 	to
	be
viewed
	in 	their 	overall 	context
	(i.e.,
	in
light
	of 	surrounding 	circumstances) 	todetermine
	if
	they
	have
	a
	coercive
	meaning.
9
Novato 	Unified 	School
	District
	(1982)
	PERB
	Decision
	No. 	210;
Palo 	Verde 	Unified 	School
	District
	(1988) 	PERB
	Decision
	No. 	689;
and 	Newark
	Unified 	School
	District
	(1991) 	PERB
	Decision
	No. 	864.
17

(Los 	Angeles 	Unified 	School 	District 	(1988)
PERB 	Decision 	No. 	659; 	emphasis 	added;
footnotes 	and 	citations 	omitted.)
The 	allegations 	here 	are 	free 	of 	any
statements 	or 	conduct 	which 	has, 	on 	its 	face,
"coercive 	meaning."
Although 	the 	Board's 	decision 	concerned 	employer 	action, 	it
was 	examining 	the 	same 	dialogue 	to 	which Deglow 	and 	the 	pre-67
instructors 	are 	objecting 	in 	this 	case.
An 	examination 	of 	the 	subject 	statements, 	viewed 	in 	there
overall 	context, 	dictates 	a 	conclusion 	that 	they 	neither 	caused
harm 	to, 	nor 	had 	an 	adverse 	impact 	on 	the 	employee's 	(Deglow's 	or
any 	of 	the 	pre-67 	instructors') 	employment. 	Nor 	did 	they 	have 	a
"coercive 	meaning" 	within 	the 	context 	of 	Los 	Angeles 	Unified
School 	District 	(1988) 	PERB 	Decision 	No. 	659.
Granted, 	disparaging 	remarks 	about 	an 	employee 	to 	an
employer 	by 	the 	exc·lusive 	representative 	does 	lend 	support 	to 	an
inference 	of 	unlawful 	motivation, 	but 	the 	statements 	themselves
do 	not 	constitute 	an 	independent 	violation 	of 	the 	Act.
Federation 	Conditioning 	Action 	on Membership
It 	was 	found, 	supra, 	that 	Perrone 	did 	not 	make 	the
statements 	Deglow 	attributed 	to 	him. 	As 	there 	was 	insufficient
evidence 	to 	determine 	the 	actual 	statement 	that 	Deglow
misinterpreted, 	there 	can 	be 	no 	conclusion 	drawn 	that 	(1) 	there
was 	an 	independent 	violation 	of 	the 	Act, 	or 	(2) 	that 	this
incident 	supported 	an 	inference 	of 	improper motivation 	on 	the
part 	of 	the 	Federation 	against 	either 	Deglow 	or 	any 	of 	the 	other
pre-67 	instructors.
18

Charging
	Party's
	Grievances
A
	union
	is
	not
	required 	to
	process
	a
	grievance
	if
	the
chances
	for
	success
	are
	minimal. 	(United 	Teachers
	of
	Los	
Ano
el
es
(Collins)
	(1982)
	PERE
	Decision
	No.
	258.)
Seniority
	Grievance
In
	1982,
	an
	ALJ
	held
	that
	Deglow's
	position
	on
	the
certificated
	employment
	register
	was
	a
	hypothetical 	issue
	and
that
	the 	Federation
	had
	legitimate
	reasons 	not
	to
	take
	it
	to
	the
Board
	of
	Review.
	(Los
	Rios
	College
	Federation
	of 	Teachers,
	Local
2279,
	CFT/AFT, 	AFL-CIO,
	supra,
	PERE
	Decision
	No.
	HO-U-147,
	pp.
39-40.)
	Although
	this
	decision
	is
	not
	precedential,
	it
	was
binding
	on
	the
	parties.
	The
	decision
	clearly
	shows
	that
	this
same
	issue
	was
	previously
	litigated
	and
	the
	position
	the 	pre-67
instructors
	are 	taking
	in
	this
	case
	was
	not 	supported
	by
	the
	ALJ.
Deglow
	insists
	that 	this
	grievance
	is
	different
	than
	the
1982
	matter
	as 	she
	is
	presently
	complaining 	about 	her
	position
	on
the
	certificated
	employment
	register,
	whereas
	before
	she
	was
complaining 	about 	not 	being 	placed
	on
	the
	register 	at
	all.
	This
argument
	sets. forth
	a
	distinction
	without
	a
	difference.
	The
certificated
	employment
	register,
	and
	the 	pre-67
	instructors'
positions
	on
	it,
	will
	only
	affect 	their
	employment
	status 	in
	the
unlikely
	event
	a
	reduction 	in 	force
	were
	to 	jeopardize
	their
continued
	employment
	status.
	Absent 	such
	a
	threat,
	which
	is
rather
	remote
	considering 	the 	years 	of
	seniority
	they 	have
	with
the 	District,
	the 	issue 	is
	only 	hypothetical.
19

The 	evidence 	supports 	a 	conclusion 	that 	the 	Federation's
decision 	not 	to 	take 	this 	grievance 	to 	the 	Board 	of 	Review 	was
neither 	without 	a 	rational 	basis 	nor 	devoid 	of 	honest 	judgement.
Longevity 	Pay 	Grievance
The 	Federation 	is 	not 	obligated 	to 	bargain 	a 	particular 	item
benefiting 	certain 	unit 	members. 	(Baker 	et 	al.)
Collateral 	estoppel 	traditionally 	has 	barred 	relitigation 	of
an 	issue 	if 	"(1) 	the 	issue 	necessarily 	decided 	at 	the 	previous
[proceeding] 	is 	identical 	to 	the 	one 	which 	is 	sought 	to 	be
relitigated; 	(2) 	the 	previous 	[proceeding] 	resulted 	in 	a 	final
judgment 	on 	the 	merits; 	and 	(3) 	the 	party 	against 	whom 	collateral
estoppel 	is 	asserted 	was 	a 	party 	or 	in 	privity with 	a 	party 	at
the. 	prior 	[proceeding]. 	[Citation. J" 	(People 	v. 	Simms, 	32
Cal.3d 	468, 	484 	[186 	Cal.Rptr. 	77] .)
In 	this 	case, 	the 	three 	part 	collateral 	estoppel 	test 	has
been 	met: 	(1) 	the 	identical 	issue, 	the 	20-year 	bonus, 	was
decided 	in 	a 	prior 	PERB 	proceeding; 	(2) 	the 	previous 	proceeding
resulted 	in 	a 	final 	judgment 	on 	the 	merits; 	and 	(3) 	the 	pre-67
instructors 	were 	parties 	to 	the 	prior 	proceeding. 	Thus, 	the
doctrine 	of 	collateral 	estoppel 	prohibits 	them 	from 	complaining
about 	the 	Federation 	breaching 	its 	duty 	of 	fair 	representation
when 	it 	failed 	to 	take 	the 	20-year bonus 	grievances 	before 	the
Board 	of 	Review.
The 	pre-67 	instructors 	are 	also 	barred 	by 	the 	provisions 	of
section 	3541.S(a) (1) 	(fn. 	5, 	p. 	7) 	which 	prohibit 	the 	issuance 	of
a 	complaint 	based 	on 	acts 	occurring 	more 	than 	six months 	prior 	to
20

the
	filing
	of
	the 	charge.
	The
	pre-67
	instructors
	are
	complaining
about
	Federation
	action 	that
	took
	place
	in
	the
	late
	1980s.
	PERB
determined
	in
	Baker
	et
	al.
	that
	the 	previous
	charge
	on
	this
subject
	was
	time-barred.
	There 	has 	been
	no
	credible
	evidence
	to
show
	that
	anything
	has
	occurred
	since
	that
	time
	to
	negate
	that
decision.
In 	addition, 	the
	evidence
	supports
	a
	conclusion
	that
	the
Federation's
	decision
	not
	to
	take
	this
	grievance
	to 	the
	Board
	of
Review
	was
	neither
	without
	a
	rational 	basis
	nor 	devoid 	of
	honest
judgment.
Retirement
	Records 	and
	Sick
	Leave
	Credit
	Grievances
Deglow's
	and
	the 	other
	pre-67
	instructors'
	retirement
	and
sick
	leave
	credit
	grievances
	complain
	of
	District
	action
	at
	the
time
	of
	its
	creation,
	long
	before 	the
	first
	CBA
	was
	executed.
Therefore, 	the 	Federation
	owes 	no
	duty 	of
	fair
	representation 	to
the 	pre-67
	instructors
	with
	respect 	to 	these 	matters.
	(San
Francisco
	Classroom Teachers
	Association,
	CTA/NEA
	(1983)
	PERB
Decision
	No.
	544.)
Any
	claim 	the 	pre-67
	instructors
	may
	have
	to 	sick 	leave
and/or 	retirement
	credits
	for 	pre-collective
	bargaining
	service
arises
	from
	District
	policy 	and/or 	Education
	Code
	provisions.
"The
	duty 	of
	fair
	representation
	does
	not 	extend
	to
	a
	forum
	that
has 	no
	connection 	with
	collective 	bargaining,
	"
	(Los
	Rios
College 	Federation 	of 	Teachers, 	Local 	2279,
	CFT/AFT, 	AFL-CIO
(1993)
	PERB
	Decision
	No.
	992.) 	"There
	is
	no
	duty 	of
	fair
representation
	owed
	to
	a
	unit
	member
	unless 	the 	exclusive
21

representative 	possesses 	the 	exclusive 	means 	by 	which 	such
employee 	can 	obtain 	a 	particular 	remedy. 	" 	(California
State 	Employees' 	Association 	(Darzins) 	(1985) 	PERB 	Decision
No. 	546-S.)
In 	addition, 	the 	grievances 	do 	not 	adequately 	allege 	a
violation(s) 	of 	CBA 	provisions. 	Deglow's 	retirement 	credit
grievance 	cites 	Article 	3 	and 	17 	as 	CBA 	provisions 	that 	were
alleged 	to 	have 	been 	violated. 	Article 	3 	does 	not 	mention 	STRS
contributions 	except 	in 	the 	retiree 	health 	benefit 	and 	pre
retirement 	workload 	areas. 	Article 	17 	is 	a 	one 	paragraph
statement 	that 	the 	parties 	agree 	not 	to 	discriminate 	against 	any
faculty 	member 	on 	the 	basis 	of 	race, 	color, 	creed, 	national
origin, 	religion, 	sex, 	age, 	sexual 	preference, 	political 	beliefs,
political 	activities, 	political 	affiliation, 	or 	marital 	status.
The 	allegation 	of 	a 	violation 	of 	these 	very 	general 	CBA
provisions, 	given 	the 	specific 	nature 	of 	the 	complaints 	about
inadequate 	retirement 	credits, 	is 	insufficient 	to 	meet 	the 	CBA
definition 	of 	a 	grievance 	(fn. 	4, 	p. 	5) 	and 	are, 	therefore, 	not
grievable.
The 	evidence 	supports 	a 	conclusion 	that 	the 	Federation's
decision 	not 	to 	take 	these 	grievances 	to 	the 	Board 	of 	Review 	were
neither 	without 	a 	rational 	basis 	nor 	devoid 	of 	honest 	judgment.
Summary
It 	is 	determined 	that 	the 	Federation 	did 	not 	breach 	its 	duty
of 	fair 	representation 	regarding 	allegations 	about 	(1) 	negative
comments 	by 	Perrone 	about 	Deglow, 	(2) 	informing 	Deglow 	that 	it
22

would
	only
	be
	interested
	in
	her 	grievances
	if
	she
	and
	the
	other
pre-67
	instructors
	became
	Federation
	members,
	(3)
	refusing 	to
pursue
	the
	subject
	grievances
	to
	a
	Board
	of
	Review
	hearing, 	or
(4)
	rejecting
	requests 	for 	reconsideration
	of
	this 	refusal.
PROPOSED
	ORDER
Based
	on
	the 	foregoing
	findings
	of
	fact,
	conclusions 	of
	law
and
	the
	entire
	record
	in
	this
	case,
	it
	is
	found
	that
	the
	Los
	Rios
College 	Federation
	of 	Teachers
	did
	not
	violate
	subdivision
	(b)
	of
section
	3543.6
	of 	the 	Educational
	Employment
	Relations
	Act.
	It
is
	ORDERED
	that
	all
	aspects
	of 	the
	charge
	and
	complaint
	in
	this
case
	are
	hereby
	DISMISSED.
Pursuant
	to 	California
	Code
	of
	Regulations,
	title
	8,
	section
32305,
	this
	Proposed
	Decision
	and
	Order
	shall
	become
	final
	unless
a
	party
	files
	a
	request 	for
	an
	extension
	of 	time
	to
	file
exceptions 	or
	a
	statement 	of 	exceptions 	with 	the
	Board
	itself.
This
	Proposed
	Decision
	was
	issued 	without 	the 	production
	of
a
	written 	transcript
	of
	the
	formal
	hearing.
	If
	a
	transcript
	of
the 	hearing
	is
	needed
	for
	filing
	exceptions,
	a
	request 	for
	an
extension
	of 	time
	to
	file
	exceptions
	must 	be
	filed
	with
	the
	Board
itself
	(Cal.
	Code
	of 	Regs.,
	tit.
	8,
	sec.
	32132).
	The
	request 	for
an
	extension 	of 	time
	must 	be 	accompanied 	by
	a
	completed
transcript
	order
	form
	(attached 	hereto).
	(The 	same
	shall
	apply
to
	any 	response 	to 	exceptions.)
In
	accordance 	with
	PERB
	regulations, 	the 	statement 	of
exceptions
	must 	be
	filed
	with 	the 	Board
	itself
	within
	20
	days 	of
service 	of
	this
	Decision 	or
	upon
	service 	of 	the 	transcript 	at
	the
23

headquarters 	office 	in 	Sacramento. 	The 	statement 	of 	exceptions
should 	identify 	by 	page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied 	upon 	for 	such 	exceptions. 	(Cal.
Code 	of 	Regs., 	tit. 	8, 	sec. 	32300.) 	A document 	is 	considered
"filed'' 	when 	actually 	received 	before 	the 	close 	of 	business
(5~00 	p.m.) 	on 	the 	last 	day 	set 	for 	filing 	". 	. 	or 	when 	sent 	by
telegraph 	or 	certified 	or 	Express 	United 	States 	mail, 	postmarked
not 	later 	than 	the 	last 	day 	set 	for 	filing 	. 	" 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	sec. 	32135; 	Cal. 	Code 	of 	Civ. 	Proc., 	sec. 	1013
shall 	apply.) 	Any 	statement 	of 	exceptions 	and 	supporting 	brief
must 	be 	served 	concurrently 	with 	its 	filing 	upon 	each 	party 	to
this 	proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy
served 	on 	a 	party 	or 	filed 	with 	the 	Board 	itself. 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	secs. 	32300, 	32305 	and 	32140.)
Law 	Judge
24