Los Rios Community College District (Deglow) (PERB 1274E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW,

Charging Party, Case No. SA-CE-1778
v. PERB Decision No. 1274
LOS RIOS COMMUNITY COLLEGE DISTRICT, July 20, 1998

Respondent.

ee ee ee ee ee ee

Appearances: Annette (Barudoni) Deglow, on her own behalf;
Steven W. Bruckman, Attorney, for Los Rios Community College
District.
Before Caffrey, Chairman; Johnson and Dyer, Members.
DECISION

JOHNSON, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Annette (Barudoni)
Deglow (Deglow) to a Board agent’s dismissal (attached) of her
unfair practice charge. Deglow filed an unfair practice charge
alleging that the Los Rios Community College District (District)

interfered with her exercise of rights under section 3543 of the

Educational Employment Relations Act (EERA),! in violation of

‘EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. 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

section
	3543.5(a)
2 when
	it
	agreed
	to 	contract
	language
	that
limits
	individual
	grievants' 	right
	to
	representation
	at
	grievance
meetings.
After 	investigation,
	the
	Board
	agent 	dismissed
	the
	charge
for
	failure
	to
	establish
	a
	prima
	facie
	case.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case,
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
	presentgrievances
	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.
2
EERA
	section
	3543.5
	states, 	in 	pertinent 	part:
It
	shall
	be 	unlawful
	for
	a
	public 	schoolemployer
	to
	do 	any 	of 	the 	following:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
on 	employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to 	interfere
	with,
	restrain, 	or 	coerceemployees 	because 	of
	their 	exercise 	of
	rightsguaranteed by
	this 	chapter. 	For 	purposes 	of
this 	subdivision,
	"employee" 	includes 	an
applicant 	for
	employment
	or 	reemployment.
2

including 	the
	original
	and
	amended
	unfair 	practice
	charge,
	the
Board
	agent's
	warning
	and
	dismissal
	letters,
	Deglow's
	appeal,
	and
the
	District's
	response.
	The
	Board
	finds 	the
	warning
	and
dismissal
	letters
	to
	be
	free
	of
	prejudicial 	error
	and
	adopts
	them
as
	the 	decision
	of
	the
	Board
	itself.
3
ORDER
The
	unfair 	practice
	charge
	in
	Case
	No. 	SA-CE-1778
	is
	hereby
DISMISSED
	WITHOUT 	LEAVE
	TO
	AMEND.
Member
	Dyer
	joined
	in
	this
	Decision.
Chairman
	Caffrey's
	concurrence
	and
	dissent
	begins
	on
	page
	4.
3
The 	Board
	notes
	that
	the
	collective
	bargaining
	agreement
(CBA)
	in 	effect
	both
	prior
	and 	subsequent
	to 	the 	February 	7, 	1995
modification 	provided
	that
	employees 	could 	present 	grievances 	tothe
	District 	either
	alone 	or with 	the 	assistance 	of
	a
	union
representative.
	Accordingly, 	the 	February
	7
	modification
resulted 	in
	no
	objective
	harm
	to
	employee
	rights.
	The
	element 	of
adverse 	action 	lacking, 	the
	Board
	declines 	to 	find 	that 	the
District 	discriminated 	against
	Deglow
	because 	of 	her 	protected
activities
	when
	it
	negotiated
	a 	change
	in 	the 	language 	of 	the
CBA.
	(See 	Palo Verde 	Unified 	School
	District
	(1988) 	PERB
Decision
	No. 	689
	at 	p. 	12.) 
3

CAFFREY,
	Chairman,
	concurring
	and
	dissenting:
	I
	concur
	in
the
	majority's
	dismissal
	of 	the
	charge
	that
	the
	Los
	Rios
Community
	College
	District
	(District)
	unlawfully
	denied
	charging
party
	Annette
	(Barudoni)
	Deglow
	(Deglow)
	access
	to 	the
arbitration
	process.
	I
	further
	concur
	in
	the
	majority's 	denial
of
	the
	District's
	request
	that
	the
	Public
	Employment
	Relations
Board
	(PERE
	or
	Board)
	order 	sanctions 	against
	Deglow
	in
	this
case.
	However,
	I
	conclude
	that
	Deglow
	has
	stated
	a
	prima
	facie
case
	of
	unlawful
	interference
	and
	discrimination
	by
	the
	District
in violation
	of
	Section
	3543.S(a) 	of
	the 	Educational
	Employment
Relations
	Act
	(EERA).
	Therefore,
	I
	dissent
	from
	the
	majority's
dismissal
	of
	that
	portion
	of 	the
	unfair practice
	charge.
DISCUSSION
In
	November
	1996,
	Deglow
	filed
	a
	grievance 	with 	the
	District
and
	sought
	representation
	from
	the
	Los
	Rios
	College
	Federation
	of
Teachers,
	CFT/AFT
	Local
	2279
	(Federation).
	The
	Federation
declined 	to 	represent
	Deglow
	in
	the 	grievance.
On
	February 	3,
	1997, 	Deglow
agreed
	to
	a
	February
	12
	meeting
with
	the
	District
	concerning
	the 	grievance.
	Deglow
	advised 	the
District 	that
	an
	attorney
	would 	accompany
	her 	to
	the 	meeting.
On
	February
	7, 	1997,
	the
	District
	and
	the 	Federation 	agreed
to
	modify
	the 	portion
	of
	their 	collective 	bargaining 	agreement
(CBA)
	concerning 	representation 	in 	the 	grievance 	process. 	Prior
to 	the 	modification,
	CBA
Article 	13.2.1.1 	described 	an 	employee's
right 	to 	representation 	as:
At
	the 	Informal, 	College 	and
	District 	levels,the 	grievant
	may
	choose
	either:
4

a.	
to
	be
	represented
	accompanied
	by 	[a
Federation] 	agent,
	or
b.	
to
	be
	represented
	by
	herself
	or
	himself
alone.
The
	February
	7
	CBA
	modification
	changed
	Article
	13.2.1.1
	to
describe 	the
	right
	to 	representation
	as 	follows:
At
	the
	Informal, 	College,
	and
	District
levels,
	the 	grievant
	may:
a.
	request
	[Federation]
	representation.
	If
the
	[Federation] 	agrees
	to 	represent
	at
	theInformal, 	College,
	or
	District
	level,
	nocommitment
	to
	pursue
	the 	grievance
	to
	a
	Board
of
	Review
	is
	implied.
OR
b.
	represent
	herself
	or 	himself 	alone.
This
	option 	applies 	to
	situations 	in
	which
the 	grievant
	does
	not 	request
	[Federation]
representation 	or 	to 	situations
	where
	the[Federation] 	denies
	a
	representation 	request.
On
	February
	10, 	1997,
	the
	District
	advised
	Deglow
	of
	the
	CBA
modification
	and
	told
	her
	that,
	as
	a
	result
	of
	the
	change,
	the
attorney
	she
	had
	planned
	to 	bring 	to 	the 	February
	12
	grievance
meeting 	could 	not
	attend.
On
	March
	3,
	1997,
	Deglow
	filed
	the
	instant 	unfair 	practice
charge
	alleging,
	among
	other 	things,
	that
	the
	District
	unlawfully
retaliated
	against 	her
	and
	interfered
	with 	her
	EERA-protected
rights
	by
	agreeing 	to
	a
	CBA
	modification
	which
	deprived 	her 	of
assistance 	in 	the 	presentation 	of 	her 	grievance.
	Deglow
	asserts
that 	she 	has
	a
	right 	to 	obtain 	assistance 	in 	the 	exercise 	of 	the
right 	to 	self-representation 	in 	grievances 	provided by
	EERA
section
	3543, 	which
	states 	in pertinent 	part:
5

Any
	employee
	may
	at
	any
	time
	present
grievances
	to 	his
	employer,
	and 	have
	such
grievances
	adjusted,
	without
	the
	intervention
of
	the 	exclusive
	representative,
	as
	long
	as
the
	adjustment
	is
	reached
	prior
	to
arbitration
	pursuant
	to
	Sections
	3548.5,
3548.6, 	3548.7,
	and
	3548.8
	and
	the
	adjustment
is
	not
	inconsistent
	with
	the
	terms
	of
	a
written
	agreement
	then
	in 	effect;
	provided
that
	the 	public
	school
	employer
	shall
	not
agree
	to
	a
	resolution
	of
	the 	grievance
	until
the 	exclusive
	representative
	has
	received
	a
copy
	of
	the 	grievance
	and
	the
	proposed
resolution
	and
	has 	been
	given
	the 	opportunity
to
	file
	a
	response.
The 	Board
	has
	addressed
	itself
	on
	several
	occasions
	to
	the
issue 	of 	the
	limitations
	on
	the
	employee
	right
	to
	grievance
	self-
representation
	provided
	by
	EERA
	section
	3543. 	For 	example,
	the
Board
	has 	held
	that
	an
	employee
	has
	no
	right
	to
	be
	represented 	in
a
	grievance
	by
	a
	representative
	of
	a
	competing 	employee
organization
	(Mount
	Diablo 	Unified
	School
	District. 	et 	al.
	(1977)
EERB
	Decision
	No. 	44
1
);
	that
	the
	right 	to
	self
	representation 	in
grievances
	does
	not 	extend
	to 	the
	arbitration
	stage
	(Mt.
	Diablo
Unified
	School
	District
	(1978)
	PERB
	Decision
	No.
	68);
	and
	that
the 	exclusive 	representative
	does
	not 	breach
	its
	duty 	of
	fair
representation
	by
	refusing 	to
	provide 	an
	employee
	with 	the
representative 	or
	counsel 	of 	her 	choice 	(United 	Teachers
Los
	Angeles
	(Bracey} 	(1987)
	PERB
	Decision
	No.
	616).
In 	dismissing
	Deglow's 	charge, 	the
	Board
	agent
	relies
	on
Chaffey
	Joint
	Union 	High 	School
	District
	(1982)
	PERB
	Decision
1
Prior 	to 	January 	1, 	1978,
	PERB 	was 	known
	as 	the 	EducationalEmployment
	Relations 	Board
	(EERB).
6

No.
	202
	(Chaffey
	Joint
	Union)
	to
	conclude
	that
	the
	District's
agreement
	to
	the
	CBA
	modification
	which
	denied
	Deglow
	the
	right
to
	assistance 	in
	the
	presentation
	of
	her
	grievance 	did
	not
constitute
	a
	prima
	facie
	violation
	of
	the
	EERA.
In
	Chaffey
	Joint
	Union,
	the
	Board
	considered
	whether
	EERA
section
	3543
	permitted
	a
	contract 	provision
	which
	limited
	an
employee's
	right
	to
	be
	assisted 	in
	a
	grievance
	to
	a
representative 	selected
	by
	the 	exclusive
	representative.
	The
Board
	concluded
	that
	the 	contract 	provision
	was
	not 	unlawful,
finding
	that
	it
	was
	consistent
	with
	EERA's
	objective
	of
	providing
for 	continuity
	and
	stability
	in
	employer-employee
	relations
through
	exclusive 	representation.
	Importantly, 	the
	Board
	in
Chaffey
	Joint
	Union
	did 	not 	consider
	whether
	EERA
	section
	3543
permitted
	a
	contract 	provision 	indicating 	that
	an
	employee
	could
have 	no
	assistance 	in 	the
	self-representation
	of
	a
	grievance.
More
	recently 	in
	Valley 	of 	the
	Moon
	Teachers
	Association,
CTA/NEA
	(McClure) 	(1996)
	PERB
	Decision
	No.
	1165,
	the
	Board
considered
	an
	allegation 	that
	the 	exclusive 	representative
violated
	its
	duty 	of
	fair
	representation
	by
	refusing 	to 	share
information with 	the 	private
	counsel
	retained
	by
	an
	employee
	who
was
	representing 	herself 	in
	a
	grievance.
	While
	the 	charge
	was
dismissed, 	the
	Board
	declined 	to
	hold
	that 	the
	employee
	did 	not
have
	the 	right 	to 	the 	assistance 	of 	counsel
	in
	grievance
	self-
representation. 	Instead, 	the
	Board 	emphasized
	that
	it
	"has 	never
held 	that 	the
	EERA
	entitles
	an 	exclusive 	representative 	to
interfere 	with
	a
	member's
	selection 	of 	private 	counsel."
7

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

her
	choice. 	Clearly, 	there
	is
	nothing
	in
	any
	of
	the
	cases
	cited
above
	which
	equates
	to 	the
	circumstances
	in
	the 	case
	at
	bar.
Consequently,
	the
	prior
	cases
	do
	not
	lead 	to 	the 	conclusion
	that
the
	District
	can
	act 	to
	deny
	Deglow
	any
	assistance 	or
	counsel
	in
her 	grievance
	self-representation
	after
	the 	Federation
	has
declined 	to 	represent 	her.
EERA
	section
	3543
	provides
	employees
	the
	right 	to
	self-
representation 	in
	grievances.
	While
	that 	right
	is
	not
	unlimited,
it
	must
	include 	the
	right
	of 	the
	grievant 	to 	obtain
	assistance
	or
counsel
	in
	presenting
	a
	grievance
	when
	the 	exclusive
representative
	denies
	representation 	to
	the
	employee, 	and
	there
has 	been
	no
	indication 	that
	the
	assistance
	would
	in
	any
	way
compete
	or
	conflict
	with 	the
	authority
	and
	role
	of 	the 	exclusive
representative.
	These·
are 	the
	circumstances
	present 	in 	the
instant
	case. 	Therefore,
	I
	conclude
	that
	there
	has 	been
	a
showing
	of
	a
	prima
	facie 	violation
	of
	EERA
	in
	this
	case, 	based
	on
the 	theory
	that
	the
	District's
	conduct
	interfered
	with
	Deglow's
exercise
	of 	the
	EERA-protected
	right
	of 	grievance
	self-
representation
	(Carlsbad Unified
	School
	District
	(1979)
	PERE
Decision
	No.
	89),
	and based
	on
	the 	theory
	that
	the
	District
discriminated
	and
	retaliated
	against
	Deglow
	for 	her 	exercise 	of
EERA-protected
	rights
	(Novato
	Unified
	School
	District
	(1982)
	PERB
Decision
	No.
	210).
	I
	would
	reverse 	the
	Board
	agent's 	dismissal
of
	that 	portion 	of 	the 	unfair 	practice
	charge 	and
	issue
	a
complaint.
9

s~ATE
CJF
CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1
031
18th
Street, Room 1
02
Sacramento, CA
95814-4174
(91 6)
322-3198
April
	24,
	1997
Annette
	(Barudoni)
	Deglow8424
	Olivet
	Court
Sacramento,
	CA
	95826-3009
Re:
	NOTICE
	OF
	DISMISSAL
	AND
	REFUSAL
	TO
	ISSUE 	COMPLAINT
DENIAL
	OF
	REQUEST
	FOR
	SANCTIONS
Annette
	(Barudoni)
	Deglow
	v.
	Los
	Rios
	Community
	College
District
Unfair
	Practice
	Charge
	No.
	SA-CE-1778
Dear
	Ms.
	Deglow:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	with 	the
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	March
	3,
1997,
	alleges 	that
	the
	Los
	Rios
	Community
	College
	District(District) 	interfered
	with
	your
	exercise 	of
	rights
	under
Government
	Code
	section
	3543,
	thus
	violating
	Government
	Code
section
	3543.S(a).
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated April
	4, 	1997,
that 	the
	above-referenced 	charge
	did 	not
	state
	a
	prima
	facie
case.
	You
	were
	advised
	that,
	if
	there
	were 	any
	factualinaccuracies 	or 	additional 	facts
	which would
	correct
	the
deficiencies
	explained
	in 	that
	letter,
	you
	should
	amend
	thecharge.
	You
	were
	further
	advised
	that,
	unless
	you 	amended
	the
charge
	to 	state
	a
	prima
	facie
	case
	or
	withdrew
	it
	prior 	toApril
	14, 	1997,
	the 	charge
	would 	be
	dismissed.
Your
	subsequent
	request 	for 	additional
	time
	was
	granted,
	and 	on
April
	22,
	1997
	a
	First
	Amended
	Charge
	was
	filed.
Discussion
The
	First
	Amended
	Charge
	itself
	largely
	responds
	to 	the 	request
by
	the
	District 	that 	sanctions
	be 	awarded
	in 	this
	case
	against
yourself
	as 	Charging
	Party.
	The
	issue 	of 	whether
	sanctions 	areappropriate 	in 	this
	case
	is
	addressed 	below. 	In 	addition, 	the
First
	Amended
	Charge
	alleges 	that 	the 	request 	for 	sanctions
itself
	constitutes
	a
	reprisal 	or 	threat 	of 	reprisal 	in 	violationof 	the 	Educational
	Employment
	Relations
	Act
	(EERA) . 1	
Though
	the
Board 	has 	infrequently 	granted 	motions 	seeking 	attorneys' 	fees 	or
other 	sanctions,
	I 	am
	unaware 	of 	any 	cases 	which 	hold 	that
	a
request 	for 	sanctions 	by
	a
	party 	is 	itself
	an 	unlawful 	act, 	even
1
The 	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	etseq.

Dismissal
	Letter
SA-CE-1778
April
	24,
	1997
Page
	2
where
	the
	motion
	is
	denied.
	(See,
	for
	example,
	Los
	Angeles
Community
	College
	District
	(Watts)
	(1984)
	PERB
	Decision
	No.
	411
and 	Los
	Rios
	College
	Federation
	of
	Teachers
	(Deglow)
	(
1996)
	PERB ·
Decision
	No.
	1133.)
Also
	filed
	with 	the
	First
	Amended
	Charge
	was
	a
	letter
	which
largely 	consists
	of
	argument
	setting
	forth
	the 	public
	policy
issues
	which
	you
	believe
	the
	instant
	charge
	raises
	and
	how
	both
statutory
	and
	case
	law
	should
	be
	applied
	to
	those
	issues.
	The
letter
	further
	contends,
	however,
	that
	my
	April
	4,
	1997
	letter
contained
	one
	factual
	error,
	namely
	the 	statement
	on 	page
	one
	of
that
	letter
	that
	only 	the 	Federation
2
or
	District
	Chancellor
	may
appeal
	a
	Board
	of
	Review
	decision 	to 	the
	Board
	of
	Trustees.
Your
	letter
	correctly
	quotes 	the
	current
	written
	agreement
	as
providing,
	in Article
	13,
	Section
	13.4.3.5,
	that
	a
	"decision 	ofthe
	Board
	of
	Review
	. 	.
	shall
	become
	binding
	on
	all
	parties
unless
	appealed
	by
	the
	aggrieved 	or 	the 	Chancellor."
	[Emphasis
added.]
	However,
	the 	conclusory 	statement
	quoted
	from
	my
	April
4, 	1997
	letter
	relied
	on
	a
	reading 	of
	Section 	13.4.3.5 	in
	concert
with
	other 	relevant 	provisions 	of 	the
	agreement, 	as 	follows:
1. 	Section 	13.2.1.2
	states 	that,
	should 	the 	Federation
choose
	not
	to
	appeal
	to
	a
	Board
	of
	Review
	or 	the
	Board
of 	Trustees, 	the 	"administrative
	remedy
	of 	the
	grievant
shall
	be
	deemed
	exhausted."
2.	
The
	language
	of 	Section 	13.4.3.5
	which 	you
	quote
	is
found
	within 	Section 	13.4.3,
	which
	provides
	for
	a
	right
of 	appeal
	to
	a
	Board
	of
	Review
	by
	the 	Federation 	butnot
	by 	an
	individual 	grievant.
3. 	Section 	13.4.4 	expressly
	states 	that
	the 	Federation 	orthe 	Chancellor
	may
	appeal
	a
	decision 	of 	the
	Board
	of
Review
	to 	the
	Board
	of 	Trustees, 	but
	nowhere
	references
a
	right
	of 	appeal
	by 	an
	individual 	grievant.
Reading
	these 	provisions 	together,
	my
	conclusion 	remains
	that
	the"aggrieved" 	referenced
	by
	Section 	13.4.3.5
	is
	the 	Federation.
The
	additional
	argument 	submitted
	by
	letter
	consists 	of
	a
	review
of
	PERB
	case
	law 	and
	EERA
	language 	previously 	considered 	and
discussed 	in
	my
	April 	4,
	1997
	letter.
	I
	have 	considered 	yourarguments 	but
	still
	conclude
	that
	Chaffey
	Joint
	Union 	High 	School
District
	(1982) 	PERE
	Decision
	No. 	202
	(Chaffey)
	is 	applicableunder 	the 	facts 	of 	your 	case 	and 	requires 	dismissal 	of 	the
charge.
211
Federation
11
	herein 	refers 	to 	the 	Los 	Rios 	College
Federation 	of 	Teachers, 	exclusive 	representative 	of 	District
faculty 	employees.

Dismissal
	Letter
SA-CE-1778
April
	24,
	1997
Page
	3
Therefore,
	I
	am
	dismissing
	the
	charge
	based
	on
	the
	facts
	and
reasons 	discussed
	above
	as 	well
	as
	those 	contained
	in
	my
	April
	4,
1997
	letter.
Request
	for
	Sanctions
As
	noted
	above,
	the
	District
	argues
	that
	sanctions 	against 	the
Charging
	Party 	are 	appropriate
	in 	this
	case,
	citing
	Los
	Rios
College 	Federation 	of
	Teachers
	(Deglow)
	(1996)
	PERB
	Decision
	No.
1133
	(Deglow),
	Los
	Rios 	College
	Federation 	of
	Teachers,
	CFT/AFT
Local
	2279
	(Deglow)
	(1996)
	PERB
	Decision
	No.
	1137
	and
	Los
	Rios
College 	Federation 	of
	Teachers,
	CFT/AFT
	Local
	2279 	(Deglow)
(1996)
	PERB
	Decision
	No.
	1140.
	The
	District
	bases
	its
	request
	on
Charging
	Party's 	largely
	unsuccessful
	filing
	of
	five
	previous
unfair 	practice
	charges
	against
	the
	District
	and
	thirteen 	against
her 	exclusive 	representative;
	an
	alleged 	"pattern
	of
	abuse
	of
various 	legal
	processes
	that
	goes
	far
	beyond
	the
	norm;" 	and
	thecontention
	that
	the
	instant
	charge
	raises
	a
	question
	settled
	15
years
	ago
	in
	Chaffey.
The
	Board
	described 	the 	standard 	for 	sanctions
	in
	Los
	Angeles
Unified
	School
	District/California
	School
	Employees
	Association
(Watts)
	(1982)
	PERB
	Decision
	No.
	181a
	(LAUSD)
	as 	follows:
The
	Board
	notes
	that
	Mr.
	Watts 	has
	repeatedly
filed
	complaints
	which
	are
	virtually
identical 	in
	content
	to
	this
	despite
	theBoard's
	patient
	and
	adverse
	rulings.[Citations 	omitted.]
Mr.
	Watts' 	repeated
	raising
	of 	such
nonmeritorious 	complaints 	abuse 	Board
processes
	and wastes
	State 	resources.
Further, 	respondents
	must
	necessarily 	incur
expenses
	in
	time,
	effort
	and
	money
	incontinually
	defending
	against 	the
	same
charges. 	Accordingly, 	the
	Board
	sees
	fit
	toorder 	that
	Mr.
	Watts 	cease 	and
	desist
	from
filing
	complaints
	which merely
	raise 	facts
and
	questions 	of
	law which
	the
	Board 	has
already 	fully
	considered. 	Further,
	if
	such
complaints 	are 	filed 	in 	the 	future, 	the
	Board
will 	consider 	the 	possibility 	of 	assessing
Mr.
	Watts 	any
	litigation
	expenses 	incurred
	bya
	respondent 	while 	trying 	to 	defend 	againstsuch 	actions.
In 	Deglow, 	the 	Board 	emphasized 	that
	it 	is 	the 	"repeated
presentation 	of 	charges 	based 	on 	circumstances 	which 	have 	been
considered by 	the 	Board 	in 	related 	cases 	previously 	[which
suggest] 	an 	abuse 	of 	that 	process." 	Likewise, 	in 	Los 	Angeles
Unified 	School 	District 	(Watts) 	(1993) 	PERB 	Decision 	No. 	1013 	the

Dismissal
	Letter
SA-CE-1778
April
	24,
	1997
Page
	4
Board
	reversed
	a
	Board
	agent
1 s
	award
	of
	attorney
1
s
	fees,
	rulingthat
	the 	issues
	in
	the 	case
	were
	"properly 	before 	the
	Board"
	andhad
	"not
	been
	the
	subject
	of
	Board
	decisions 	in
	the
	past.
11
	(See
also
	Los
	Angeles
	Community
	College
	District
	(Watts)
	(1984)
	PERB
Decision
	No.
	411
	and
	United 	Teachers
	of
	Los
	Angeles
	(Watts)
(1993)
	PERB
	Decision
	No.
	1018.)
The
	facts 	at
	bar
	in
	the 	present
	case
	do
	not 	warrant
	a
	finding
that
	Charging
	Party
	is
	engaged
	in
	the 	kind 	of 	"repeated
presentation
	of
	charges"
	(Deglow)
	which
	are
	"virtually 	identical
in
	content
11
	to 	issues 	previously 	raised
	by
	her 	before 	the
	Board.
(LAUSD;
	see
	also
	Deglow.) 	While
	Chaffey
	was
	indeed 	decided
	some15
	years
	ago,
	it
	is
	certainly
	plausible
	that
	an
	individual
employee, 	even
	one
	experienced
	at
	representing
	herself
	before
PERB,
	could
	be 	unaware
	of 	the 	decision. 	In
	addition,
	it
	is
	the
role 	of
	PERB
	to
	determine
	when
	and
	how
	its
	case
	law
	applies 	to
the
	facts
	of
	a
	particular
	case.
	While
	the 	determination 	reached
above
	finds
	Chaffey
	to
	be
	controlling
	under
	the
	facts
	of 	the
instant
	case,
	it
	is
	also 	true 	that
	these
	facts
	are
	not
	identical
to 	those 	in
	Chaffey.
	Thus,
	the 	issue 	presented
	was
	one 	which
	is
"properly before 	the
	Board."
	(Los
	Angeles
	Uni£
ied
	School
District
	(Watts)
	(1993)
	PERB
	Decision
	No.
	1013.) 	For
	these
reasons,
	I
	conclude
	that
	Charging
	Party's
	conduct
	in
	filing 	this
charge
	does
	not
	fall
	within 	the
	ambit
	of 	the
	warning
	issued
	by
the
	Board
	in
	Deglow.
The
	record
	does
	not 	support
	a
	finding
	that
	Charging
	Party 	hasengaged
	in
	conduct 	which
	is
	"without 	arguable 	merit, 	frivolous,vexatious,
	dilatory,
	pursued
	in
	bad
	faith
	or
	otherwise
	an
	abuse
of 	process." 	(State 	of
	California
	(Office 	of 	the 	Lieutenant
Governor)
	(1992)
	PERB
	Decision
	No.
	920-S. 	See
	also
	Chula
	VistaCity
	School
	District
	(1990)
	PERB
	Decision
	No.
	834.)
	The
	request
for 	sanctions 	in
	this
	case
	is
	denied.
Right
	to
	Appeal
Pursuant 	to 	Public
	Employment
	Relations
	Board
	regulations,
	you
may
	obtain
	a
	review 	of
	this
	dismissal 	of 	the 	charge 	by
	filing
an
	appeal 	to 	the
	Board
	itself
	within 	twenty
	(20)
	calendar 	days
after 	service 	of
	this 	dismissal.
	(Cal.
	Code
	of 	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	To
	be
	timely
	filed,
	the 	original
	and
	five 	copiesof 	such 	appeal
	must 	be
	actually 	received 	by 	the
	Board
	itself
before 	the 	close 	of 	business
	(5
	p.m.)
	or 	sent
	by
	telegraph,
certified
	or 	Express 	United 	States 	mail 	postmarked 	no
	later
than 	the 	last
	date 	set 	for 	filing.
	(Cal.
	Code
	of 	Regs.,
	tit.
	8,
sec. 	32135.)
	Code
	of 	Civil 	Procedure 	section
	1013
	shall 	apply.
The
	Board's 	address
	is:
Public 	Employment
	Relations 	Board
1031 	18th StreetSacramento,
	CA 	95814

Dismissal
	Letter
SA-CE-1778
April
	24,
	1997
Page
	5
If
	you
	file
	a
	timely
	appeal
	of 	the
	refusal 	to 	issue
	a
	complaint,
any
	other 	party
	may
	file
	with 	the
	Board 	an
	original
	and
	five
copies
	of
	a
	statement
	in
	opposition 	within
	twenty
	(20)
	calendar
days
	following 	the 	date 	of
	service
	of 	the 	appeal.
	(Cal.
	Code
	of
Regs.,
	tit.
	8,
	sec.
	32635(b)
.)
Service
All
	documents
	authorized
	to
	be
	filed
	herein
	must
	also
	be
	"served"
upon
	all
	parties
	to
	the
	proceeding,
	and
	a
	"proof 	of
	service"
must 	accompany
	each
	copy
	of
	a
	document
	served
	upon
	a
	party 	or
filed
	with 	the
	Board
	itself.
	(See
	Cal.
	Code
	of 	Regs.,
	tit.
	8,
sec.
	32140
	for
	the 	required 	contents
	and
	a
	sample 	form.)
	The
document
	will
	be
	considered 	properly
	"served"
	when
	personally
delivered or 	deposited
	in
	the
	first-class
	mail, 	postage
	paid
	and
properly
	addressed.
Extension 	of
	Time
A
request 	for
	an
	extension 	of
	time,
	in
	which
	to
	file
	a
	document
with
	the
	Board
	itself,
	must 	be
	in 	writing
	and
	filed
	with
	the
Board
	at
	the 	previously
	noted 	address.
	A
request 	for
	an
extension
	must 	be
	filed 	at 	least
	three
	(3)
	calendar
	days
	beforethe
	expiration
	of 	the
	time
	required 	for
	filing
	the
	document.
The
	request
	must
	indicate
	good
	cause
	for
	and,
	if
	known,
	the
position
	of 	each
	other 	party
	regarding 	the 	extension,
	and
	shall
be 	accompanied 	by
	proof 	of 	service
	of 	the 	request
	upon
	each
party.
	(Cal.
	Code
	of 	Regs.,
	tit.
	8,
	sec.
	32132.)
Final
	Date
If
	no
	appeal
	is 	filed
	within 	the 	specified
	time
	limits,
	the
dismissal 	will
	become
	final
	when
	the 	time
	limits
	have
	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By
Les
L Chisholm
Regional 	Director
Attachment
cc: 	Steve
	W.
	Bruckman

STATE
OF
CALIFORNIA	
PETE
WILSON, Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
Sacramento Regional Office
1031
18th Street, Room
102
Sacramento, CA
95814-4174
(916)
322-3198
April	
4,	
1997
Annette
	(Barudoni)
	Deglow8424
	Olivet
	Court
Sacramento,
	CA
	95826-3009
Re:	
WARNING	
LETTER
Annette
	(Barudoni)
	Deglow
	v.
	Los
	Rios
	Community
	College
District
Unfair 	Practice
	Charge
	No. 	SA-CE-1778
Dear
	Ms.
	Deglow:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	with
	thePublic
	Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	March
	3,
1997,
	alleges 	that
	the
	Los
	Rios
	Community
	College
	District(District) 	interfered
	with 	your
	exercise 	of
	rights
	under
Government
	Code
	section
	3543,
	thus
	violating
	Government
	Code
section
	3543.S(a).
The
	relevant 	facts
	are 	as 	follows.
	You
	are
	employed 	by
	the
District
	in
	a
	bargaining
	unit
	represented
	by
	the
	Los
	Rios
	College
Federation 	of
	Teachers/CFT/AFT/Local
	2279
	(Federation).
	On
November
	13, 	1996, 	you
	filed
	grievance
	5-F96
	seeking
	correction
of
	an
	error
	regarding
	your
	first
	date 	of
	employment
	with 	the
District.
	You
	sought
	Federation 	representation
	on
	this
grievance, 	but 	the 	Federation 	declined 	to 	represent
	you.
Under
	the 	collective
	bargaining
	agreement 	between
	the
	District
and
	Federation, 	in 	Article
	13,
	the 	steps 	or 	levels 	in
	the
grievance 	procedure 	are 	defined
	as 	Informal, 	College,
	District,
Board
	of
	Review 	and Board
	of 	Trustees.
	The
	Board
	of
	Review
	level
is
	equivalent 	to 	advisory
	arbitration.
	A
grievance
	may
	be
	filed
by
	either
	a
	unit
	employee
	or 	the 	Federation
	itself.
	However,
only
	the 	Federation
	may
	file
	an 	appeal
	to
	a
	Board
	of
	Review,
	and
only
	the 	Federation 	or 	District
	Chancellor
	may
	appeal 	to 	the
Board
	of 	Trustees.
The
	current
	agreement
	indicates 	in 	Section 	13.2.1.1 	that
	a
grievant
	may
	choose,
	at
	the 	Informal, 	College 	and
	Districtlevels, 	either:
a. 	to
	be
	represented
	accompanied 	by 	[a
Federation] 	agent, 	or
b. 	to
	be
	represented 	by
	herself 	or 	himself
alone.

Warning
	Letter
SA-CE-1778
April
	4,
	1997Page
	2
The
	agreement
	further
	describes
	the
	Federation's
	right
	to
	have 	an
observer
	present
	at
	meetings
	between
	the
	grievant
	and
	District
where
	option
	"b"
	above
	is
	chosen,
	and
	the
	Federation's
	right
	to
be
	notified
	of
	and 	have
	the 	opportunity 	to
	comment
	on
	any
proposed
	settlement
	of
	a
	grievance.
Section
	13.2.1.2
	reads 	as
	follows:
At
	the
	Board
	of
	Review 	and 	Board
	of
	Trustees,the 	grievant
	must
	be
	represented
	by
	[the
Federation].
	Should
	[the 	Federation]
	choose
not
	to
	appeal
	to
	these
	levels,
	the
administrative
	remedy
	of 	the
	grievant
	shall
be
	deemed
	exhausted.
1
Prior
	to
	February
	3, 	1997,
2	
you 	and
	the
	District
	agreed
	on
	the
date
	of
	February
	12
	for
	a
	District
	level
	meeting
	on
	your
grievance.
	You
	advised 	the
	District 	that
	an
	attorney,
	Robb
Hewitt,
	would
	attend
	the
	meeting 	with
	you.
On
	February
	10,
	you 	were
	approached
	by
	a
	District
	representative,
who
	indicated 	that
	the
	District
	and
	Federation
	had
	modified
Article
	13
	and
	under
	its
	revised
	terms
	you 	would
	not
	be
	able
	to
have
	your
	attorney 	attend 	the
	February
	12
	meeting.
	The
	District
also 	provided
	you
	with
	a
	copy
	of 	the 	modified 	agreement,
	dated
February
	7,
	which
	reads 	as 	follows:
13.2.1.1
	At
	the 	Informal, 	College,
	and
District 	levels,
	the 	grievant
	may:
a. 	request 	[Federation]
	representation.
	If
	the[Federation] 	agrees 	to 	represent
	at
	theInformal, 	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
1
The
	foregoing
	citations 	to 	the 	agreement
	are 	based
	on
	the
copy 	on
	file
	in 	this 	office, 	pursuant 	to
	PERB
	regulation
	32120.The
	agreement 	on
	its
	face
	is 	effective 	for 	the 	period 	July 	1,
1996
	through 	June 	30, 	1999.
2
All 	dates 	referenced 	are 	in 	the 	calendar 	year 	1997, 	unlessotherwise 	specified.

Warning
	Letter
SA-CE-1778
April
	4,
	1997Page
	3
not
	request
	[Federation]
	representation 	or
	tosituations
	where
	the 	[Federation] 	denies
	a
representation 	request.
On
	February
	12,
	the
	District
	refused 	to
	allow
	Mr.
	Hewitt
	to
attend 	or
	participate
	in
	the 	grievance
	meeting.
	The
	District
also
	informed
	you
	that,
	under
	Article
	13, 	your
	grievance 	couldnot
	be
	considered
	for
	the
	arbitration
	(Board
	of
	Review)
	process
if
	the 	Federation 	declined
	to 	represent
	you.
On
	February
	24,
	you
	attempted
	at
	the
	employee's
	request
	torepresent
	a
	fellow
	District
	employee, 	Elmer 	(John)
	Sander,
concerning
	his
	grievance.
	The
	District
	again
	cited
	theFebruary
	7
	agreement
	as
	grounds
	for 	refusing 	to
	allow
	you
	to
participate 	in
	the
	meeting
	on
	Mr.
	Sander's 	grievance.
Discussion
Your
	charge
	alleges 	that
	both 	the 	denial 	of 	the 	opportunity 	to
have
	representation 	in
	a
	grievance
	meeting 	and
	denial 	of
	your
opportunity
	to
	take
	your
	grievance
	to
	arbitration
	without
Federation
	representation
	violates
	your
	rights
	under
	theEducational
	Employment
	Relations
	Act
	(EERA) . 3	
The
	legal 	theory
which 	must
	be
	considered
	under
	the
	facts
	of
	this
	case
	is
	whether
the
	District,
	by
	agreeing
	to
	and
	acting 	in
	accordance 	with
	the
contract 	provisions 	described
	above,
	unlawfully
	interfered
	with
the 	exercise 	of
	rights
	which
	are
	provided
	absolute 	protection
under
	the
	EERA.
[I]n 	order 	to
	establish
	a
	prima
	facie
	case 	ofunlawful
	interference,
	the 	charging
	party
must
	establish 	that
	the 	respondent's
	conduct
tends 	to 	or
	does
	result
	in
	some
	harm
	to
employee
	rights
	granted
	under
	EERA.
	(State
of 	California
	(Department
	of
	Developmental
Services)
	and
	Public 	Practice
	Bureau/
California
	Medical
	Association
	(1983)
	PERB
Decision
	No.
	344-S,
	citing
	Carlsbad 	UnifiedSchool
	District
	(1979)
	PERB
	Decision
	No.
	89;
Service
	Employees
	International
	Union, 	Local
99
	(Kimmett) 	(1979)
	PERB
	Decision
	No.
	106.)
Under
	the 	above-described
	test,
	a
	violation
	may
	only
	be 	found
	if
EERA
	provides 	the 	claimed
	rights. 	(Ibid.)
3
The
	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	etseq.

Warning
	Letter
SA-CE-1778
April
	4,
	1997
Page
	4
You
	cite
	EERA
	section
	3543,
	as 	well 	as
	Mount
	Diablo
	Unified
School
	District/Santa
	Ana
	Unified
	School
	District/Capistrano
Unified
	School
	District
	(1977)
	EERB4	
Decision
	No. 	44 	(Mount
Diablo
	I) 	and
	Mount
	Diablo
	Unified
	School
	District
	(1978)
	PERB
Decision
	No. 	68
	(Mount
	Diablo
	II),
	in
	support 	of
	your
contentions.
EERA
	section
	354-~
	provides
	in 	relevant
	part
	as
	follows:
Any
	employee
	may
	at
	any 	time
	presentgrievances
	to 	his
	employer,
	and 	have
	such
grievances 	adjusted,
	without 	the
	intervention
of 	the 	exclusive
	representative,
	as 	long 	as
the
	adjustment
	is
	reached
	prior
	to
arbitration
	pursuant
	to
	Sections
	3548.5,
3548.6, 	3548.7,
	and 	3548.8
	and
	the
	adjustment
is
	not
	inconsistent
	with 	the
	terms
	of
	a
written
	agreement
	then
	in
	effect;
	provided
that
	the 	public
	school
	employer
	shall
	not
agree
	to
	a
	resolution
	of 	the 	grievance
	until
the 	exclusive
	representative
	has
	received
	a
copy
	of 	the 	grievance
	and
	the
	proposed
resolution
	and
	has 	been 	given
	the 	opportunity
to
	file
	a
	response.
The
	two
	parts
	of 	your
	argument
	will
	be
	evaluated
	in 	light
	of
	thisstatutory
	language,
	and
	relevant
	precedent.
Access
	to 	Arbitration
In
	Mount
	Diablo
	II,
	the
	Board
	rejected
	the
	argument
	that 	the
right 	of 	self-representation
	extends
	to 	the
	arbitration
	process,quoting 	the
	language 	of
	EERA
	section
	3543
	and
	observing
	that:
On
	its
	face, 	the
	statutory 	right
	of
	self-representation
	falls
	short 	of 	the
	right 	to
resort 	to 	the
	arbitration
	process.
It 	is
	not
	clear
	what
	in 	the
	parties'
	February
	7
	agreement
	helped
clarify
	(or 	confuse) 	whether 	an
	individual
	employee
	could 	appeal
a
	grievance 	to 	the
	Board
	of
	Review
	level, 	as 	the 	collectivebargaining
	agreement
	already 	expressly 	provided
	that
	only 	the
Federation 	could
	file
	such 	an 	appeal.
4
Prior 	to 	January 	1, 	1978,
	PERB 	was 	known
	as 	the 	EducationalEmployment
	Relations 	Board 	(EERB).

Warning
	Letter
SA-CE-1778
April
	4,
	1997Page
	5
Under
	the
	statute
	and 	Board
	precedent,
	this
	contractual
limitation
	does
	not
	violate
	your
	section
	3543
	rights,
	and
	this
element
	of
	the
	charge
	must
	be
	dismissed.
Representation
	Other
	than
	by
	the
	Exclusive
	Representative
	or
	Self
Neither
	Board
	decision
	cited 	in
	your 	charge
	is 	directly
	on
	pointto 	the 	issue
	presented 	here.
	Mount
	Diablo
	I
	focused
	on
	whether
an 	employee,
	in
	a
unit 	exclusively 	represented
	by 	one 	employee
organization,
	could
	be
	represented 	in
	a
	grievance
	by
	a
representative
	of
	a
	different
	employee
	organization. 	All
	three
Board
	Members
	agreed
	in 	that
	case
	that
	an
	employee's
	right 	to
self-representation
	did 	not 	extend
	to 	representation
	by
	a
competing
	employee
	organization.
	While 	one 	Board
	Member's
concurring 	opinion
	touches
	on
	the 	issue 	presented
	by
	your
	charge,
the 	majority
	in
	Mount
	Diablo
	I
	did
	not 	address
	it.
As
	noted
	in
	the 	discussion
	above,
	Mount
	Diablo
	II
	addressed
	the
right 	of 	self-representation
	at
	the
	arbitration
	stage,
	and
	the
Board
	rejected
	the
	claimed
	violation
	based
	on
	the
	plain
	language
of
	EERA
	section
	3543.
In 	Chaffey
	Joint
	Union 	High
	School
	District
	(1982)
	PERB
	Decision
No.
	202
	(Chaffey),
	the
	Board
	addressed 	the
	issue 	of
	EERA
	section
3543's
	meaning
	under
	facts
	much
	like
	those
	presented
	in
	the
instant
	case.
	In
	that
	case,
	the
	employer 	and
	exclusive
representative
	had
	included
	in
	the
	collective
	bargaining
agreement
	the
	following
	provision:
The
	grievant
	has
	the 	right 	to
	be
	represented
by 	one
	authorized 	representative 	selected
	by
the 	[exclusive 	representative]
	at
	any
personal 	conference
	or
	formal
	hearing
requested
	by
	the
	grievant,
	as 	provided
herein,
	beyond
	the 	informal
	level.
When
	an
	affected
	employee
	sought 	grievance
	representation
	by
	a
person 	not 	authorized
	by
	the 	exclusive 	representative,
	and
	the
employer
	refused 	to 	process 	the 	grievance,
	a
	dispute
	much
	like
yours
	was
	presented 	for 	adjudication 	before 	the
	Board.
The
	hearing 	officer
	found
	for 	the 	charging 	party
	under 	the 	theory
that
	an
	individual 	has 	an
	indefeasible 	rightunder
	[EERA]
	to
	be
	represented 	during
	a
negotiated 	grievance 	proceeding by
	a
representative 	of 	the 	employee's 	choice 	so
long 	as 	that 	person
	is
	not 	an 	agent 	of 	an

Warning
	Letter
SA-CE-1778
April
	4,
	1997Page
	6
employee
	organization 	other
	than 	the
exclusive
	representative.
	[Chaffey
	at
	p.l.]
The
	Board
	reversed 	the 	hearing
	officer
	and
	dismissed 	the
	charge
in
	Chaffey,
	observing
	in 	pertinent 	part 	that:
The
	proviso
	of
	section	
3543	
makes
	it
	clear
that
	the 	exclusive
	representative
	has
	theduty
	to 	protect
	its
	authority
	as
	sole
	party
empowered
	to 	negotiate 	for
	the
	employees
	of
the
	unit
	on
	all
	matters 	of
	employment
relations.
	The
	negotiated
	agreement
	in
	the
Chaffey
	District
	does
	nothing
	to
	the
contrary, 	other
	than
	adjusting
	the
	time
	frame
for 	intervention.
In
	United 	Teachers
	Los
	Angeles
	(Bracey)
	(1987)
	PERB
	Decision
	No.
616,
	the
	Board
	dismissed
	a
	charge 	based,
	in 	part,
	on
	a
	finding
that
	an
	exclusive
	representative
	does
	not 	breach
	the 	duty
	of
	fair
representation
	by
	refusing 	to
	provide
	an 	employee
	with 	the
representative 	or
	counsel
	of 	her 	choice.
	However,
	Valley
	of 	the
Moon
	Teachers 	Association,
	CTA/NEA
	(McClure)
	(1996)
	PERE
	Decision
No.
	1165
	(Valley 	of 	the
	Moon),
	held:
[T]he 	Board
	has 	never 	held
	that
	the
	EERA
entitles
	an
	exclusive 	representative 	to
interfere
	with
	a
	member's
	selection
	of
private
	counsel. 	In
	fact,
	every
	publicschool
	employee
	has
	the
	right 	to 	presentgrievances 	to
	the 	public
	school 	employer
without 	the 	intervention
	of 	the 	exclusive
representative.
In 	Valley 	of 	the
	Moon
	the 	charging
	party 	alleged 	that
	the
exclusive 	representative 	failed 	to 	adequately 	represent 	her
	and
refused 	to 	provide 	information 	to
	an
	outside 	counsel 	she
	retained
both
	for 	contractual
	and
	non-contractual 	issues.
	These
	facts 	are
sufficiently 	different
	from
	those 	in 	the
	instant
	case
	and
	Chaffey
to 	warrant 	continued 	reliance
	on 	Chaffey,
	particularly
	as
	the
Board
	did 	not
	specifically 	reverse 	Chaffey. 	In 	addition, 	the
result 	in 	Valley 	of 	the
	Moon
	does 	not
	rely
	on
	the 	above-quoted
statement 	and 	the 	quoted 	language 	can
	therefore
	be 	considereddictum.
Based 	on 	the 	foregoing 	analysis 	of 	relevant
	Board
	decisions,
especially 	Chaffey,
	I
	find 	the
	District's
	agreement
	to 	contractlanguage, 	as 	well 	as 	District 	action 	complying 	with 	the 	contractlanguage, 	which 	denies 	employees 	the 	right 	to 	have
	a
representative 	of 	the 	employee's 	choice 	in 	grievance 	meetings

Warning
	Letter
SA-CE-1778
April
	4,
	1997
Page	
7
fails
	to
	state
	a
	prima
	facie
	violation
	and
	this
	element 	of
	the
charge
	must
	also
	be
	dismissed.
Conclusion
For
	these
	reasons 	the
	charge,
	as
	presently written,
	does
	not
state
	a
	prima
	facie
	case.
	If
	there
	are
	any
	factual 	inaccuracies
in
	this
	letter
	or 	additional
	facts
	which 	would
	correct
	the
deficiencies
	explained
	above,
	please
	amend
	the 	charge.
	The
amended
	charge 	should
	be
	prepared
	on
	a
	standard
	PERB
	unfair
practice
	charge
	form,
	clearly
	labeled
	First
	Amended
	Charge,
contain
	all
	the
	facts
	and
	allegations
	you
	wish
	to
	make,
	andbe
	signed
	under
	penalty
	of
	perjury
	by
	the
	charging
	party.
	The
amended
	charge
	must 	be
	served
	on
	the
	respondent
	and
	the
	original
proof
	of 	service
	must 	be
	filed
	with
	PERB.
	If
	I
	do
	not
	receive
	an
amended
	charge
	or
	withdrawal
	from 	you
	before 	April
	14,
	1997,
	I
shall
	dismiss
	your 	charge.
	If
	you 	have 	any
	questions, 	please
call
	me
	at
	(916)
	322-3198,
	extension
	359.
~
Les
	Chisholm
Regional
	Director