Los Rios College Federation of Teachers (Deglow) (PERB 1351E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW, )

Charging Party, ) Case No. SA-CO-426
)
v. ) PERB Decision No. 1351
)
LOS RIOS COLLEGE FEDERATION OF ) September 29, 1999

TEACHERS/CFT/AFT/LOCAL 2279,

Respondent.

weer SN

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

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Annette (Barudoni) Deglow
(Deglow) to a Board agent's partial dismissal (attached) of her
unfair practice charge. As amended, the charge alleged that the
Los Rios College Federation of Teachers/CFT/AFT/Local 2279
(Federation) breached its duty of fair representation in
violation of section 3544.9 of the Educational Employment
Relations Act (EERA).’ The charge also alleged that the
Federation interfered with her exercise of rights under EERA

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

'RERA_is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3544.9 provides:

The employee organization recognized or
certified as the exclusive representative for
the purpose of meeting and negotiating shall
fairly represent each and every employee in
the appropriate unit.

refused to submit her grievance 	to arbitration. 	In addition, 	the
charge alleges 	that 	the 	Federation 	caused or attempted 	to 	cause
the District to violate EERA section 3543.6 (a).2
2EERA section 3543 	states:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose 	of
representation on all matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall 	also have 	the 	right 	to 	refuse 	to 	join
or participate 	in the activities 	of 	employee
organizations 	and 	shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the public 	school
employer, 	except 	that once the employees 	in
an appropriate 	unit 	have 	selected an
exclusive 	representative and 	it 	has 	been
recognized pursuant 	to 	Section 	3544.1 	or
certified pursuant 	to Section 3544.7, 	no
employee 	in that 	unit may meet 	and negotiate
with the public 	school 	employer.
Any 	employee may at 	any 	time 	present
grievances 	to his 	employer, 	and have such
grievances adjusted, 	without 	the 	intervention
of 	the exclusive representative, 	as 	long as
the adjustment 	is 	reached prior to
arbitration pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is not 	inconsistent with the 	terms 	of a
written agreement 	then in effect; 	provided
that 	the public 	school 	employer shall 	not
agree 	to a 	resolution of 	the grievance until
the 	exclusive 	representative 	has 	received a
copy of 	the 	grievance and 	the proposed
resolution and has 	been given 	the 	opportunity
to 	file a response.
EERA section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause or attempt 	to cause a public
school 	employer to violate Section 3543.5.
22

The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
partial warning and dismissal 	letters, 	and Deglow's appeal. 	The
Board 	finds 	the partial 	warning and dismissal 	letters 	to be 	free
of 	prejudicial 	error and adopts 	them as 	the 	decision of 	the Board
itself.
(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.
ORDER
The partial 	dismissal 	charge 	in Case No. 	SA-CO-426 	is hereby
AFFIRMED.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
W
	3

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 23, 	1999
Annette Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice Charge No. 	SA-CO-426
PARTIAL DISMISSAL 	LETTER
Dear Ms. Deglow:
The 	above-referenced unfair practice charge was 	filed with the
Public Employment Relations Board on January 19, 	1999. 	The
charge alleges that 	the Los Rios College Federation of
Teachers/CFT/AFT/Local 2279 	(Federation) 	breached its duty of
fair representation, 	as guaranteed by the Educational 	Employment
Relations Act 	(EERA), 	Government Code section 3544.9, 	and thereby
violated EERA section 3543.6(b), 	when it refused to submit
Annette Deglow's grievance to arbitration. 	The charge also
alleges that the Federation violated EERA section 3543.6(a) 	when
it 	caused or attempted to cause 	the Los Rios Community College
District 	(District) 	to violate the EERA. 	This letter addresses
only the allegation that 	the Federation caused or attempted to
cause the District 	to violate the EERA.
I 	indicated to you in my attached letter dated June 2, 	1999, 	that
certain allegations contained in the charge did not 	state a prima
facie case. 	You were advised that if there were any factual
inaccuracies or additional 	facts which would correct 	the
deficiencies explained in that 	letter, 	you should amend the
charge. 	You were 	further advised that unless you amended these
allegations to state a prima facie case or withdrew them prior to
June 11, 	1999, 	the allegations would be dismissed.
On June 10, 	1999, 	you requested an extension of time to file an
amended charge, 	which was granted to June 17, 	1999. 	On June 15,
1999, 	you filed an amended charge.
The amended charge addresses 	the allegation that 	the Federation
caused or attempted to cause the District 	to violate EERA. 	The
charge alleges 	that by failing to represent you in your
employment matters with the District, 	the Federation 	"aided and
abetted" 	the District 	in its effort to violate and misapply
contract provisions concerning discrimination, 	academic 	freedom
and performance reviews. 	The charge contends that by its 	failure
to provide assistance 	in your dealings with the District, 	the
I

Partial Dismissal 	Letter
SA-CO-426
Page 2
Federation encouraged the District 	to 	issue you a negative
performance evaluation, 	violate your academic rights, 	terminate
your voice accommodation program 	(VAP) 	and deny you access to
District 	equipment 	and supplies necessary to develop a new VAP.
In essence, 	the charge asserts that the Federation breached its
duty of 	fair representation in failing to represent you in the
grievance and other matters and, 	thus, 	by failing to represent
you the 	Federation caused or attempted to cause 	the District 	to
violate your rights. 	You stated this is especially true since
the 	Federation and the District 	agreed to contract 	language which
prohibits you 	from being represented by outside counsel 	in your
employment 	dealings with the District when the Federation refuses
to represent you.1 As such, 	you argue the Federation has an
even greater obligation to 	step 	forward and take 	affirmative
action to prevent 	the District 	from violating your rights.
In order to state a violation of EERA section 3543.6(a), 	it must
be clear how and in what manner the Federation caused or
attempted to cause the District 	to violate the EERA. 	(American
Federation of State, 	County and Municipal 	Employees 	(Waters)
(1988) 	PERB Decision No. 	697-H; 	California School Employees
Association 	(Kotch) 	(1992) 	PERB Decision No. 	953.)
The charge does not provide 	facts which demonstrate how and in
what 	manner the 	Federation caused or attempted to cause the
District to discriminate or retaliate against you. 	You assert
that 	the Federation's 	inaction in failing to represent you in
matters before 	the District 	caused the District 	to violate your
rights in various ways, 	including issuing you a negative
performance evaluation, 	removing you from teaching Math 52,
terminating your VAP and denying you access 	to District 	equipment
necessary to develop a new VAP.
However, 	PERB case law, 	including those cases noted above, 	appear
to indicate that a union must 	take affirmative actions 	in its
attempt 	to cause an employer to violate the EERA. 	The 	facts
alleged in the 	charge 	fail 	to demonstrate 	that 	the Federation
affirmatively caused or attempted to cause 	the District 	to
discriminate against you. 	Therefore, 	this allegation fails to
state a prima facie case and must be dismissed.
((
'LLo	os 	Rios Community College District 	(Deglow) 	(1998) 	PERB
Decision No. 	1274; 	Los Rios College Federation of Teachers/
CFT/AFT Local 2279 	(Deglow) 	(1998) 	PERB Decision No. 	1275.)

ir
Partial 	Dismissal 	Letter
SA-CO-426
Page 3
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 Regs., 	tit. 	8,
sec. 	32635 (a) .) 	Any document filed with the Board must contain
the case name and number, 	and the original and five 	(5) 	copies of
all 	documents must be provided to the Board.
A document 	is 	considered 	"filed" 	when actually received before
the close of business 	(5 p.m.) 	on the last day set 	for filing or
when mailed by certified or Express United States mail, 	as shown
on the postal receipt or postmark, 	or delivered to a common
carrier promising overnight delivery, 	as 	shown on the carrier's
receipt, 	not later than the last day set for filing. 	(Cal. 	Code
Regs., tit. 8, sec. 32135(a); see also Cal. Code Regs., tit. 8,
sec. 32130.)
A document 	is 	also considered 	"filed" 	when received by facsimile
transmission before the close of business on the last day for
filing together with a Facsimile Transmission Cover Sheet which
meets the requirements of Cal. Code Regs., 	tit. 8, sec. 32135(d),
provided the filing party also places the original, 	together with
the required number of copies and proof of service, 	in the U.S.
mail. 	(Cal. Code. Regs., 	tit. 	8, 	secs. 32135(b), 	(c) 	and (d) ;
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
If you file a timely appeal of the refusal 	to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement 	in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must 	accompany each copy of 	a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will 	be 	considered properly 	"served" 	when personally
1(

Partial 	Dismissal 	Letter
SA-CO-426
Page 4
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed. 	A document 	filed by facsimile 	transmission
may be 	concurrently served via 	facsimile 	transmission on all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be 	in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at 	least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of the request upon each
party. 	(Cal. Code Regs., tit. 8, sec. 32132.)
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 Robin W. 	Wesley
Regional Attorney
Attachment
cc: 	Robert Perrone

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 2, 	1999
Annette 	Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice Charge No. 	SA-CO-426
PARTIAL 	WARNING 	LETTER
Dear Ms. Deglow:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board on January 19, 	1999. 	The
charge alleges that 	the Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279 	(Federation) 	breached its duty of
fair representation, 	as guaranteed by the Educational Employment
Relations Act 	(EERA), 	Government Code section 3544.9, 	and thereby
violated EERA section 3543.6(b), 	when it refused to submit
Annette Deglow's grievance to arbitration. 	The charge also
alleges that 	the Federation violated EERA section 3543.6(a) 	when
it 	caused or attempted to cause 	the Los Rios 	Community College
District 	(District) 	to violate EERA.
Ms. 	Deglow is employed as a part-time tenured instructor for the
District 	in the Mathematics Department of 	the 	Sacramento City
College. 	Ms. 	Deglow has previously engaged in numerous
activities deemed protected under EERA. 	For example, 	Ms. 	Deglow
has previously filed unfair practice charges 	against 	the
Federation, 	including a charge filed on October 28, 	1997 in which
a complaint 	was 	issued in March 	1998 	alleging interference with
Ms. 	Deglow's rights. 	Ms. 	Deglow also served as president of a
rival 	employee 	organization and participated 	in organizing
activities. 	In January 1998, 	Ms. 	Deglow distributed a notice to
bargaining unit members 	reminding them of 	the deadline 	for
requesting an agency fee 	rebate 	from the 	Federation. 	These
activities are well known to the Federation.
In the Fall 	1991 semester, 	Ms. 	Deglow began teaching a course in
Math 52 	Elementary Geometry. 	The District approved a multimedia
voice accommodation program which permitted Ms. 	Deglow to utilize
35mm slides, 	overhead transparencies and a voice amplification
system in her classroom.
On December 15, 	1994, 	Ms. 	Deglow received her faculty performance
review 	in which she was marked satisfactory 	in every category and

Partial 	Warning Letter
SA-CO-426
Page 2
received an overall 	satisfactory rating. 	On December 18, 	1997,
Ms. 	Deglow was given her next 	faculty performance review.
Ms. 	Deglow was marked unsatisfactory in seven categories and
received an overall 	unsatisfactory rating. 	The performance
report 	recommended that Ms. 	Deglow be removed from teaching the
Math 52 	course 	and reassigned to another math course 	for which
she had no 	accommodation program.
Ms. 	Deglow filed several grievances challenging her performance
review. 	On February 17, 	1998, 	Ms. 	Deglow wrote to the Federation
and requested that 	the union represent her in her grievances.
The Federation agreed to represent Ms. 	Deglow after she provided
additional 	supporting documentation, 	agreed to consolidate her
grievances 	into one and accepted the Federation's rewrite of the
grievance. 	On April 23, 	1998, 	the Federation filed a grievance
on behalf of Ms. 	Deglow challenging her performance review.
The grievance 	filed by the Federation on behalf of Ms. 	Deglow
charged that 	the District 	failed to provide explanations 	for the
"needs improvement" 	ratings in five categories, 	the 	"needs
improvement." 	ratings violated Ms. 	Deglow's academic freedom by
criticizing her textbook, 	lecture style and order of subjects
taught, 	and one 	"needs improvement" 	explanation demonstrated
discrimination against Ms. 	Deglow for her political activities.
Similar grievances 	challenging performance 	reviews were 	filed by
the Federation on behalf of 	two other instructors 	in the
Mathematics Department. 	Earl Stephens' 	grievance was filed on
January 22, 	1997. 	This grievance challenged the review timelines
and alleged that 	the 	review violated the grievant's 	academic
freedom by criticizing his 	textbook, 	methods of 	instruction and
his classroom presentation. 	Robert 	Plath's grievance was 	filed
by the Federation on January 12, 	1998. 	The grievance alleged a
failure to explain the 	"needs 	improvement" 	ratings and violation
of the grievant's academic 	freedom.
The Federation submitted the 	Stephens grievance 	to arbitration in
January 1998. 	The arbitrator's decision was 	issued on May 26,
1998, 	finding no violation of the grievant's academic 	freedom.
The 	Federation summarized the arbitrator's decision in its
August/September 1998 Union News. 	The article stated that claims
that 	an evaluation violates 	academic 	freedom are difficult 	to
support 	absent 	"clear and compelling evidence." 	The article
defined necessary clear and compelling evidence 	in support 	of 	an
academic freedom allegation as, 	" [s]tatements or written
documentation 	from peer review team members 	that 	disparage 	the
content of the course, 	the teaching methods, 	or the required

Partial 	Warning Letter
SA-CO-426
Page 3
text, 	where the instructor chooses the text are a few examples."
At the September 9, 	1998 meeting of the Federation's Executive
Board, 	the Federation decided not to submit Ms. 	Deglow's
grievance to arbitration. 	The Federation informed Ms. 	Deglow
that 	it believed it would not prevail 	in arbitration.
Ms. 	Deglow appealed the Executive Board's decision and on
September 23, 	1998 	the Federation Executive Board reaffirmed its
earlier decision not to take Ms. 	Deglow's grievance to
arbitration.
On or about October 21, 	1998, 	the Federation decided to submit
the Plath grievance arbitration.
Based upon the facts stated above, 	the allegation that the
Federation caused or attempted to cause 	the District 	to violate
the EERA fails to state a. prima facie case.
EERA section 3543.6(a) 	makes 	it unlawful 	for an employee
organization to:
Cause or attempt 	to cause a public 	school
employer to violate Section 3543.5.
The charge 	alleges 	that 	the 	Federation caused or attempted to
cause the District to violate EERA. 	However, 	the charge fails to
provide any facts which demonstrate that 	the 	Federation took
action to encourage or assist 	the District 	in discriminating or
retaliating against Ms. 	Deglow. 	The charge explains that the
District 	issued Ms. 	Deglow a negative performance review and the
District 	rejected Ms. 	Deglow's grievance challenging the
performance review. 	There are no facts, 	however, 	describing what
action the 	Federation took in causing or attempting to cause the
District to take these steps. 	Accordingly, 	this allegation fails
to state a prima facie case and must be dismissed.
For these reasons 	the allegation that 	the Federation caused or
attempted to cause the District 	to violate EERA, 	as presently
written, 	does not state a prima facie case. 	If there are any
factual 	inaccuracies 	in this 	letter or additional 	facts which
would correct 	the deficiencies 	explained above, please 	amend the
charge. 	The amended charge 	should be prepared on a standard PERB
unfair practice 	charge 	form, 	clearly labeled First Amended
Charge, 	contain all the facts and allegations you wish to make,
and be 	signed under penalty of perjury by the 	charging party.
The amended charge must have 	the 	case number written on the 	top
right hand corner of 	the charge 	form. 	The amended charge must be
served on the 	respondent's 	representative and the original proof
of service must be 	filed with PERB. 	If I do not 	receive an
( 	((

Partial 	Warning Letter
SA-CO-426
Page 4
amended charge or withdrawal from you before June 11, 	1999. 	I
shall dismiss 	the above-described allegation from your charge.
If you have any questions, 	please call me at 	(916) 	327-8385.
Sincerely,
Robin W. Wesley
Regional Attorney