Chula Vista City School District (PERB 0256E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHULA 	VISTA 	ELEMENTARY 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
CHULA VISTA CITY 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1233
PERB Decision No. 	256
November 8, 	1982
Appearances; 	Charles R. 	Gustafson, 	Attorney for Chula Vista
Elementary Education Association, 	CTA/NEA; 	Richard J. 	Currier
and Martha Geiger, Attorneys 	(Littler, Mendelson, Fastiff &
Tichy) 	for 	Chula Vista City School District.
Before Gluck, Chairperson; 	Jaeger and Jensen, Members.
DECISION
GLUCK, 	Chairperson: 	The Chula Vista Elementary Education
Association, 	CTA/NEA 	(CVEEA or Association) 	excepts 	to 	the
hearing 	officer's 	decision dismissing 	its 	charges 	that 	the
Chula Vista City School District 	(District) 	violated
subsections 3543.5(a), 	(b) 	and 	(d) 	of the Educational
Employment 	Relations Act 	(EERA)1 	by 	assisting 	an 	employee
1The 	EERA 	is 	codified 	at Government 	Code 	sections 	3540
et 	seq. 	All 	references 	will 	be 	to 	the Government Code 	unless
otherwise 	noted.
Subsections 3543.5(a), 	(b) 	and 	(d) provide:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or otherwise
)
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in 	filing 	a 	grievance 	which 	would 	create 	dissension among 	unit
members, 	thus 	interfering with 	the 	administration of 	the
Association.
The 	District 	excepts 	to 	the 	hearing officer's 	failure 	to
award 	it attorneys' 	fees.
FACTS
Ann Shore, 	a 	former CVEEA officer, 	filed a grievance 	in
late June 	1980, 	protesting the 	transfer of Jo Buchanan, 	a
newly-appointed Association official, 	to a position on Shore's
elementary 	reading 	teaching 	team. 	Shore 	believed 	that 	in
choosing Buchanan, 	the District did 	not 	select 	the most
qualified 	person, 	and 	thereby 	violated 	the 	transfer 	provisions
of 	the 	negotiated 	agreement 	between 	the Association 	and 	the
District. 	The 	agreement permits 	either 	employees or 	the
Association 	to 	file grievances. 	The process calls 	for
to 	interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate 	or 	interfere with 	the
formation 	or 	administration of 	any employee
organization, 	or contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to 	another.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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three 	steps 	and provides 	that 	an 	individual may choose 	a
representative other 	than 	the Association, 	although 	the 	latter
has 	a 	right 	to be present 	at grievance meetings. 	Grievances
are 	filed 	directly with 	the District which 	then 	forwards 	a copy
to 	the Association. 	The grievance 	form does 	not 	indicate
whether 	the 	grievant 	is 	represented 	by 	the Association.
The District's practice 	is 	to 	contact 	the grievant directly 	to
set 	up 	initial 	meetings.2 The Association 	had 	never 	objected
to 	the District making 	these direct 	contacts.
Shore's 	grievance 	stated 	no 	facts 	and made 	no 	reference 	to
Buchanan. 	It 	only 	alleged 	violations 	of 	particular 	contract
provisions 	concerning 	transfers, 	and 	that 	the District had
transferred 	an 	employee 	who did 	not meet 	the 	qualifications
stated 	in 	the 	posted 	job announcement. 	On July 	2, 	Tom Ciolli,
the Association's grievance 	chairperson, 	met with Shore. 	He
suggested 	that 	she 	attach 	a chronology of 	events 	to 	the
grievance. 	On 	the 	same 	day, 	the 	two met with
Dolores Ballesteros, 	the District's 	representative 	assigned 	to
2Several witnesses 	familiar 	with 	the 	grievance 	procedure
attested 	to 	this practice. 	The Association's witness who
claimed 	that 	the District 	always contacted 	the Association
rather 	than 	the 	grievants 	had 	primarily 	worked 	on grievances
filed 	on 	behalf 	of 	the Association. 	Cross-examination 	revealed
that this witness, 	in fact, 	didn't know 	if 	the District
contacted 	individuals 	in 	addition 	to 	the Association 	in order
to 	set 	up meeting 	times.
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hear 	the matter. 	Ballesteros 	informed 	them 	that because 	she
would be on vacation, 	she would pass 	the 	grievance 	along 	to
Joe 	Zampi, 	District 	coordinator of 	negotiations. 	Neither Shore
or 	Ciolli 	objected 	to 	this. 	Ballesteros 	also suggested 	that
Shore 	add 	a 	factual 	statement 	to 	the 	grievance 	in order 	to make
it more comprehensible.
Zampi 	called Shore 	on July 7 	to 	set 	up a 	time 	to hear 	the
grievance. 	According 	to his 	testimony, 	she asked him what he
thought of 	the grievance. 	He 	replied 	that, 	although he didn't
know 	the 	facts 	and didn't 	want 	to pre-judge 	the matter, 	the
past 	practice 	had 	been 	to 	deny 	grievances 	alleging 	improper
transfers 	unless 	drastic differences 	in 	employee qualifications
were 	shown. 	According 	to Shore 	and 	Zampi, 	no further
discussion of 	the merits of 	the grievance or 	its 	contents
occurred.
Later, 	Shore 	contacted Ciolli 	regarding a meeting 	time and
recounted 	her 	conversation with 	Zampi. 	According 	to Ciolli,
Shore's 	description 	of 	the 	conversation portrayed 	Zampi 	as
"coaching" 	her 	on processing 	her 	case. 	For 	example, 	supposedly
he 	gave 	her 	examples of 	grievances 	in which vast differences 	in
qualifications 	were 	shown. 	We 	credit 	the 	Zampi-Shore 	account
of 	their 	telephone 	conversation. 	They were 	the 	direct
participants 	in 	the 	conversation.
On July 10, 	Ciolli 	wrote 	Zampi, 	protesting his giving Shore
advice 	on 	how 	to proceed 	with 	the 	grievance 	and 	accusing 	him of
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meddling 	in Association 	affairs. 	The 	letter 	concluded 	by
stating 	that 	the 	rewrite 	of 	the 	grievance would 	be withheld
until Ballesteros 	returned 	and 	would 	be 	filed 	with 	her 	rather
than 	Zampi. 	It was 	from this 	letter 	that 	Zampi 	learned 	that
Buchanan 	had 	been 	appointed 	to 	the 	position 	concerning 	which
Shore 	was 	grieving. 	The Association urges us 	to 	attribute 	to
Zampi 	other 	administrators' 	knowledge 	that Buchanan was 	the
subject of 	the 	grievance. 	We do not. 	There 	is 	no evidence
supporting 	such 	a 	finding 	nor 	any 	legal 	principle 	which
requires 	us 	to 	attribute 	the 	knowledge of one 	administrator 	to
another.
Shore, 	who had 	not 	seen 	the 	letter 	before Ciolli 	sent 	it,
complained 	to 	Ciolli 	when 	she 	received 	a copy on July 	11.3
The 	following 	day, 	she 	wrote 	to 	the Association president
protesting 	Ciolli's 	letter 	and 	informing 	the Association 	that
she 	believed 	it 	would 	be 	in her 	best 	interest 	to 	represent
herself 	unless 	the Association was willing 	to provide 	another
representative. 	She was 	notified 	by Ciolli 	on July 	17 	that 	the
Association would 	not 	be doing 	so.
Shore 	then 	sought 	the 	individual 	assistance 	of 	a 	former
CVEEA 	grievance 	committee 	chairperson 	and 	filed 	a 	completed
grievance 	on July 	21. 	Ciolli 	attended 	subsequent meetings
3ciolli 	claims 	that 	he 	discussed 	with Shore 	writing 	a
letter 	to 	Zampi 	before 	he did 	so. 	Shore 	doesn't 	confirm or
deny this 	but, 	at 	the 	very least, 	she did not 	see a copy of 	it
before 	it was 	sent 	to Zampi.
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between 	the District 	and Shore 	as 	the Association observer.
The 	grievance 	was 	denied 	on 	the 	ground 	that Shore 	had 	no
standing 	to 	complain about 	someone 	else's 	transfer.
CVEEA 	filed 	this 	unfair 	practice 	charge 	in October 	1980.
In 	its 	exceptions 	to 	the proposed dismissal, 	CVEEA essentially
re-asserts 	that 	Zampi, 	by his 	conversation with Shore,
discriminated 	against 	other 	unit 	employees 	by aiding 	Shore 	in
writing 	her 	grievance 	in 	a manner 	which 	negatively 	affected
other 	unit members, 	denied CVEEA 	its 	right 	to 	represent 	its
members, 	and 	interfered 	with 	its 	administration.
CVEEA presented 	no 	evidence 	to 	support 	its 	allegation 	that
Ballastros 	had met 	with 	Shore 	and 	a 	representative who was 	not
authorized 	to act on behalf of 	the Association. 	Instead, 	CVEEA
now claims 	it 	raised 	this 	in 	its 	pleadings 	as mere 	background
information.
We dismiss 	the 	charge 	in 	its 	entirety.
DISCUSSION
CVEEA 	argues 	that 	by 	dealing 	directly with 	Shore 	outside
the grievance 	format, 	the District 	interfered with 	the
Association's 	administration 	by 	causing 	her 	to 	rewrite 	the
grievance. 	CVEEA 	contends 	that 	the District 	should 	not be
allowed 	to 	promote 	divisiveness 	within 	the 	unit 	or 	the
Association 	by 	encouraging 	one member 	to 	challenge 	the 	job
qualifications of 	another. 	Further, 	CVEEA claims 	that 	Zampi's
remarks 	caused 	Shore 	to 	abandon Association 	representation
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after 	Ciolli 	sent 	the 	letter 	asserting CVEEA's 	right 	to control
the 	grievance-writing process 	and 	to 	be present 	at all meetings.
Zampi's 	initial 	contact 	with 	Shore 	conformed 	to District
past practice 	to 	which CVEEA had 	never 	objected. 	Zampi
understood 	from 	the 	reference 	to 	the 	contract provisions
allegedly 	violated 	that 	the 	grievance 	concerned 	a 	transfer. 	At
the 	time, 	he did 	not know of Buchanan's 	appointment. 	His 	brief
reference 	to 	the 	type of 	information on which 	such 	grievances
had 	turned 	in 	the 	past, 	coupled with his 	caveat 	that 	he did 	not
want 	to prejudge 	the matter 	absent 	the 	facts, 	do not amount 	to
an 	attempt 	to 	control 	the grievance 	or 	even 	to have Shore
rewrite 	it. 	Ciolli 	himself 	had 	suggested 	that Shore 	attach 	a
chronology of 	events. 	Ballesteros 	had 	indicated 	at 	an 	earlier
time 	that 	a 	factual 	statement would 	be helpful. 	The
Association 	and Shore 	were 	free 	to 	act 	upon Zampi's comments 	as
they 	saw 	fit. 	We 	find 	nothing 	in 	the 	Zampi-Shore 	conversation
to be discriminatory, 	coercive or 	otherwise unlawful.
Nor 	do we 	find 	that 	Zampi's 	statements 	unlawfully
discriminated 	against 	other 	unit members 	or 	interfered 	with 	the
administration 	of 	the Association 	by 	encouraging 	Shore 	to
demonstrate 	drastic differences 	in 	the qualifications of
candidates 	for 	transfer. 	Competing 	interests 	of 	employees
necessarily 	come 	into play 	where 	one 	employee 	protests 	the
selection of 	another. 	The 	collective 	bargaining 	agreement
between 	the 	parties 	recognizes 	comparative qualifications 	as 	a
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basis 	for 	selections. 	A management official's 	remark 	that 	such
complaints 	had 	not 	been 	successful 	in the past 	unless 	they
showed 	a 	great disparity 	in 	qualifications 	simply 	states 	the
facts. 	Absent 	independent proof of 	unlawful motive 	underlying
the 	statement, 	we cannot 	find 	it actionable.
Finally, 	we 	reject CVEEA's claim that 	the District caused
Shore 	to 	abandon Association 	representation. 	It 	is clear 	that
Shore 	dismissed Ciolli 	as 	her 	representative 	because of 	his
July 10 	letter 	to 	Zampi. 	It was 	this dissatisfaction 	and 	the
Association's 	refusal 	to provide 	another 	representative, 	not
employer 	intimidation, 	which 	caused 	her 	to 	seek help elsewhere.
Attorneys' Fees
In support of 	its claim for 	attorneys' 	fees, 	the District
argues 	that 	the charge was frivolous and, 	in part, 	false.
In Cumero v. 	King City High School District Association,
CTA/NEA, Et al., 	(3/3/82) 	PERB Decision No. 197, p. 	26, the
Board 	held 	that 	it 	would consider 	awarding 	attorneys' 	fees only
upon a 	showing 	that 	the 	defense 	to 	an 	unfair 	practice 	charge
was 	"without 	arguable merit." 	In Unit 	Determination 	for 	the
State of California 	(12/21/80) 	PERB Decision No. ll0c-S, p. 	41,
we 	held 	that 	fees 	would 	be 	awarded 	only where 	there 	was 	a
showing of 	"frivolous 	or 	dilatory 	litigation" 	and would 	be
denied 	" . . . 	if 	the 	issues 	are 	debatable 	and 	brought 	in good
faith." 	See also Heck's, 	Inc. 	(1974) 	215 NLRB 	765 	[88 LRRM
1049].
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We 	find 	that 	these 	standards 	are 	appropriate where, 	as
here, 	the party charged with 	an unfair practice seeks
attorneys' 	fees. 	They 	should 	be 	awarded 	only 	where 	the 	charge
is 	without 	arguable merit 	and was 	brought 	in bad 	faith.
We 	do 	not 	find 	this 	to be 	the 	case 	here. 	From CVEEA's
viewpoint, 	a member 	client, 	after meeting with management,
reported 	what 	appeared 	to 	be management's 	advice 	on 	the
requirements 	for 	a successful grievance, which, 	if 	followed,
would 	cause 	the 	grievant 	and 	the Association 	to 	attack 	the
qualifications 	of 	an Association 	official. 	We cannot 	say 	that
the 	incorrect 	conclusion CVEEA 	reached 	was 	so 	without
justification 	as 	to 	be 	characterized 	as 	frivolous.
Furthermore, 	we do 	not overlook 	the 	fact 	that 	it was
Zampi's 	gratuitous 	advice which 	triggered 	this 	chain of
events. 	Admittedly, 	he knew none of 	the facts; 	he could not
know 	on what 	theory CVEEA 	intended 	to prosecute 	the 	grievance.
Yet, 	he presumed 	to 	instruct Ms. 	Shore as 	to how 	it would
probably have 	to 	be 	handled.
If CVEEA's 	investigation leading 	to 	the charge 	left
something 	to be 	desired, 	it 	is 	also apparent 	that 	its best
source 	of 	information was 	a dissatisfied 	ex-client. 	Pursuit of
a weak case, 	as 	this surely was, 	does 	not constitute the
indefensible 	form of 	litigiousness 	which 	an 	award 	of 	attorneys'
fees 	is meant 	to discourage 	or 	remedy.
In the 	alternative, 	the District has 	asked 	for 	fees
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expended 	to 	defend 	the 	charge 	that 	it met 	with Shore 	and 	a
representative of 	hers 	not 	authorized 	by 	the 	exclusive
representative. 	Even 	if 	we were 	to 	find 	that 	this 	single
assertion was frivolously included in the charge, the District
has 	not 	shown 	an 	added 	burden 	in preparing 	its 	response
sufficient 	to 	justify 	apportioning 	attorneys' 	fees 	on 	so
selective a basis.
Lastly, 	the District 	excepts 	to 	the 	hearing officer's
failure 	to 	conclude 	that 	the 	subsection 	3543.5(b) 	charge was
totally lacking 	in proof, 	as he found 	the 	(a) 	and 	(d) 	charges
to be. 	We 	interpret his dismissal of 	the 	(b) 	charge 	to be 	for
lack of proof. 	In any event, 	we 	so decide here.
ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the Public Employment
Relations Board 	hereby DISMISSES 	the 	charge 	filed 	by 	the Chula
Vista Elementary Education Association, 	CTA/NEA 	against 	the
Chula Vista 	City School District.
Members 	Jaeger 	and 	Jensen 	concurred.
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