Los Rios Community College District (Deglow) (PERB 1048E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1592
PERB Decision No. 	1048
June 1, 	1994
Appearances: 	Annette M. 	Deglow, 	on her own behalf; 	Susanne M.
Shelley, 	General 	Counsel, 	for Los Rios 	Community College
District.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Annette M. 	Deglow 	(Deglow)
of 	a Board agent's 	dismissal 	(attached hereto) 	of 	her unfair
practice 	charge. 	In her charge, 	Deglow alleged that 	the Los Rios
Community College District 	(District) 	violated section 	3543.5(a)
of 	the Educational 	Employment Relations Act 	(EERA)1 by engaging
in acts 	of 	reprisal 	and discrimination against 	her because 	of 	her
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer 	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 coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
)
)
)
)
)
)
)
)
)
)
______________ )

exercise 	of protected rights.
The 	Board has 	reviewed 	the 	Board agent's 	warning and
dismissal letters, 	Deglow's appeal, 	the District's response and
the 	entire 	record 	in this 	case.2'3 The Board 	finds 	the warning
and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-1592 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Carlyle 	joined 	in 	this 	Decision.
2The 	Board declined 	to 	consider Deglow's 	supplemental 	brief,
and the District's 	opposition 	to 	it, 	which were 	filed after 	the
filing deadline.
3Member 	Carlyle 	did not 	consider Deglow's 	supplemental 	brief
for the 	reason that 	it did not 	contain newly discovered evidence,
newly discovered 	law, 	nor an 	explanation of 	why her brief 	should
be 	reviewed by the Board, 	as 	delineated 	in Vallejo Education
Association, 	CTA/NEA 	(1993) 	PERB Decision No. 	1015. 	Accordingly,
there 	was 	no need 	for him to 	consider 	the District's 	opposition.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramanto Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
February 18, 1994
Annette M. Deglow
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Annette M. 	Deglow v. 	Los Rios Community College District
Unfair Practice Charge No. 	S-CE-1592 	(Second Amended)
Dear Ms. Deglow:
The above-referenced unfair practice charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on January 10,
1994. 	On January 21, 	1994 you were advised that your charge
would be dismissed unless 	it was withdrawn or amended before
January 31, 	1994 to correct the deficiencies identified by my
January 21, 	1994 letter 	(attached). 	Your subsequent request for
an extension of time in which to amend the charge was approved,
and on February 2, 	1994, 	you filed a First Amended Charge. 	A
Second Amended Charge was filed on February 16, 	1994.
As amended, 	your charge alleges that the Los Rios Community
College District 	(Employer or LRCCD) 	has engaged in acts of
reprisal and discrimination against yourself because of your
exercise of rights guaranteed under the Educational Employment
Relations Act (EERA),1 in violation of Government Code section
3543.5, subsections (a), 	(b) and (d), and thus "contributes to
and encourages the violation" 	of sections 3543.6 and 3544.9 by
the Los Rios College Federation of Teachers, 	CFT/AFT
(Federation) .2
1EERA is codified at Government Code section 3540 et seq.
Government Code sections 	3543.6 and 3544.9 	relate
exclusively to duties and obligations of employee organizations,
not public school employers, 	and the alleged violations of
sections 3543.6 and 3544.9 will not be addressed herein. 	Notice
is taken that a separate charge has been filed against the
Federation 	(Unfair Practice Charge No. 	S-CO-314), and that matter
is still under investigation.
' 	•· I 	, 	I r·
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Dismissal
S-CE-1592
February 18, 	1994
Page 2
The relevant facts underlying the instant charge are as follows.3
Annette Deglow is a part time 	instructor employed by the Employer
within the 	certificated bargaining unit 	represented by the
Federation. 	The Employer and Federation are parties to a
collective bargaining agreement which is effective through June
30, 	1996. 	The agreement includes a provision which requires the
establishment 	of 	seniority numbers and a Certificated Employment
Register for all employees in the unit.4 On January 11, 	1993,
Deglow and other employees 	filed grievances alleging violations
of this provision. 	Deglow's grievance alleges that her current
seniority date, 	as reflected on the Certificated Employment
Register, 	does not accurately "reflect 	[her] 	relative date of
employment 	consistent with past policies and procedures utilized
for others in 	[her] 	'position'."
Deglow's Employment Status and Hire Date
As a part time instructor hired before November 8, 	1967, 	Deglow
was classified as a regular 	(permanent) 	employee by the Employer
as a result of litigation filed, 	and won, 	by Deglow in the mid-
1970's.5 In February 1978, 	Deglow was advised by the Employer
that her hire date would be accepted as September 11, 	1962,6 but
the Employer deferred the question of her proper placement on the
Certificated Employment Register. 	On November 15, 	1980, Deglow
filed a grievance seeking placement on the Certificated
Employment Register. 	On December 12, 	1981, 	Deglow was placed on
the Register but with her date of hire listed as September 11,
1964. 	On February 1, 	1982, 	Deglow filed a grievance seeking
correction of the hire date shown on the Register, 	citing the
3The facts alleged by Deglow are, 	for purposes of this
analysis, 	assumed to be true. 	(San Juan Unified School District
(1977) EERB Decision No. 12; prior to January 1, 1978, PERB was
known as the Educational Employment Relations Board, 	or EERB.)
4This provision references requirements of state law,
including Education Code sections 87415 and 87416.
3Deglow was 	represented in the litigation by legal 	counsel
provided by the California Teachers Association 	(CTA). 	Deglow is
a member of the Los Rios Teachers Association 	(Association), 	a
CTA affiliate. 	The Federation has been the certified bargaining
representative for the unit since November 28, 	1977, 	but the
Association competed for representation rights 	in elections
conducted in 1977, 	1981 and 1987.
"The hire date is based on Deglow's starting date with the
Sacramento City Unified School District, 	which preceded
establishment of the LRCCD; 	her actual starting date was
September 7, 1962.

C.
established practice of the Employer in crediting other employees
with a hire date based on their initial date of hire by the
Sacramento City Unified School District. 	That grievance,
according to Deglow, 	is still pending. 	Deglow has made repeated
subsequent efforts to have her hire date corrected, 	including
filing the January 11, 	1993 grievance.
Dismissal
S-CE-1592
February 18, 	1994
Page 3
July 1993 	Conduct
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.7
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 know
what you're faced with."
Jones and Perrone: 	Laughter.
Discussion
Deglow asserts, 	in short, 	that the District's departure from
established procedure by its 	incorrect placement of her on the
Certificated Employment Register is an act of reprisal and
discrimination which violates Government Code section 3543.5(a).
As discussed above, 	the alleged incorrect placement was first
made known to Deglow in 1981 and grieved by her in 1982.
The EERA, 	at section 3541.5(a) 	limits PERB's jurisdiction over
claims of unfair practices by prohibiting PERB from issuing 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." 	Here, 	the issue of Deglow's hire date has been
7Lowman is not a grievant 	concerning the seniority number
issue.
( 	(

C.
actively contested by Deglow for a period of over 10 years.
Dismissal
S-CE-1592
February 18, 1994
Page 4
8 The
Employer's continued refusal to correct the hire date is not
"active conduct" which revives the timeliness of the charge.
(UCLA Labor Relations Division 	(1989) 	PERB Decision No. 	735-H;
see also San Francisco Classroom Teachers Association. 	CTA/NEA
(Chestangue) 	(1985) 	PERB Decision No. 	544 and San Mateo County
Community College District 	(1993) 	PERB Decision No. 	1030.) 	Even
evidence of contemporaneous conduct which is indicative of an
animus on the part of the Employer toward Deglow9 cannot revive a
charge based on conduct which occurred in 1981. 	(Ibid.; 	also,
Palm Springs Unified School District 	(1991) 	PERB Decision No.
888.)
The only conduct by the Employer alleged here which falls within
the six months statute of limitations concerns Jones' 	remarks
about Deglow in July 1993. 	That singular allegation does not, 	as
explained more fully in my January 21, 	1994 letter, 	constitute
prima facie evidence of a violation of EERA section 3543.5(a).
Conclusion
Therefore, 	I am dismissing the charge based on the facts and
reasons set forth above, 	as well as those contained in my January
21, 1994 letter.
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 copies
of 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:
8The grievance procedure under which Deglow has 	contested
this matter does not provide for binding arbitration and, 	thus,
tolling of the six-months statute of limitations as provide, d fo	-- r
at Government Code section 3541.5(a)(2) 	is inapplicable.
Unified School District 	(1983) 	PERB Decision No. 350; 	cf. Regents
of the University of California 	(1990) 	PERB Decision No. 	826-H.)
i 	i 	i
9As proof of unlawful motive, 	Deglow points to the
disparaging remarks made by Jones during the July 1993 meeting of
Jones, 	Perrone and Lowman.
(
___

c.
Dismissal
S-CE-1592
February 18, 	1994
Page 5
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
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 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 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 Chisholm
Regional Director
Attachment
cc: 	Suzanne Shelley
\

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
January 21, 	1994
Annette M. 	Deglow
Re: 	WARNING LETTER
Annette M. 	Deglow v. 	Los Rios Community College District
Unfair Practice Charge No. 	S-CE-1592
Dear Ms. Deglow:
The above-referenced unfair practice charge, 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on January 10,
1994, 	alleges that the Los Rios Community College District
(Employer) 	conspired with the Los Rios Federation of Teachers
(Federation) 	to deny to Annette Deglow "and others similarly
situated1 rights guaranteed under the 	[Educational Employment
Relations Act]2 to have grievances processed by the union and
have denied Deglow the right to the duty of 	fair representation
resulting in violations 	incorporated in 	[Government Code]
sections 3543.5 a,b,d and 3543.6 a,b and 3544.9." 	Notice is
taken that an identical 	charge has been filed against the
Federation 	(Unfair Practice Charge No. 	S-CO-314). 	Since
Government Code sections 	3543.6 and 3544.9 	relate exclusively to
duties and obligations of employee organizations 	-- not public
school employers, 	the alleged violations of sections 3543.6 and
3544.9 will not be addressed herein.
The relevant facts underlying the instant charge are as follows.
Deglow, 	Michael Lowman and Alfred Guetling are part time
instructors employed by the Employer within the bargaining unit
represented by the Federation. 	Mary T. 	Jones is the Employer's
Director of Personnel. 	Robert Perrone is the Federation's
Executive Director. 	The Employer and Federation are parties to a
collective bargaining agreement which is 	effective through June
30, 	1996. 	The agreement includes a provision for a longevity
bonus of 	four percent for employees with twenty years of service
with the Employer, 	and requires the establishment of seniority
numbers of all employees in the unit. 	On December 18, 	1992,
1As Deglow is the only named charging party, 	only Deglow is
treated as a charging party for purposes of analysis of the
charge. 	(California Union of Safety Employees 	(Trevisanut. 	et
al.) 	(1993) 	PERB Decision No. 	1029-S.)
2The Educational Employment Relations Act 	(EERA) 	is codified
at Government Code section 3540 et seq.
( 	r
•
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Deglow and other employees filed grievances, 	with the
Federation's assistance, 	alleging violations of the longevity
bonus provision. 	These grievances were still pending at the time
of the filing of the instant charge.
Warning 	Letter
S-CE-1592
January 21, 	1994
Page 2
On July 20, 	1993, 	Lowman, 	Jones and Perrone met for a grievance
hearing concerning a separate matter involving Lowman. 	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 know
what you're faced with."
Jones and Perrone: 	Laughter.
On December 11, 	1993, Deglow, 	Guetling and Ryan Polstra 	(on
behalf of 16 grievants) 	sent a letter to the Federation's
president. 	The letter, 	relying on its face upon information
provided by Deglow concerning the 	substance of meetings Deglow
had had with Perrone, 	expresses concern that the Federation might
be acting in bad faith vis-a-vis 	resolution of the longevity
bonus grievances, 	and requests a meeting with the president. 	A
response to that letter was sent by Perrone on December 20, 	1993.
In his letter, 	Perrone asserts that Deglow had provided
inaccurate information, 	and contends that the Federation is
acting in good faith. 	Perrone's letter indicates that the
Federation president would not agree to meet with the grievants
as a group.
Discussion
To demonstrate a violation of EERA section 3543.5(a), 	the
charging party must show that: 	(1) 	the employee exercised rights
under EERA; 	(2) 	the employer had knowledge of the exercise of
those rights; 	and 	(3) 	the employer imposed or threatened to
impose reprisals, 	discriminated or threatened to discriminate,
( 	(

or otherwise 	interfered with, 	restrained or coerced the employees
because of the exercise of those rights. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210 	(Novato); Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89; Department of
Developmental Services 	(1982) 	PERB Decision No. 228-S; California
State University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Warning 	Letter
S-CE-1592
January 21, 	1994
Page 3
=
While the instant charge does establish that Deglow has engaged
in protected activity 	(by filing grievances) 	and that the
employer had knowledge of such activity, 	the charge does not
allege any conduct which would demonstrate that the employer
"imposed or threatened to impose reprisals" 	against Deglow. 	The
only conduct attributable to the Employer in this case involved
the conversation between Jones and Perrone in which Jones made
disparaging comments about Deglow.
Prima facie evidence of some adverse action is required to
support a claim of discrimination or reprisal under the Novato
standard. 	(Palo Verde Unified School District 	(1988) 	PERB
Decision No. 	688; 	Newark Unified School District (1991) 	PERB
Decision No. 	864 	(Newark) ; State of 	California 	(Department of
Parks and Recreation) 	(1994) 	PERB Decision No. 	1031-S.) 	In
determining whether prima facie evidence of an adverse action is
established, 	the Board uses an objective test and will not rely
upon the subjective reactions of the employee. 	(Id) 	In Newark.
the Board further explained that
The test which must be satisfied is not
whether 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. 	The charge does 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
employment." 	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.
(
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(
Warning Letter
S-CE-1592
January 21, 	1994
Page 4
The charge also fails to establish that 	the Employer's conduct,
even if not retaliatory, 	had the effect of interference with
Deglow's exercise of protected rights under EERA.
In an unfair practice case involving an
allegation of interference, 	a violation will
be found where the employer's acts interfere
or tend to interfere with the exercise of
protected rights and the employer is unable
to justify the actions by proving operational
necessity.
Statements made by an employer are to be
viewed in their overall context 	(i.e., 	in
light of surrounding circumstances) 	to
determine if they have a coercive meaning.
(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."
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, 	and
be 	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 January 31. 	1994. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, ext. 359.
Sincerely,
Les Chisholm
Regional Director
.. 	(
/}