Los Rios College Federation of Teachers (Sander, et al.) (PERB 1111EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELMER 	(JOHN) 	SANDER,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-321
Request 	for Reconsideration
PERB Decision No. 	1111
PERB Decision No. 	1111a
May 14, 1997
ALFRED J. 	GUETLING,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-322
ELENE E. 	HOLMES,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-323
BILL K. 	MONROE,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
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) 	Case No. 	SA-CO-324
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_____________ !)
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MINA-MAY 	BROWN ROBBINS,
Charging 	Party,
V .
LOS RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-325
JOHN R. 	DARLING,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-326
DOUGLAS 	F. 	GARDNER,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-327
WILLIAM P. 	DIONISIO,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
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)- L.
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) 	Case No. 	SA-CO-328
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2
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_____________ )
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GLOYD 	ZELLER,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-329
FRANK 	BAKER,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-330
ROBERT E. 	PROAPS, 	JR.,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
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) 	Case No. 	SA-CO-331
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DONALD BRYANT KENT,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
Case No. 	SA-CO-332
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3
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NOEL 	LANCE 	BERNATH,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
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) 	Case No. 	SA-CO-334
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RYAN 	POLSTRA,
Charging 	Party,
V .
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS,
Respondent.
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) 	Case No. 	SA-CO-335
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Appearances: 	Elmer 	(John) 	Sander and Annette Deglow 	for	or Elmer	Elmer
(John) 	Sander, Alfred J. Guetling, 	Elene E. 	Holmes, 	Bill K.
Monroe, 	Mina-May Brown Robbins, 	John R. 	Darling, 	Douglas F.
Gardner, 	William P. 	Dionisio, 	Gloyd Zeller, 	Frank Baker, 	Donald
Bryant 	Kent, 	Noel 	Lance Bernath and Ryan Polstra; 	Law Offices 	of
Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of 	Teachers.
Before Chairman Caffrey; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on a 	request by Elmer
(John) 	Sander, Alfred J. Guetling, 	Elene E. Holmes, 	Bill K.
Monroe, 	Mina-May Brown Robbins, 	John R. 	Darling, 	Douglas F.
Gardner, 	William P. 	Dionisio, 	Gloyd Zeller, 	Frank Baker, 	Donald
Bryant 	Kent, 	Noel 	Lance Bernath and Ryan Polstra 	(Charging
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)
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Parties)1 that 	the Board accept 	their late 	filed request 	to
reconsider its decision in Los Rios 	(Sander, 	et al.). 	In
Los Rios 	(Sander, 	et al.), 	the Board dismissed the Charging
Parties' 	unfair practice 	charges which alleged that 	the 	Los 	Rios
College 	Federation of Teachers 	(Federation) 	breached 	its 	duty of
fair 	representation guaranteed by 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA), 	thereby violating
section 3543.6(b).2
1John R. 	Darling withdrew his 	exceptions 	to 	the
administrative 	law judge's 	(ALJ) 	proposed decision in Los 	Rios
College Federation of Teachers 	(Sander, 	et al.) 	(1995) 	PERB
Decision No. 	1111 	(Los Rios 	(Sander, 	et al.)). 	Robert E. 	Proaps,
Jr. 	did not 	file 	exceptions 	to the proposed decision 	in Los 	Rios
(Sander, 	et a l . ) . 	The Board's Order in Los Rios 	(Sander, 	et al.)
did not 	apply 	to 	these 	two parties 	and under PERB
Regulation 	32410 	they may not 	request 	reconsideration of 	that
decision.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	states:
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.
Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
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BACKGROUND
Charging 	Parties 	are 	instructors 	within the 	Los 	Rios
Community College District 	(District), 	employed prior to 1967,
who 	filed grievances 	asserting 	that 	the District 	failed 	to
properly account 	for 	their 	seniority and 	retirement 	credits.
They alleged 	that 	the 	Federation did not 	fairly 	represent 	them 	in
their 	seniority and retirement 	credit 	grievances, 	and that 	the
Federation 	refused 	to pursue 	the 	grievances 	to a board 	of 	review
hearing. 	The board of 	review hearing was 	the 	last 	step 	in the
District's 	grievance procedure, 	which did not provide 	for binding
arbitration. 	The District's 	Board of 	Trustees 	has 	the authority
to accept 	or reject 	recommendations 	of 	a board of 	review.
In Los Rios 	(Sander, 	et a l . ) , 	the Board adopted the ALJ's
proposed 	decision 	finding 	that 	Charging 	Parties 	failed 	to 	show
that 	the 	Federation breached 	its 	duty of 	fair 	representation 	in
its 	handling of 	their grievances. 	The abbreviated December 	1994
hearing 	in Los Rios 	(Sander, 	et al.) 	incorporated by reference
the 	transcript 	and exhibits 	of 	the August 	1994 	hearing 	in
Los Rios 	College Federation of Teachers 	(Deglow) 	(1996) 	PERB
Decision No. 	1133 	(Lo--------·s Rios 	(Deglow)) 	which involved similar
allegations made by Annette Deglow 	(Deglow), 	another pre-1967
instructor in the District. 	No transcripts were prepared, 	and no
post-hearing briefs were 	submitted, 	due 	to the 	incorporation of
the Los Rios 	(Deglow) 	record.
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CHARGING PARTIES' 	REQUEST
On February 20, 	1997, 	Charging Parties 	filed their request
to reconsider Los Rios 	(Sander, 	et al.). 	The request is based on
the 	same 	assertions made by Deglow 	in her 	late 	filed 	request 	to
reconsider Los Rios 	(Deglow).3 Charging Parties 	contend that
testimony offered by a key witness 	for 	the 	Federation 	in 	the 	case
was 	"false 	- 	misleading and untrue." 	They assert 	that 	the
Federation witness 	testified 	that 	the 	Federation's 	February 	1994
decision 	not 	to pursue Deglow's 	seniority and 	retirement 	credit
grievances 	to a board of 	review resulted, 	at least 	in part, 	from
the 	Federation's view that 	the District's general 	counsel, 	Sue
Shelley 	(Shelley), 	would ensure 	that any favorable board of
review 	ruling would not 	be 	accepted by 	the 	District's 	Board 	of
Trustees.
Charging Parties refer to a January 23, 	1997, 	letter from
the 	Federation 	to 	PERB, 	concerning another unfair practice
charge, 	which states 	that 	Shelley 	"ended her professional
relationship with the District 	in December 	1993." 	Since 	Shelley
was 	no 	longer employed by the District, 	Charging Parties 	assert
that 	the 	Federation's 	decision not 	to pursue 	seniority and
retirement 	credit 	grievances 	to a board of 	review could not, 	or
should not, 	have been based on 	its view of 	Shelley's 	advice 	to
the District. 	Therefore, 	either the Federation witness
intentionally provided 	false 	and misleading 	testimony 	in 	the
3See Los Rios College Federation of Teachers 	(Deglow) 	(1997)
PERB Decision No. 	1133a.
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August 	1994 	PERB hearing, 	or the 	Federation was unaware 	of
Shelley's 	status 	and 	its 	representation was 	grossly negligent.
Charging 	Parties 	believe 	this 	information 	supports 	their 	claim
that 	the 	Federation 	failed 	in 	its 	duty of 	fair 	representation.
Charging 	Parties 	assert 	that 	they only became 	aware 	of 	these
circumstances when they received a 	copy of 	the January 23, 	1997,
letter. 	Therefore, 	they argue 	that good cause exists 	to excuse
their 	late 	filed 	request 	that 	the Board 	reconsider 	its 	decision
in Los Rios 	(Sander, 	et a l . ) .
FEDERATION'S 	RESPONSE
In response, 	the 	Federation asserts 	that good cause does not
exist 	to excuse Charging Parties' 	late 	filing 	for several
reasons. 	Citing California State Employees Association. 	Local
1000 	(Janowicz) 	(1996) 	PERB Order No. 	Ad-276-S, 	the Federation
argues 	that 	the 	Charging 	Parties 	did not make 	a 	conscientious
effort 	to 	file 	their request 	on time. 	The 	Federation offers 	a
June 	13, 	1994, 	memo from the District 	to all 	faculty and staff
announcing 	the 	appointment 	of 	a new District 	general 	counsel.
The 	Federation states 	that 	the 	Charging 	Parties 	received 	this
memo 	in June 	1994, 	prior to the August 	1994 	PERB hearing 	in Los
------·Rios 	(Deglow). 	and prior to the December 1994 hearing in Los Rios
(Sander, 	et a l . ) . 	Since the District notified them that a new
general 	counsel 	had been appointed prior 	to 	the 	PERB 	hearing,
their assertion 	that 	they only became 	aware 	in January 	1997 	of
Shelley's 	1993 	retirement 	shows a lack of 	conscientious 	effort.
88

The 	Federation 	further asserts 	that 	the 	testimony 	of 	the
Federation witness 	concerning 	Shelley's 	employment 	status 	with
the District 	is 	not 	referenced in, 	and had no bearing on, 	the
ALJ's 	or Board's 	decision to dismiss 	Charging Parties' 	charges.
Therefore, 	the 	Charging 	Parties have not 	explained how and why
the 	allegedly misleading witness 	statements 	are 	relevant 	to 	the
Board's 	decision.
The 	Federation also asserts 	that 	the witness' 	August 	1994
testimony 	correctly 	reflects 	Shelley's 	potential 	role 	in 	the
seniority and 	retirement 	credit 	grievances. 	The 	Federation
offers a February 18, 	1997, 	letter from the District that 	states:
While Ms. 	Shelley has been retired for
several years, 	she remains the sole resource
for information regarding 	[this] 	series 	of
actions against 	the District. 	As a result,
the District 	staff must 	continue 	to 	rely on
her expertise.
DISCUSSION
PERB Regulation 324104 states, 	in pertinent part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to reconsider
the decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration are
limited to 	claims 	that 	the decision of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or newly discovered evidence or law
which was 	not 	previously available 	and 	could
not 	have been discovered with 	the 	exercise 	of
reasonable 	diligence.
4PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
99

The Board issued Los Rios 	(Sander, 	et al.) 	on July 21, 	1995.
Charging 	Parties 	filed their 	request 	to 	reconsider 	that 	decision
on February 20, 	1997, 	approximately 18 months after the due date
for 	filing a request 	for reconsideration. 	Accordingly, 	the Board
must address 	the 	issue of 	Charging Parties' 	late 	filing of 	their
request.
PERB Regulation 32136 provides 	that:
A late 	filing may be 	excused 	in 	the
discretion of 	the 	Board 	for good 	cause 	only.
A late 	filing which 	has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
In applying 	this 	regulation, 	the Board has 	found good cause 	to
excuse 	late 	filings 	when a party has 	demonstrated a 	conscientious
effort 	to timely file. 	(North Orange County Regional
Occupational Program 	(1990) 	PERB Decision No. 	807; 	Trustees of
the California State University 	(1989) 	PERB Order No. 	Ad-192-H.)
Charging 	Parties 	argue 	that 	good 	cause 	exists 	because 	they
only became aware 	that 	"false 	- 	misleading and untrue" 	testimony
was 	offered by a key 	Federation witness 	during 	the August 	1994
PERB hearing when they received a 	copy of 	a January 23, 	1997,
letter 	from the 	Federation 	to a Board agent.
Charging Parties' 	argument 	is not persuasive. 	The District
apparently 	sent 	an announcement 	of 	the appointment 	Of 	Shelley's
replacement 	to all 	faculty and staff 	of 	the District 	in June
1994. 	Given the announcement, 	and the ensuing period of more
than two and one-half years, 	it appears 	reasonable 	that 	Charging
Parties 	could have 	discovered 	Shelley's 	departure 	prior 	to
January 1997 	through a conscientious 	effort. 	Accordingly, 	the
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Board 	finds 	that 	Charging 	Parties 	have 	not 	demonstrated 	good
cause 	to 	excuse 	their late 	filing.
ORDER
The 	Charging Parties' 	request 	to accept 	their late 	filed
request 	for reconsideration of 	the Board's 	decision 	in Los 	Rios
College Federation of Teachers 	(Sander, 	et al.) 	(1995) 	PERB
Decision No. 	1111 	is hereby DENIED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
11