Los Rios College Federation of Teachers (Deglow) (PERB 1238E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS/CFT/AFT/LOCAL 2279,
Respondent.
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)
) 	Case No. 	SA-CO-383
PERB Decision No. 	1238
December 	2, 	1997
)
)
)
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)
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Appearances: 	Annette M. 	Deglow, 	on her own behalf; 	Law Offices
of Robert J. 	Bezemek by Adam H. 	Birnhak, 	Attorney, 	for Los Rios
College 	Federation of 	Teachers/CFT/AFT/Local 	2279.
Before Dyer, 	Amador and Jackson, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Annette M. 	Deglow's 	(Deglow) 	unfair practice
charge. 	As amended, 	Deglow's 	charge alleges that 	the Los Rios
College 	Federation of 	Teachers/CFT/AFT/Local 	2279 	(Federation)
breached 	its 	duty 	of 	fair 	representation 	in violation of 	sections
3544.9 	and 3543.6(a) 	of 	the Educational 	Employment Relations Act
(EERA) 	and discriminated against 	her 	in violation of 	EERA
section 3543.6(b).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.6 provides, 	in relevant 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.

(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.
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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including Deglow's 	original 	and amendments 	to 	the 	unfair practice
charge, 	the warning and dismissal letters, 	Deglow's appeal, 	and
the 	Federation's 	response 	thereto. 	The Board 	finds 	the warning
and dismissal 	letters 	to be 	free 	from prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself, 	consistent with
the 	following 	discussion.
DISCUSSION
The 	Board 	finds 	that 	an award of 	litigation costs 	is not
appropriate 	in this 	case. 	Accordingly, 	the Board reverses 	the
Board agent's 	award of 	costs.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-383 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Amador and Jackson joined 	in 	this 	Decision.
22

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
May 16, 	1997
Annette M. 	Deglow
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
RULING 	ON REQUEST 	FOR 	SANCTIONS
Annette M. 	Deglow v. 	Los Rios College Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice 	Charge No. 	SA-CO-383
Dear Ms. 	Deglow:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	on January 6,
1997, 	and amended on January 21 and February 11, 	1997. 	Your
charge 	alleges 	that 	the 	Los 	Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279 	(Federation or Respondent) 	breached
its 	duty of 	fair representation 	(DFR) 	in violation of Government
Code 	sections 	3544.9 	and 3543.6(a) 	and discriminated against 	you
in violation of Government Code section 3543.6(a).
I 	indicated to you, 	in my attached letter dated February 28,
1997, 	that 	the above-referenced 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 the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it prior to
March 7, 	1997, 	the charge would be dismissed.
Your 	subsequent 	request 	for 	additional 	time 	in which 	to 	amend or
withdraw the 	charge 	was 	granted, 	and your Third Amended Charge
was filed on March 20, 	1997.
Your most recent amendment, 	however, 	merely restates 	facts
previously alleged 	and 	largely 	consists 	of 	conclusions 	of 	law and
legal 	argument, 	and does not 	include 	any new factual 	allegations
in support 	of your charge. 	Two arguments 	raised by the 	latest
amendment 	bear 	further discussion 	here.
First, 	you cite past 	actions of the Federation where 	they filed
grievances 	which 	they acknowledged were 	not 	technically grievable
in order 	to 	create 	a 	forum for problem resolution. 	You argue
that, 	since 	the 	Federation was willing to 	file an admittedly
unmeritorious grievance before, 	its refusal 	to do so 	later 	is
proof 	that 	they are 	acting 	in a manner that 	is 	arbitrary,
capricious 	or discriminatory.

Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 2
This 	argument 	is unpersuasive. 	As 	discussed in my February 28,
1997 	letter, 	the 	Federation has previously refused to pursue 	a
grievance on your behalf over the 	issue of your hire 	date, 	you
have 	alleged this 	conduct 	breached the 	duty of 	fair
representation, 	and the Board has 	found 	in 	favor of 	the
Federation. 	In this 	light, 	the Federation's 	latest 	refusal 	to
represent you over the same 	issue does not, 	on its 	face, 	appear
arbitrary or without 	a 	rational 	basis.
Second, 	you argue 	that 	the 	Federation has 	engaged in a pattern of
conduct 	which proves 	their decision not 	to 	represent 	you 	arose
out 	of an unlawful 	animus, 	under the 	standard set 	forth in Novato
Unified School District 	(1982) 	PERB Decision No. 	210 	(Novato).
This 	contention 	rests 	on your well-documented protected 	activity
and the 	Federation's 	knowledge 	of 	same. 	The 	"historical 	record"
which you believe 	establishes 	the 	Federation's 	animus 	includes
contractual 	agreements 	they 	entered 	into with your 	employer 	in
1980 	and 1986, 	and in February 1997,1 as well 	as the
Federation's public 	criticism of your 	frequent 	filing of 	charges
against 	them and 	their 	request 	that 	the 	Board 	impose 	sanctions 	on
you because 	of 	the 	frequency with which you 	file 	(unsuccessful)
charges 	against 	them.
This argument, 	too, 	is unpersuasive. 	Though Novato was not cited
in my February 26, 	1997 	letter, 	the analysis of your charge 	in
that 	letter 	includes 	consideration of 	whether 	the 	factual
allegations 	establish that 	the 	Federation 	denied you
representation for discriminatory reasons. 	For all 	the 	reasons
set 	forth in that 	letter, 	the 	conclusion here 	is 	that 	a prima
facie 	case of discrimination has not been established. 	I 	am
unaware 	of 	any 	legal 	authority for the 	proposition 	that 	a party
acts 	in violation of 	the Act 	when 	it 	asks 	the 	Board to 	sanction
another party. 	The other 	"historical 	record" 	events 	cited,
except 	for 	the 	contract 	amendment 	which occurred 	two months 	after
the 	Federation declined to represent 	you, 	have been considered by
the 	Board in earlier 	cases.
Therefore, 	I 	am dismissing the charge based on the 	facts 	and
reasons 	discussed above 	as well 	as 	those 	contained 	in my
February 28, 	1997 letter.
1This 	latter contract 	amendment 	is 	itself 	at 	issue 	in Unfair
Practice Charge No. 	SA-CO-3 85, 	dismissed on April 24, 	1997.

Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 3
Request 	for 	Sanctions
On March 27, 	1997, 	I wrote to you and the Federation concerning
the 	Federation's 	request 	that 	PERB 	impose 	sanctions 	and award
litigation expenses 	to the 	Federation because 	of your 	filing of
the 	instant 	charge 	and a parallel 	unfair practice 	charge 	against
the Federation 	(SA-CO-382). 	My March 27 	letter afforded both
parties 	an opportunity to 	file 	argument 	on 	the 	issue 	of
sanctions, 	and the 	Federation was 	further directed to 	specify the
attorney 	fees 	and 	claims 	which 	it 	claimed 	should be 	awarded as
sanctions. 	Following extensions 	of 	time 	requested by both
parties, 	responses 	to my March 27 	letter were 	filed on April 	29,
1997.2
The 	Federation's 	case 	for 	sanctions 	is 	premised on warnings
issued by the 	Board 	itself 	in three 	earlier cases: 	Los 	Rios
College Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision No.
1133, 	Los Rios College Federation of Teachers 	(Deglow) 	(1996)
PERB Decision No. 	1137, 	and Los Rios College Federation of
Teachers 	(Deglow) 	(1996) 	PERB 	Decision 	No. 	114 	0. 	The 	Federation
notes 	that 	the 	two 	current 	charges 	concern the 	Federation's
conduct 	in representing 	(or refusing to represent) 	you over
issues 	of 	longevity pay and hire 	date. 	The 	Federation 	further
notes 	that 	representation over 	longevity pay was 	the 	subject 	of
five previous 	charges, 	and representation over hire date was 	the
subject 	of 	three earlier charges. 	The 	Federation concludes 	that
filing of 	the 	two 	instant 	charges 	constitutes 	"pursuit 	of 	similar
charges 	based on essentially the 	same 	circumstances," 	which 	the
Board cautioned may lead 	to 	the 	imposition of 	sanctions. 	(Los
Rios College Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision
No. 	1133.)
The 	Federation's 	response 	included 	statements 	showing 	the
attorney 	fees 	and 	costs 	incurred by the 	Federation 	in 	these
matters 	totaled 	$4,419.99, 	including attorney fees 	of 	$4,280.25
and costs of 	$139.74.
You 	argue 	that 	sanctions 	are 	unwarranted because you 	attempted 	to
research the 	issues 	in your cases, 	filed a timely charge 	and
acted 	in good 	faith. 	You cite 	Chula Vista 	City School 	District
(1982) 	PERB Decision No. 	256 as authority for the proposition
2The 	due 	date 	for 	submission of 	argument was 	confirmed by
letter dated April 	15, 	1997. 	That 	letter 	further advised that
requests 	for responsive 	argument would be 	entertained, 	but
neither party 	requested 	an opportunity 	to 	file 	additional
argument.

that 	sanctions 	should not 	be 	awarded where 	a party acts 	in good
faith and raises 	issues which are 	of 	"debatable" 	merit.
Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 4
Your argument 	restates your belief 	that 	a 	complaint 	should 	issue
in both charges and reviews the history, 	since 	1979, 	of your
attempts 	to 	correct 	your employment 	conditions.
The 	Board 	enunciated 	the 	standard 	for 	an 	award of 	litigation
expenses 	as 	follows 	in Los Angeles Unified School
District/California 	School 	Employees Association 	(Watts) 	(1982)
PERB Decision No. 	181a 	(LAUSD).
The Board notes that 	[Complainant] 	Mr. 	Watts
has 	repeatedly 	filed 	complaints 	which 	are
virtually 	identical 	in content 	to 	this
despite 	the 	Board'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 in
continually defending 	against 	the 	same
charges. 	Accordingly, 	the Board sees 	fit to
order 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 by
a 	respondent 	while 	trying to defend against
such actions.
The 	Board 	later awarded costs 	and 	fees 	against 	the 	complainant
warned in LAUSD, 	writing
The 	Board 	further concludes 	that Watts'
complaint 	is vexatious 	and 	frivolous 	and
defies the Board's Order in 	[LAUSD], 	in which
we 	ordered Watts 	to 	cease 	and desist 	from
filing complaints 	that 	abuse 	the
administrative processes 	of 	this Board. 	This
case 	represents one of a number of 	frivolous
complaints 	and appeals 	filed by Watts 	since
that Order. 	Accordingly, 	we shall once again
order Watts 	to 	cease 	and desist 	from such
conduct and, 	in addition, 	shall order that

Watts be 	assessed quantifiable 	costs,
including reasonable attorneys' 	fees,
incurred by the 	[respondent]. 	(United
Professors of California 	(Watts) 	(1984) 	PERB
Decision No. 	398-H.)
Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 5
As 	cited by the 	Federation, 	the 	Board 	itself 	first 	warned you
against 	the 	repeated 	filing of 	similar charges 	in Los 	Rios
College 	Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision No.
1133. 	The Board 	in that 	case 	declined to award litigation
expenses, as follows:
[T]he Board is 	reluctant 	to order 	the payment
of 	litigation expenses 	by employees 	who 	are
representing themselves 	in 	PERB proceedings,
because 	to do 	so might 	tend to discourage 	the
legitimate pursuit 	of 	unfair practice
charges. 	The charging party here, 	however,
while 	representing herself, 	has 	extensive
experience 	in 	PERB's unfair practice 	charge
process. 	The 	repeated presentation of
charges 	based 	on 	circumstances 	which have
been 	considered by 	the 	Board 	in 	related 	cases
previously suggests 	an abuse 	of 	that process.
.
On balance, 	the Board concludes 	that
litigation expenses 	should not 	be 	awarded 	to
the Federation in this case. 	However, 	the
Board cautions 	Deglow that 	pursuit 	of 	similar
charges 	based 	on 	essentially the 	same
circumstances 	presented by 	this 	case 	may be
considered an abuse 	of 	PERB's process 	in the
future.
In Los Rios 	College Federation of Teachers, 	CFT/AFT Local 	2279
(Deglow) 	(1996) 	PERB Decision No. 	1137, 	the Board 	"reaffirmed its
recent warning" 	to you while denying a request 	for sanctions.
In Los Rios College Federation of Teachers, 	CFT/AFT Local 	2279
(Deglow) 	(1996) 	PERB Decision No. 	1140, 	the Board again warned
you, writing
The 	Board declines 	to 	sanction Deglow 	in 	this
case primarily because 	the warnings 	in 	PERB
Decision No. 	1133 	and PERB Decision No. 	1137
were 	recently issued, 	after the unfair
practice 	charges 	in the present 	case 	had been
filed.

Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 6
The 	Board hereby reaffirms 	the 	warnings 	in
those 	cases 	and wishes 	to 	remind Deglow that
the Board will 	award attorneys' 	fees and
costs where a case 	is without 	arguable merit,
frivolous, 	vexatious, 	dilatory, pursued in
bad 	faith or 	is 	otherwise 	an abuse 	of
process. 	(Chula Vista City School 	District
(1990) 	PERB Decision No. 	834; United
Professors of California 	(Watts) 	(1984) 	PERB
Decision No. 	398-H.) 	The 	frequency and
number of 	unsuccessful 	charges 	Deglow has
filed at 	PERB 	indicate 	that 	she 	is
approaching the 	standard 	in 	the 	cited 	cases
whereby sanctions 	are 	appropriate. 	[Emphasis
added.]
The 	issues 	raised by you 	in 	the 	charge 	dismissed by the 	Board 	in
Los Rios 	College Federation of Teachers 	(Deglow) 	(1996) 	PERB
Decision No. 	1133 	included longevity pay and hire date, 	the 	same
two 	issues 	raised by the 	two 	instant 	charges. 	For the 	reasons
set 	forth above and in the attached Warning Letter, 	I 	have
concluded that 	both charges 	fail 	to 	state 	a prima 	facie 	case 	of 	a
violation by the 	Federation of 	the 	duty of 	fair 	representation.
Under these 	circumstances, 	and in consideration of 	the
progressively 	sterner warnings 	by 	the 	Board 	itself 	in 	earlier
cases 	found to 	lack merit, 	it 	is 	appropriate to award reasonable
litigation expenses 	to the 	Federation.
Accordingly, 	you are hereby reminded of 	the Board's prior
admonition 	to 	cease 	and desist 	from 	filing unfair practice
charges 	which are 	"based on essentially the 	same 	circumstances
presented" 	by earlier charges, 	and you are 	ordered to pay to 	the
Federation its 	quantifiable 	costs 	incurred in this matter, 	not
including attorney 	fees.
Attorney 	fees 	are 	not 	assessed 	in this matter 	for 	two reasons.
First, 	this 	is 	the 	first 	instance where 	sanctions have been
ordered, 	and it 	is to be hoped that 	the 	reiteration of 	the 	cease
and desist 	order and the 	assessment 	of 	costs will 	be 	sufficient
to deter the 	filing of 	similar charges 	in the 	future. 	Second,
the 	determination here 	is 	that 	an award of 	attorney fees would
not be 	reasonable 	in this 	case, 	since 	the 	Federation was not
required by PERB 	regulations 	to 	respond to 	the 	charges. 	The 	only
response 	required by 	PERB 	in 	these 	matters 	was 	the 	submission

relating 	to 	the 	Federation's 	affirmative 	request 	for an 	award of
sanctions.3 The 	amount 	thus 	assessed to Deglow is 	$139.74.4
Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 7
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:
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.
3The 	authority to 	award attorney 	fees 	and/or costs 	is
presumed 	from 	PERB precedent 	and Government 	Code 	section 	3541.3,
subsections 	(i) 	and 	(n). 	However, 	notice is taken of the ruling
of 	the California Supreme 	Court 	in Sam Andrews' 	Sons v.
Agricultural 	Labor Relations Board 	(1988) 	47 	Cal.3d 157 	[253
Cal.Rptr. 	30; 	763 P.2d 881].
4This 	amount 	encompasses 	the 	cumulative 	effect 	of 	the 	orders
in SA-CO-382 	and SA-CO-383.

Dismissal 	Letter
SA-CO-383
May 16, 	1997
Page 8
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: 	Adam H. 	Birnhak

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
February 28, 	1997
Annette M. 	Deglow
Re: 	WARNING LETTER
Annette M. 	Deglow v. 	Los Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279
Unfair Practice 	Charge No. 	SA-CO-383
Dear Ms. 	Deglow:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations Board 	(PERB or Board) 	on January 6,
1997, 	and amended on January 21 and February 11, 	1997. 	Your
charge 	alleges 	that 	the 	Los Rios 	College 	Federation of
Teachers/CFT/AFT/Local 	2279 	(Federation or Respondent) 	breached
its 	duty of 	fair representation 	(DFR) 	in violation of Government
Code sections 3544.9 and 3543.6(a).
Investigation of 	this 	charge 	revealed 	the 	following pertinent
information. 	You are 	employed by the 	Los Rios 	Community College
District 	(District) 	as a part-time, 	tenured-track 	(regular)
instructor, 	and your position 	is 	included in the bargaining unit
exclusively 	represented by the 	Federation. 	You were 	first
employed by the 	District 	in July 1965, 	but 	were 	employed prior 	to
that 	by the 	District's 	predecessor 	(Sacramento 	City Unified
School District). 	You are 	an active member of a competing
employee organization 	(Los Rios Teachers Association), 	which
previously attempted 	a 	decertification 	of 	the 	Federation.1
At 	the 	heart 	of 	the 	current 	charge 	is 	a dispute 	of 	long-standing
over your correct 	start 	(or seniority) 	date with the District.
In 1978, 	the District 	indicated it would 	"accept your affidavit
with the date of September 11, 	1962 	as your first day of
employment with the District"2 [Footnote 	in original 	omitted.]
even 	though 	Sacramento 	City Unified 	School 	District 	had 	indicated
your date of hire was July 16, 	1964.
1The 	most 	recent 	decertification election 	involving 	the 	two
organizations was in June 1987, 	however.
2You actually contend that 	the 	correct 	date 	is 	September 	7,
1962.

Warning 	Letter
SA-CO-383
February 28, 	1997
Page 2
In 1981, 	the District assigned you a number 	(371) 	on the
Certificated Employment 	Register3 using a 	seniority date 	of
September 11, 	1964 	(not September 7 or 11, 	1962, 	and not July 16,
1964). 	You filed a grievance over this issue in 1982, 	but the
Federation declined 	to process 	the 	grievance 	and the 	date 	was 	not
changed.
The 	seniority date 	issue 	has been the 	subject 	of more 	than one
grievance 	since 	1982, 	and has 	also been the 	subject 	of prior
unfair practice 	charge 	litigation, 	including Unfair 	Practice
Charge No. 	SA-CO-314. 	The record before the Board in that 	case
included an 	"attorney-client" 	letter prepared by Katherine 	J.
Thompson 	for the 	Federation analyzing, 	inter alia, 	your 	seniority
date 	claim. 	The 	letter concluded 	in part 	that 	the 	District 	had
misinterpreted 	and/or misapplied 	applicable 	statutory 	provisions
and that 	your 	seniority date 	should be 	corrected. 	The
Federation's 	executive director testified at 	the 	hearing 	in this
matter 	that 	the 	decision not 	to pursue 	the 	grievance 	was
influenced by 	the 	perceived 	likelihood 	that 	the 	District's 	board
would 	reject 	any favorable 	settlement 	or award due 	to 	the
influence of 	Sue 	Shelley, 	the 	former general 	counsel 	for the
District.
However, 	based on the entire 	record, 	the Board held in Los Rios
College Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision No.
1133 	that 	the 	Federation had not 	breached its 	duty of 	fair
representation by refusing 	to 	take 	your 	seniority date 	grievance
to 	a board of 	review hearing. 	The 	Board's decision 	includes 	the
following 	discussion:
Despite 	Deglow's 	assertion 	that 	her
grievances against 	the District 	are well-
founded, 	decisions by the 	Federation not 	to
pursue 	them are 	not 	in and of 	themselves
unlawful. 	Deglow must 	show that 	the
Federation's 	actions 	concerning 	these
grievances were without 	a 	rational basis 	or
devoid of honest 	judgment. 	Deglow has 	failed
3The 	current 	written 	agreement 	between 	the 	Federation 	and
District, 	in Article 6 	- 	Seniority, 	provides that the District
shall 	maintain a 	certificated register and assign a 	seniority
number to each member of 	the bargaining unit 	who has 	re-
employment 	rights. 	Numbers 	are 	assigned 	"according to provisions
in the Education Code" 	and 	"[l]ower numbers 	indicate 	earlier
hiring dates" 	(sub-section 6.2). 	Seniority is referenced by
Article 	5 	of 	the 	agreement 	concerning such matters 	as 	involuntary
reassignment, 	reductions 	in force and recall 	rights.

to do so and, 	therefore, 	her exceptions are
rejected.
Warning 	Letter
SA-CO-383
February 28, 	1997
Page 3
In June 	1996, 	the 	Federation and District 	negotiated a 	successor
agreement which expires on June 	30, 	1999. 	The new agreement
includes 	in Article 	2, 	Section 2.10.3 	the 	following language:
Effective July 1, 	1994, 	a regular full-time
tenured 	or 	tenure 	track 	faculty member who
transfers 	from another employee unit 	of 	the
[District], 	the related cumulative years of
regular paid 	service 	credit 	which was 	earned
by the 	employee 	under 	another unit 	or
collective 	bargaining 	contract 	shall 	be
retained. 	Cumulative years 	of 	qualifying
service 	as 	defined 	in each of 	the 	collective
bargaining agreements with 	[the 	District]
shall 	be 	combined with 	qualifying 	faculty
service 	earned as provided 	in this 	contract.
The 	increase 	in 	salary 	for 	the 	longevity
factor 	shall 	occur only at 	the beginning of
the 	following 	contract 	year 	or 	semester when
the 	qualifying years of 	service 	are
completed.
On November 12, 	1996, 	you contacted the Federation, 	advised you
would 	file 	a grievance 	relating to your seniority date, 	asked
that 	a grievance 	number be 	assigned and 	informed the 	Federation
that 	you were 	requesting representation. 	The grievance was
assigned number 	5-F96 	and 	filed, 	and you 	faxed a 	copy of 	the
grievance 	to 	the 	Federation with a 	letter 	requesting
representation.
On November 15, 	1996, 	the Federation informed you that 	they had
decided not 	to 	represent 	you 	concerning Grievance 	5-F96. 	The
Federation explained 	its 	decision as 	follows:
This decision is based on the belief 	that, 	as
far as we can see, 	the issues you raise 	in
the 	two grievances4 have been the 	subject 	of
prior grievances 	the 	[Federation] 	did not
pursue. 	It 	is 	the Federation's belief that
nothing material 	has 	changed 	since 	these
issues were 	last 	raised.
4The 	second grievance 	referred 	to by the 	Federation 	is 	4-
F96, 	and the 	Federation's 	refusal 	to represent you on that
grievance 	is 	the 	subject 	of Unfair Practice 	Charge No. 	SA-CO-382

Warning 	Letter
SA-CO-383
February 28, 	1997
Page 4
The 	Federation's 	letter added that 	the 	decision would be
reconsidered 	if 	you 	could 	"demonstrate 	material 	changes 	from the
last 	time you grieved these 	issues."
There 	is 	no 	evidence 	that 	you responded directly to 	the
Federation after receipt 	of 	their 	letter, 	but 	through the 	charge
you 	contend that 	"material 	changes" 	have 	occurred since 	the
seniority date 	issue was 	last 	grieved, 	including the 	appointment
of a new District general 	counsel, 	replacing Sue Shelley, 	in June
1994; 	the 	appointment of 	a new District 	chancellor in September
1996; 	and the 	installation of 	three newly-elected District 	board
members 	in December 	1996.
Discussion
In order to 	state 	a prima 	facie 	case 	involving a breach of 	the
duty of 	fair representation, 	facts must be 	alleged in the 	charge
indicating how 	and 	in what 	manner 	the 	Federation 	refused 	to
process 	a meritorious grievance 	or otherwise 	fulfill 	its 	duty for
arbitrary, 	discriminatory or bad faith reasons. 	In United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258,
the 	Board 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a grievance does not
constitute 	a breach of 	the union's duty.
In order 	to 	state 	a prima 	facie 	case 	of 	arbitrary conduct
violative 	of 	the duty of 	fair representation, 	a charging party:
. 	. 	. must, 	at a minimum, 	include an
assertion of 	sufficient 	facts 	from which 	it
becomes 	apparent 	how or 	in what 	manner 	the
exclusive 	representative's 	action 	or 	inaction
was without 	a 	rational 	basis 	or devoid of
honest 	judgment.
(Reed District Teachers Association, 	CTA/NEA
(Reyes) 	(1983) 	PERB Decision No. 	332, 	citing
Rocklin 	Teachers 	Professional 	Association
(Romero) 	(1980) 	PERB Decision No. 	124. 	See
also Los Rios 	College Federation of 	Teachers
(Baker et. 	al.) 	(1991) 	PERB Decision No. 	877,
Los 	Rios 	College 	Federation of 	Teachers
(Violett) 	(1991) 	PERB Decision No. 	889, 	and
San Diego Teachers Association 	(1991) 	PERB
Decision No. 	902.)

Warning 	Letter
SA-CO-383
February 28, 	1997
Page 5
It 	is, 	further, 	the charging party's burden to show how an
exclusive 	representative 	has 	abused 	its 	discretion. 	(United
Teachers of Los Angeles 	(Vigil) 	(1992) 	PERB Decision No. 	934.)
The 	"considerable 	discretion" 	accorded an 	exclusive
representative 	"includes 	the 	exclusive 	representative's 	ability
to decide 	in good 	faith that 	even a meritorious 	employee
grievance 	should not be pursued." 	(Los 	Rios 	College 	Federation
of Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1133, 	citing
United Teachers of Los Angeles 	(Clark) 	(1990) 	PERB Decision No.
796.)
Your 	filing of 	the 	most 	recent 	seniority date 	grievance 	was 	based
on the 	amended 	language 	of Article 	2, 	Section 2.10.3 	and the
"material 	changes" 	in key District personnel 	(general 	counsel,
chancellor and board of 	trustees members). 	The 	Federation
responded 	initially that 	it 	disagreed that 	any 	"material 	changes"
had 	transpired 	and 	declined 	to 	represent 	you because 	they believe
your grievance 	lacks merit. 	The 	Federation, 	in responding to the
various 	amendments to this 	charge and those 	in SA-CO-382, 	has
elaborated on 	its 	reasons 	for not 	believing the 	language 	of
Article 	2, 	Section 2.10.3 	applies 	to your situation.
The 	analysis 	required here 	is 	not 	whether your grievance 	has
merit. 	The 	issue 	raised by your charge 	is whether the
Federation's 	decision declining 	to 	advance your grievance 	lacks 	a
rational basis. 	(See Reed District Teachers Association. 	CTA/NEA
(Reyes), 	supra, 	and like cases cited above.)
Your position emphasizes 	two key points: 	(1) 	The Federation's
earlier reliance 	on the 	"Sue 	Shelley factor" 	in determining not
to proceed with your grievances, 	and the 	fact 	that 	Shelley is 	no
longer with the 	District, 	requires 	finding their most 	recent
decision not 	to represent you lacks a rational basis; 	and 	(2) 	the
Federation's 	swift 	response 	denying your 	request 	is 	itself
evidence 	they 	failed to give 	it 	fair or honest 	consideration.
The 	first prong of this argument, 	as 	summarized above, 	relies
heavily on your 	selective 	quotation of 	the 	testimony of 	Robert
Perrone, 	the Federation's executive director, 	from the hearing in
SA-CO-314. 	A review of 	the 	complete 	transcript 	of 	that
proceeding reveals, 	however, 	that 	the portions quoted are
presented somewhat 	out of 	context. 	Perrone, 	prior to talking
about 	the 	role 	Sue 	Shelley might play in resolution of 	the
issues, 	first 	testified that 	the 	Federation
concluded that 	based on 	the 	opinion of 	our
attorney, 	that 	the grievances were not
tenable 	as grievances 	as violations of 	the

Collective Bargaining Agreement. 	[Reporter's
Transcript, 	Volume III, 	page 52.]
Warning 	Letter
SA-CO-383
February 28, 	1997
Page 6
The 	Federation president 	had earlier 	in 	the 	hearing given 	similar
testimony as 	to 	the 	conclusion drawn on the 	advice 	of 	the
attorney.5 In both cases, 	the witnesses were referring to 	the
same 	"attorney-client" 	letter which your charge 	cites.
Perrone 	continued his 	testimony by describing how 	the 	Federation,
despite 	the 	conclusion that 	the grievances were not 	tenable, 	had
an interest 	in pursuing the 	issues 	in them with the District, 	but
determined to 	await 	the 	retirement 	of 	Sue 	Shelley.
The only factual 	allegation 	in your charge, 	apart 	from those
describing your protected activity, 	which addresses
discriminatory motive 	on 	the part 	of 	the 	Federation 	concerns 	the
Federation's publication of 	articles 	in 	its 	internal 	publications
which "openly, 	repeatedly and notoriously . 	. 	. 	express its
hostility and animus 	toward Deglow because 	of 	her 	exercise 	of
EERA rights." 	This 	allegation references 	five 	Federation
publications 	which have 	themselves 	been 	the 	subject 	of 	earlier
unfair practice 	charges. 	Several 	of 	these 	same publications were
considered by the 	Board 	in Los 	Rios 	College 	Federation of
Teachers, 	CFT/AFT Local 2279 	(Deglow) 	(1996) 	PERB Decision No.
1140. 	The 	Board dismissed your charges 	in that 	decision under a
DFR analysis, 	and reaffirmed its earlier warnings 	to you6 that
you were 	"approaching the standard 	. 	. 	. 	whereby sanctions are
appropriate" 	based on the 	frequency and number of 	unsuccessful
charges you have 	filed. 	(Ibid.) 	Another unfair practice 	charge
(SA-CO-366), 	also based on articles referenced by the 	instant
charge, 	was withdrawn shortly after issuance of 	PERB Decision No.
1140. 	Under these circumstances, 	I 	am precluded from basing a
finding 	that 	the 	Federation breached 	its 	DFR on 	these 	same
articles.
Given 	the 	entire 	set 	of 	circumstances 	and history 	involved 	in
your 	request 	that 	the 	Federation represent 	you on a new 	seniority
date grievance, 	the 	facts 	-- 	including the 	fact 	that 	they
responded without 	delay 	- - d o 	not 	establish prima 	facie 	evidence
that 	the 	Federation's 	conduct was arbitrary, 	capricious or
discriminatory, 	or, 	in other words, 	"without a rational basis or
devoid of 	honest 	judgment." 	(Ibid.)
5Reporter's Transcript, 	Volume II, 	page 183.
6The 	Board cited Los 	Rios 	College 	Federation of 	Teachers
(Deglow) 	(1996) 	PERB Decision No. 	1133 	and Los Rios College
Federation of Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1137.

Warning 	Letter
SA-CO-383
February 28, 	1997
Page 	7
The Board's 	earlier decision 	in Los Rios 	College 	Federation of
Teachers 	(Deglow) 	(1996) 	PERB Decision No. 	1133 	sets 	forth an
additional 	reason why the 	instant 	charge must 	be 	dismissed. 	In
that 	decision, 	the Board concluded that 	the doctrine 	of
collateral 	estoppel 	bars 	you 	from using a 	seniority date-
grievance 	to 	support 	allegations 	the 	Federation has 	breached 	the
duty of 	fair 	representation.
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 Third 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 March 7, 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
Les 	Chisholm
Regional 	Director