Los Rios College Federation of Teachers (Deglow) (PERB 1350E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW, )

Charging Party, ) Case No. SA-CO-424
)
Vv. ) PERB Decision No. 1350
)
LOS RIOS COLLEGE FEDERATION OF ) September 29, 1999

TEACHERS/CFT/AFT/LOCAL 2279,

Respondent.

wer

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) from 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.

failed 	to 	represent 	her 	in pursuing 	seven 	grievances 	challenging
the Los 	Rios 	Community College District's 	(District) 	out-of-
sequence evaluations of her during the Spring of 	1998. 	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:
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
from prejudicial 	error and adopts 	them as 	the 	decision of 	the
Board 	itself.
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.
ORDER
The partial dismissal 	charge 	in Case No. 	SA-CO-424 	is hereby
AFFIRMED.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
33

STATS OF CALIFORNIA 	* 	GRAY DAVIS, Govern
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 25, 1999
Annette 	(Barudoni) 	DeGlow
Re: 	Unfair Practice Charge No. 	SA-CO-424
Annette 	(Barudoni) 	DeGlow v. 	Los Rios College
Federation of 	Teachers/CFT/AFT/Local 	2279
PARTIAL DISMISSAL LETTER
Dear Ms. DeGlow:
The above-referenced unfair practice charge, 	filed on December 7,
1998, 	alleges that the Los Rios College Federation of Teachers
(Federation) 	caused or attempted to cause the Los Rios Community
College District's 	(District) 	to violate the EERA in violation of
EERA section 3543.6(a).
I indicated to you, 	in my attached letter dated May 19, 	1999,
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 May
26, 	1999, 	the charge would be dismissed. 	At your request, 	I
extended this deadline to June 15, 	1999.
On June 15, 	1999, 	you filed an amended charge. 	You state that
the purpose of 	the amended charge is 	to provide additional
documentation to demonstrate that 	the District and the 	Federation
have accepted your work-related disability, 	to demonstrate that
the aforementioned grievances were meritorious, 	to reiterate your
that 	the Federation breached its duty of fair representation, 	to
demonstrate a 	connection between your protected activity and the
Federation's decision not to represent you, 	and to update the
record regarding the damage caused by the 	Federation's decision
not to represent you. 	The charge allegations and arguments are
discussed below.
In the fall of the 1997-98 school year, 	the District performed an
evaluation of 	charging party. 	The District rated charging party
"Needs Improvement" 	in 7 out of 17 categories, 	and rated charging
party "Needs Improvement" 	overall. 	In addition, 	the evaluation
committee 	recommended that 	charging party not be assigned to
teach Math 52 	(Geometry) 	again until her depth of knowledge of
geometry could be documented. 	After some negotiations, 	the
(i)
•

SA-CO-424
Partial 	Dismissal 	Letter
June 25, 1999
Page 2
Federation agreed to represent 	charging party in challenging the
unfavorable evaluation.
During the Spring of 1998, 	the District 	informed charging party
that 	it 	intended to re-evaluate her to determine whether to
assign her to teach Geometry in the fall. 	The District 	informed
charging party that 	she had the option to refuse the re-
evaluation.
The District evaluated charging party on March 23, 	March 25, 	and
15, 	1998. 	In July of 1998, 	charging party filed seven 	(7)
grievances 	challenging the conclusions of 	this evaluation.
Charging party 	requested 	Federation 	representation 	in pursuing
those grievances. 	By letter dated July 10, 	1998, 	the Federation
declined to represent 	charging party in pursuing these
grievances. 	The Federation indicated that an arbitrator had
recently held that 	the collective bargaining agreement 	(CBA)
permitted employees 	to grieve only procedural 	errors 	in the
evaluation process. 	Since charging party's grievances 	challenged
ratings and recommendations rather than procedural defects, 	the
Federation decided not to pursue the seven grievances. 	Further,
since each of 	the seven grievances 	concerned the same operable
facts, 	the Federation determined that pursuing the grievances
would place an unnecessary strain on its 	resources.
The amended charge alleges 	that the Federation's 	failure to
represent 	charging party in her grievances 	either caused or was
an attempt 	to cause the District to violate the EERA. 	In order
to state a violation of EERA section 3543.6 (a), 	a charge must
allege 	facts demonstrating 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 or in
what manner the Federation caused or attempted to cause the
District 	to discriminate or retaliate against 	charging party.
Further, 	the charge provides no support for the interesting
proposition that 	the 	failure 	to pursue a grievance could actually
be the cause of the allegedly grievable conduct. 	PERB case law,
including those cases noted above, 	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. 	Accordingly,
this allegation is dismissed.
( (
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- 	- 	---------

SA-CO-424
Partial Dismissal 	Letter
June 25, 1999
Page 3
Based on the 	facts and reasons 	contained herein and in my May 19,
1999 letter, 	the this portion of charge is dismissed.
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"
( \ 	(

SA-CO-424
Partial Dismissal 	Letter
June 25, 1999
Page 4
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
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 Charles Sakai
Board Agent
Attachment
cc: 	Robert Perrone

c	STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
(i) Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 19, 	1999
Annette 	(Barudoni) 	DeGlow
Re: 	Unfair Practice Charge No. 	SA-CO-424
Annette 	(Barudoni) 	DeGlow v. 	Los Rios College
Federation of Teachers/CFT/AFT/Local 	2279
WARNING LETTER
Dear Ms. DeGlow:
You 	filed the above-referenced unfair practice 	charge on December
7, 	1998. 	We have discussed this and two related charges on a
number of occasions, 	both in person and over the telephone. 	This
charge alleges 	that the Los Rios College Federation of Teachers
(Federation) 	breached the duty of fair representation guaranteed
by EERA section 3544.9 	and 	thereby violated section 3543.6(b)
when it 	failed to represent you in pursuing seven grievances
challenging the Los Rios 	Community College District's 	(District)
out-of-sequence evaluations 	of 	charging party during the Spring
of 1998. 	The charge alleges the following facts.
The District 	is a public school employer within the meaning of
the Educational Employment Relations Act 	(EERA). 	Charging party
is an employee within the meaning of the EERA. 	The Federation is
an employee organization within the meaning of 	the EERA and the
exclusive representative of the bargaining unit that includes
charging party. 	The District and the Federation are parties to a
collective bargaining agreement 	(CBA) 	effective from July 1, 	1996
through June 30, 	1999. 	Section 8.10.2.2 of the CBA provides
that, 	"[a] 	faculty member who alleges a violation of the review
process 	in his or her evaluation may use the grievance procedures
. under this agreement."
Over the past several years, 	charging party has vigorously
pursued her rights under the EERA in a number of unfair practice
charges and grievances 	filed against both the District and the
Federation. 	Both the District and the Federation were aware of
charging party's exercise of her protected rights.
In the fall of the 1997-98 school year, 	the District performed an
evaluation of 	charging party. 	The District rated charging party
"Needs Improvement" 	in 7 out of 17 categories, 	and rated charging
party "Needs Improvement" 	overall. 	In addition, 	the evaluation
committee 	recommended that 	charging party not be assigned to
teach Geometry again until her depth of knowledge of geometry
could be documented. 	After some negotiations, 	the Federation

agreed to 	represent 	charging party in challenging the unfavorable
evaluation.
During the Spring of 1998, 	the District 	informed charging party
that 	it 	intended to re-evaluate her to determine whether to
assign her to teach Geometry in the fall. 	The District 	informed
charging party that 	she had the option to refuse the re-
evaluation.
The District observed charging party's 	class on three occasions
and performed student evaluations on one of those days. 	In July
of 1998, 	charging party filed seven 	(7) 	grievances challenging
the Spring 1998 evaluation. 	Charging party faxed copies of 	these
grievances 	to the Federation.
By letter dated July 10, 	the Federation declined to represent
charging party in pursuing these seven grievances. 	A recent
arbitration decision had held that an employee 	could grieve 	only
procedural violations of the CBA's evaluation procedures.
However, 	charging party's grievances focused exclusively on the
ratings and recommendations of the evaluation committee. 	In
addition, 	each of the seven grievances concerned the same
operable facts, 	and the Federation was 	concerned that seven
proceedings 	would be duplicative and would place unnecessary
strain on Federation's 	"legal, 	financial, 	and representational"
resources. 	Charging party had not 	consulted the Federation
regarding the wording of the grievances, 	the remedy requested, 	or
the tactic of 	filing multiple grievances 	concerning the same
issues. 	For the foregoing reasons, 	the Federation declined to
represent charging party in the grievance process. 	The CBA
permits 	charging party to file and pursue grievances without the
Federation's assistance.
The charge alleges that the Federation breached the duty of fair
representation guaranteed by EERA section 3544.9 	and thereby
violated section 3543.6(b). 	The duty of fair representation
imposed on the exclusive representative extends 	to grievance
handling. 	(Fremont Teachers Association 	(King) 	(1980) 	PERB
Decision No. 	125; United Teachers of Los Angeles 	(Collins) 	(1982)
PERB Decision No. 	258.) 	In order to state a prima facie
violation of this section of EERA, 	Charging Party must show that
the Federation's conduct was arbitrary, 	discriminatory, 	or in bad
faith. 	In United Teachers of Los Angeles 	(Collins). 	the Public
employment Relations 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.
[Citations.]
2
( 	(
2

A union may exercise 	its discretion to determine how far to
pursue a grievance 	in the employee's behalf as long as 	it does
not arbitrarily ignore a meritorious 	grievance or process a
grievance in a perfunctory fashion. 	A union is also not required
to process an employee's grievance if 	the chances 	for success are
minimal.
In order to state a prima facie case of arbitrary conduct
violating 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. 	(Emphasis added.) 	[Reed
District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) 	PERB Decision No. 332, p. 9,
citing Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No.
124.)
In this case, 	charging party alleges that the Federation's
decision not 	to represent her in challenging the Spring 1998
evaluations was arbitrary, 	discriminatory and in bad faith.
However, 	there is no evidence that the Federation arbitrarily
ignored these grievances. 	As the Federation noted, 	charging
party had the option to forego the Spring 1998 evaluations.
While charging party's decision not to do so is understandable,
the Federation's belief 	that 	the seven grievances did not allege
facts 	that violated the CBA is also reasonable. 	Nothing provided
in the charge indicates that 	the Federation's decision not to
pursue grievances 	challenging the Spring 1998 	evaluations was
without a rational basis.
Charging party also alleges 	that 	the Federation's decision not to
challenge the Spring 	1998 	evaluations 	constituted discrimination
in violation of EERA section 3543.6(b). 	In analyzing allegations
of discrimination violating the duty of 	fair representation, 	the
Board follows 	the principles applicable for violations of EERA
section 3543.5(a), 	a parallel provision prohibiting employer
interference and reprisals. 	(Service Employees International
Union. 	Local 99(Kimmett) 	(1979) 	PERB Decision No. 	106, at p. 	13.)
In order to prevail on a discrimination theory, 	the charging
party must 	establish that 	the employe	.. . e was 	engaged in protected
activity, 	that the activities were known to the employee
organization and that 	the employee organization took adverse
action against 	the employee because of 	the protected activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210 at
pp. 	5-6 	(Novato).) 	The Board has long recognized that, 	because
motivation is a state of mind which may be known only to the
2
(
3

actor, 	direct proof of unlawful motivation is rarely possible.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89 at
p. 	11.) 	Accordingly, 	the Board recognizes the following
circumstantial indications of unlawful motivation: 	(l) 	the
proximity of 	time between the protected activity and the adverse
action; 	(2) 	disparate treatment of the affected employee(s); 	(3)
departure from established procedures; 	(4) 	inconsistent or
contradictory justifications 	for the employer's actions; 	and 	(5)
inadequate investigation. 	(Novato at p. 	7.)
In this 	case, 	charging party has engaged in substantial protected
activity. 	Further, 	the Federation was certainly aware of
charging party's protected activities. 	However, 	charging party
has 	failed to establish the 	requisite 	connection between her
protected activity and the 	Federation's 	decision not 	to 	challenge
her reassignment.
Charging party contends that the Federation's refusal 	to pursue
her grievances 	constituted disparate 	treatment. 	Charging party
bases this contention on the fact that, 	during the past two
years, 	the Federation has pursued two grievances concerning
academic 	freedom on behalf of other instructors. 	A finding of
disparate treatment 	is a finding that others have been treated
differently for similar or identical 	conduct or in a similar
situation. 	(See, 	e.g. Belridge School District 	(1980) 	PERB
Decision No. 	157.) 	Here, 	there is no allegation that the two
other grievances arose under similar circumstances. 	The charge
merely alleges that all three grievances 	raised the issue of
academic freedom. 	Obviously, 	two grievances may raise the sam
issue and yet have very different bases. 	Further, 	an arbitrator
denied one of 	the academic 	freedom grievances 	referenced in the
charge. 	As noted above, 	the Federation chose not to represent
charging party in part because of 	the arbitrator's decision in
that case. 	Under these circumstances, 	the Federation's decision
not to represent charging party's grievances does not constitute
disparate treatment.
Charging party also contends 	that 	the Federation deviated from
its established policies when it declined to pursue her
grievances. 	Charging party alleges 	that the Federation has
sometimes pursued grievances 	on behalf 	of 	the bargaining unit
without unit members' 	permission and represented charging party
in a 1994 grievance challenging a below-average evaluation. 	It
is not clear, 	however, 	that the Federation had any established
policy of providing representation for all 	grievances or that 	the
Federation's conduct in ...this case deviated from its established
procedures 	for dealing with grievances.
Charging party also contends 	that 	the Federation has provided
inconsistent 	justifications 	for its decision not to represent her
in the seven grievances. 	However, 	there is no evidence that the
Federation provided any reasons different 	from those 	stated in
4
( 	(
4

its July 10 	letter. 	Although the Federation indicated in early
March that 	it would be willing to represent a grievance
challenging the Spring 1998 evaluations, 	the District
subsequently gave 	charging party the option not 	to undergo the
evaluations. 	This 	fact apparently weighed heavily in the
Federation's decision not 	to pursue these grievances. 	(See
Warning Letter Case No. 	SA-CE-420.)
Charging party also claims 	that 	the Federation performed an
inadequate investigation into her grievances. 	However, 	while
charging party clearly disagrees with the 	results 	of the
Federation's investigation, 	the charge does not provide any facts
demonstrating 	that 	the 	Federation did not 	adequately 	investigate
the grievances.
Finally, 	charging party contends that the Federation failed to
offer an adequate justification for its decision not 	to represent
her in the seven grievances. 	However, 	there is nothing in the
charge which explains why the rationale set forth in the
Federation's July 10, 	1998 letter was insufficient.
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 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
amended charge or withdrawal from you before May 26. 	1999 	. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Charles Sakai
Board Agent