College of the Canyons Faculty Association (Lynn) (PERB 1706E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CINDY LYNN,
Charging Party,
v.
COLLEGE OF THE CANYONS FACULTY
ASSOCIATION,
Respondent.
Case No. LA-CO-1127-E
PERB Decision No. 	1706
November 	1 6 , 	2004
Appearances: 	Cindy Lynn, on her own behalf; California Teachers Association by John F.
Kohn, Attorney, for College of the Canyons Faculty Association.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on exceptions filed by Cindy Lynn (Lynn) to an administrative law judge's (ALJ) proposed
decision (attached). 	The underlying unfair practice charge alleged that the College of the
Canyons Faculty Association (Association) violated the Educational Employment Relations
Act (EERA)1 by breaching its duty of fair representation. 	The ALJ's found that Lynn failed to
establish that the Association breached its duty of fair representation.
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, Lynn's exceptions and the Association's response. The Board finds the ALJ's
findings of fact and conclusions of law to be free of prejudicial error and adopts them as the
decision of the Board itself.
EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge and complaint in Case No. LA-CO-1127-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CINDY LYNN,
Charging Party,
v.
COLLEGE OF THE CANYONS FACULTY
ASSOCIATION, CCA/CTA/NEA,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-1127-E
PROPOSED DECISION
(7/30/04)
Appearances: 	Cindy Lynn, in propria persona; California Teachers Association by John F.
K0hn, Attorney, for College of the Canyons Faculty Association, CCA/CTA/NEA.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
On February 16, 2003, Cindy Lynn (Lynn) filed an unfair practice charge with the
Public Employment Relations Board (PERB or Board) against the College of the Canyons
Faculty Association, CCA/CTA/NEA (COCFA). The charge alleged various violations of the
Educational Employment Relations Act (EERA or Act).1
On July 24, 2003, PERB's general counsel, after an investigation of the charge, issued a
complaint alleging violations of subdivision (b) of section 3543.6.2
All section references, unless otherwise noted, are to the Government Code. EERA is
codified at section 3540, et seq.
2 Subdivision (b) of section 3543.6 states that it shall be unlawful for an employee
organization to:
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.

On August 11, 2003, COCFA answered the complaint denying all material allegations
and propounding various affirmative defenses. 	An informal conference was held on
September 22, 2003, in an unsuccessful attempt to reach a voluntary settlement. 	One day
of formal hearing was held before the undersigned on February 2, 2004.
After the conclusion of the hearing, transcripts were prepared, and briefs were filed.
The case was submitted for a proposed decision on May 6, 2004.
INTRODUCTION
Lynn, a College of the Canyons (College) employee, alleges that over several years she
left messages for COCFA elected officials and a staff member concerning her allegation that
she was being required to work more than the 35 hours specified in the faculty's collective
bargaining agreement (CBA). 	She alleges that she received few return calls and no actual
assistance. 	COCFA denies these allegations.
In August 2002, Lynn personally contacted COCFA's staff employee, Ray Barney
(Barney), regarding her overtime claim. 	Barney advised her to meet with COCFA's grievance
officer, Lee Corbin (Corbin). 	When she met with Corbin, he told her that her grievance was
barred by the statute of limitations.
Lynn contends that COCFA did not tell her of the existence of a grievance procedure
until September 2002, at which time her complaint was barred by a CBA ten-day limitation.
FINDINGS OF FACT
Jurisdiction
The parties stipulated, and it is therefore found, that the charging party is a public
school employee, and COCFA is an employee organization and an exclusive representative
within the meaning of EERA.
2

Background
Prior to the 1996-97 school year, Lynn was employed by the College as an hourly
employee. 	Beginning in September 1996, she was promoted to the position of "Head Teacher"
at the College's Child Development Center (Center) as a salaried full-time member of the
faculty. Lynn contends that at the time she started in this position, she was told that her
position only required her to work 35 hours per week. 	She did not identify the person that
made this statement. 	She supported this contention with a reference to CBA Article 11, which,
in pertinent part, states:
ARTICLE 11: WORKLOAD AND WORK DAYS
The normal workday for full-time counseling faculty members
who are members of the bargaining unit shall be seven (7) hours
of campus related duty (prorated for part-time counselors).
(Emphasis added.)
Contacts with Stewart
At the end of her first school year, she went to her immediate supervisor, Diane Stewart
(Stewart), and asked her to clarify the 35-hour issue. 	Stewart told her that her position was not
limited by the CBA 35-hour maximum. 	Stewart said that the Center was open from 7:30 a.m.
to 4:30 p.m. five days a week, and Lynn was required to be there during that entire time.
Contacts with Hartley
She next went to Dr. Phillip Hartley (Hartley), Stewart's immediate supervisor and the
College's vice superintendent. 	Lynn contends that Hartley told her that she (Lynn) was
considered a full-time counseling faculty member, because her position was not an
instructional position. 	Lynn admits that Hartley also told her that most faculty worked more
than 35 hours each week, and she was not entitled to overload pay. Hartley did not testify, so
there was no direct ratification or rebuttal of Lynn's allegation. However, there is no mention
of a 35-hour workweek in any of Lynn's employment documentation, including the official
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College job description. Hartley suggested that she contact Lea Templar (Templar), COCFA's
2001-02 president.
Contacts with Templar
Lynn attempted to contact Templar, but they had some difficulty in reaching one
another (approximately ten calls back and forth). 	They eventually spoke to each other three or
four times. 	Templar remembers that Lynn's primary concerns dealt with overtime,
compensatory time off, overload pay, and the proper number of hours she was required to
work.
Templar told Lynn that the proper number of work hours for a faculty member
depended on the individual's position. 	She also said that (1) the CBA did not specifically set
forth a maximum number of hours for faculty members, and (2) even for those positions that
were within the parameters of CBA Article 11, no overtime or compensatory time off is
available. 	Lynn denies Templar made these last two statements.
Templar contends she also explained to Lynn that her head teacher position at the
Center did not come within the 35-hour standard set forth in CBA Article 11 for two reasons
(1) it was "instructional" and (2) it was not a counseling position. However, Templar admits
that all full-time faculty who are not instructors do fall within this 35-hour limitation, even
though its only specific reference is to faculty that are counselors.
Templar advised Lynn to go to Stewart, her immediate supervisor. Lynn explained she
had already done that. 	Then Templar suggested she go to Hartley. Lynn explained that she
had already seen him. However, she contacted him again, but still received no substantive
assistance.
Templar did not give Lynn a grievance form, as neither COCFA nor the College had
developed such a form. 	The CBA clearly assigns the responsibility for filing grievances to the
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individual employees, not COCFA. The College had a practice of responding to written
complaints. 	Therefore, formal grievances were not deemed necessary. 	To Templar's
knowledge, there had not been an academic employee grievance filed at the College in years.
Contacts with Morris
In the spring of 2002, Lynn went to Anita Morris (Morris), the College's director of
human resources. 	Morris told her to put her concerns in writing in the form of a formal request
and send it to her. 	Lynn did so, but never heard anything in response.
Contacts with Barney
Lynn explains that she also attempted to speak to Barney, a chapter services consultant
with CTA, who was assigned to COCFA. 	She contends that she originally attempted to
contact Barney several times in 1999, but did not receive a response.3 Barney has no records
or recollection of these alleged 1999 attempted contacts, or any other attempted contacts from
Lynn between 1999 and early 2002.
In May 2002, Lynn left at least one message on Barney's phone. 	Barney admits that he
received that message, but contends that he responded by leaving her a message. 	He states that
he also sent her an e-mail message explaining that he was awaiting her return call. 	Barney
contends that Lynn did not respond to either his telephone or e-mail message.
In August 2002, Lynn introduced herself to Barney at the faculty meeting immediately
prior to the start of the 2002-03 school year. After a short conversation she realized that
Barney was not aware of either her or her problem. 	She had affected an accommodation4
from the College to limit her work week to 35 hours for school year 2002-03, but she wanted
3 Lynn placed great importance on these 1999 attempts to reach Barney. 	She
subpoenaed the College records of her personal phone at the Center in an attempt to show that
she made these calls. Unfortunately for her case, the College did not retain a record of the
telephone numbers called from Lynn's office in 1999.
5

his help in obtaining overtime pay for the prior years in which she worked more than 35 hours
per week.
In their August 2002 conversation, Barney explained to Lynn that the accepted
procedure was to go through chapter officials before she came to him. 	Barney referred Lynn to
Brad Reynolds (Reynolds), COCFA's 2002-03 president. 	She spoke to Reynolds and he
referred her to Corbin, COCFA's grievance officer and a College mathematics professor.
Barney's next, and last, contact with Lynn was when she requested a referral to
California Teachers Association's group legal services referral, which he granted.
Contacts with Corbin
Corbin remembers meeting Lynn during the first week of the 2002-03 school year. It
was in her meeting with Corbin that Lynn first learned of the existence of the CBA grievance
procedure. 	She wanted his assistance in the filing of a grievance. 	Corbin met with her two or
three times. 	The first time was to discuss her grievance. He asked her to write a formal letter
to the College outlining the problem. 	After she wrote it, they went over it, and they mailed it
to the College. 	Corbin went to Hartley to discuss Lynn's allegations.
At their second meeting, Lynn told Corbin that she had discussed her overtime issue
with Stewart earlier that spring. 	He explained that the CBA requires her to file a grievance
within ten days after discussing the matter with her supervisor. 	Therefore, her potential
grievance was barred by this ten-day limitation. However, he agreed to attend a meeting with
her and Hartley to discuss the matter, although this meeting was never held. 	Lynn never did
file a grievance.
This accommodation was not a settlement of her overtime claim, but rather was an
attempt on the college's part to assist her in completing her work on a Master's degree.
66

Contacts with Rohrbacher
In October 2002, Barney arranged for Lynn to meet with a COCFA attorney, Bernard
Rohrbacher (Rohrbacher), regarding a potential legal action against the College to secure
retroactive back pay. However, since she also wanted to pursue legal remedies against
COCFA, Rohrbacher could not continue to discuss her issue, as it would have been a conflict
of interest for him to do so.
Lynn's Contention
It is Lynn's contention that all faculty are divided into two groups, instructional and
non-instructional. 	She contends that she was in the latter category. 	Therefore, her position fell
under the 35-hour maximum limitation, even though she was not a counselor. 	She insists that
there was no other category in which to place her. 	She cites no CBA provision, College rule or
regulation, or any other authority to support this contention, other than her statement that
(1) when she was first given the head teacher position, she was told by some unknown person,
that the 35-hour limitation applied to her position, and (2) Hartley told her, sometime prior to
2002, that she was considered a counseling faculty member, because her position was not
"instructional."
COCFA's Contention
COCFA insists that it assisted Lynn every time she asked for help, but her underlying
complaint regarding her 35-hour workweek was not meritorious.
ISSUE
Did COCFA fail to meet its duty of fair representation with regard to Lynn's overtime
grievance, thereby violating subdivision (b) of section 3543.6?
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CONCLUSIONS OF LAW
Standard for a Duty of Fair Representation
In order to establish a violation of the duty of fair representation,5 the charging party
must provide persuasive evidence that the employee organization's conduct was arbitrary,
discriminatory or in bad faith. 	(Rocklin Teachers Professional Association (1980) PERB
Decision No. 124 (Rocklin)), citing precedent set by the National Labor Relations Board and
affirmed by the U. S. Supreme Court in Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369].)
The Board in Rocklin. affirmed this concept, as set forth in Griffin v. United Auto
Workers (4 th Cir. 1972) 469 F.2d 181 [81 LRRM 2485], as follows:
. . . A union must conform its behavior to each of these standards.
First, it must treat all factions and segments of its membership
without hostility of discrimination. 	Next, the broad discretion of
the union in asserting the rights of its individual members must
be exercised in complete good faith and honesty. 	Finally the
union must avoid arbitrary conduct. Each of these requirements
represents a distinct and separate obligation, the breach of which
may constitute the basis for civil action.
The repeated references in Vaca to "arbitrary" union conduct
reflected a calculated broadening of the fair representation
standard. . . . Without any hostile motive of discrimination and in
complete good faith, a union may nevertheless pursue a course of
action or inaction that is so unreasonable and arbitrary as to
constitute a violation of the duty of fair representation. . . .
In this case Lynn has two primary allegations: (1) she was entitled to receive additional
salary because she was required to work more than the 35-hour CBA maximum, and
(2) COCFA did nothing to assist her in obtaining this additional salary.
EERA's duty of fair representation is set forth in section 3544.9, as follows:
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.
8

Lynn's first allegation is unsupported by persuasive evidence. 	There is no doubt that
she was not a counselor. However, the issue of whether or not her position was "non-
instructional," and therefore entitled to the CBA Article 11 hourly maximum is admittedly not
clear. 	The only evidence supporting her contention is (1) some unidentified person, at the time
of her promotion to head teacher, told her that her new position was governed by Article 11,
and (2) Hartley told her that she did not have an "instructional" position.
On the other hand, the evidence rebutting her allegation is consistent and pervasive.
She was told by (1) Stewart, (2) Hartley, (3) Templar, and (4) Morris that her position was not
within the parameters of CBA Article 11.
Her second allegation, that COCFA did nothing to assist her, is rendered moot by the
conclusion set forth above. 	A union is not required to pursue grievances that are unmeritorious
grievances. (See United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.)
However, even if Lynn's claim had been meritorious, the evidence clearly shows that
COCFA met its statutory obligations. 	Templar, Barney, Reynolds, Corbin, and Rohrbacker all
discussed Lynn's concerns and attempted to provide some assistance for her. 	The fact that the
grievance procedure was not explained until her claim was barred is unfortunate, but there are
two reasons this does not support a conclusion that COCFA failed to meet its duty to Lynn.
First, the evidence suggests that the College's history is one'of accommodation, not
confrontation. 	According to Templar, there had not been an academic grievance filed at the
College in years. 	Secondly, the CBA vests the responsibility of filing grievances on the
individual employee, not COCFA. 	Certainly, the association is responsible for providing
advice and expertise, but Lynn had a concomitant responsibility to read the CBA, learn of her
right to file a grievance, and to take the steps necessary to do so. 	She cannot fault COCFA for
her personal failure to take this action.
99

The evidence failed to show that (1) any COCFA representative acted in an arbitrary
manner, (2) Lynn was treated discriminatorily in that her issues were handled differently from
those of any other member of the bargaining unit, or (3) that anyone manifested any bad faith
in the manner in which s/he assisted her.
Summary
It is determined that COCFA did not violate its duty of fair representation with regard
to Lynn's allegations regarding overtime pay in her position as head teacher at the College.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire
record in this case, it is concluded that the College of the Canyons Faculty Association,
CCA/CTA/NEA, did not violate the Educational Employment Relations Act, Government
Code section 3543.6(b). It is ORDERED that all aspects of the complaint, and its underlying
charge, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
10

In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 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 California Code of Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Allen^RJLink
Administrative Law Judge
11