Los Rios College Federation of Teachers, Local 2279 (Deglow) (PERB 1515E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANNETTE (BARUDONI) DEGLOW,
Charging Party, Case No. SA-CO-452-E

y. PERB Decision No. 1515

LOS RIOS COLLEGE FEDERATION OF April 3, 2003

TEACHERS, LOCAL 2279,

Respondent.

Appearance: Annette (Barudoni) Deglow, on her own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Annette (Barudoni) Deglow (Deglow) to a Board agent’s
dismissal (attached) of her unfair practice charge. Deglow filed an unfair practice charge
alleging that the Los Rios College Federation of Teachers, Local 2279 (Federation) violated
the Educational Employment Relations Act (EERA)! by refusing to reopen Grievance 5-S94 or
file a new grievance against Los Rios Community College District (District) for its reference to
a 1994 “needs improvement” evaluation in a letter to the Department of Fair Employment and
Housing (DFEH). She alleged that the Federation’s failure to represent her in the grievance
violated EERA sections 3543.6(a) and (b), and 3544.9° for breach of the duty of fair

representation, discrimination for engaging in protected conduct, and causing the District to

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

*Section 3543.6 provides, in pertinent part:

discriminate against Deglow. After her investigation, the Board agent dismissed the charge for
failure to state a prima facie case. The Board has reviewed the entire record in this case,
including the original and amended charge, the Board agent's warning and dismissal letters,
and Deglow's appeal. The Board finds the warning and dismissal letters to be free
of
prejudicial error and affirms the decision
of
the Board agent consistent with the following
discussion.
DISCUSSION
The charge specifically alleged that in the spring
of
1994, Deglow received a "needs
improvement" performance evaluation from the District. She grieved the evaluation with the
assistance
of
the Federation. The District later reevaluated Deglow in the fall
of
1994, gave
her a "meets standards" rating, and in its response to Deglow's grievance, stated that the latter
evaluation would preclude use
of
the spring 1994 evaluation in any disciplinary process.
	By
letter dated April 14, 2000, the District referred to the spring 1994 evaluation in its response to
a complaint filed by Deglow against the District with DFEH. Deglow further alleges that in
the letter, the District acknowledged that it considered the spring 1994 evaluation in its
decision to reassign Deglow from teaching geometry to algebra in fall 1998. This
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.
Section 3544.9 states:
The employee organization recognized or certified as the
exclusive representative for the purpose of meeting and
2

reassignment also terminated the disability accommodation program that Deglow had
developed to teach geometry. She alleges that the District's reference to the poor evaluation
and its acknowledgment
of
its use in the decision to reassign Deglow breached the terms
of
the
1994 grievance settlement. Deglow thereafter requested the Federation to represent her and the
Federation refused. The Federation reasoned that neither the citation
of
the spring 1994
evaluation in the April 2000 letter nor the District's use
of
the evaluation in its decision to
reassign Deglow was a form
of
discipline. The Federation further interpreted the April 2000
letter to state that the District's decision to reassign Deglow was based upon more recent
evaluations.
The real crux
of
this matter is the Federation's failure to grieve the 1998 reassignment
ofDeglow's classes and the termination
of
Deglow's disability accommodation program on
Deglow's behalf. These issues were the subject
of
a previous grievance and unfair practice
charge timely filed in August 1998. (See Los Rios College Federation
of
Teachers/CFT/AFT/Local 2279 (Deglow) (1999) PERB Decision No. 1348 (Los Rios CFT).)
The allegations in this charge involve a new spin on outdated facts from a previous charge
dismissed by the Board. In that case, Deglow charged that the Federation failed to represent
her in a grievance against the District for reassigning her from teaching geometry to algebra in
fall 1998 and for the resulting termination
of
her disability accommodation program.
The heart
of
the instant matter is that the Federation is failing to represent Deglow in a
grievance against the District for essentially the same issues. Deglow's grievance claims that
the District acknowledged, in a letter to DFEH, that it used the negative spring 1994
performance evaluation as a basis for reassigning her from teaching geometry to algebra in fall
negotiating shall fairly represent each and every employee in the
appropriate unit.
3

1998 in violation
of
the resolution
of
Grievance 5-S94. What this charge alleges is that
Deglow has found new evidence to support challenges to her reassignment, which occurred
almost three years before she filed the charge in this matter. Those same issues were
previously addressed and dismissed
by
the Board.
Also in this matter, Deglow has provided voluminous irrelevant documents and
reiterates countless allegations
of
wrongs imposed by the District and the Federation alleged in
other unfair practice charges occurring over a 10 year period before the filing
of
the instant
charge. PERB's decision index lists
15
Board decisions involving Deglow's charges against
the Federation, the majority
of
which affirm dismissals by Board agents. In several
of
these
decisions, the Board has advised Deglow that her repeated filings
of
the same charges over the
same circumstances constitute an abuse
of
process. (See e.g., Los Rios College Federation
of
Teachers (Deglow) (1996) PERB Decision No. 1133; Los Rios College Federation
of
Teachers, CFT/AFT Local 2279 (Deglow) (1996) PERB Decision No. 1137; Los Rios College
Federation
of
Teachers, CFT/AFT Local 2279 (Deglow) (1996) PERB Decision No. 1140;
Los Rios College Federation
of
Teachers, CFT/AFT Local 2279 (Deglow) (1996) PERB
Decision No. 1137; Los Rios College Federation
of
Teachers/CFT/AFT Local 2279 (Deglow)
(1998) PERB Decision No. 1275.) Deglow has been warned in these decisions that her
continued filing
of
frivolous charges over the same subject matter may result in the imposition
of
sanctions. PERB has jurisdiction to order a party to pay the other party's reasonable
expenses, including attorney's fees, for the offending party's bad faith actions or frivolous
tactics. (Sec. 3541.3(i) and (n); Government Code sec. 11455.30.)
Under Los Angeles Unified School District (Watts) (1982) PERB Decision No. 181a
(Watts), the Board may order sanctions only after it has ordered the party to cease and desist
from filing frivolous charges over the same factual and legal issues previously addressed by
4

the Board. (See also, Government Code sec. 11455.l0(e).) The Board has issued such
warnings to Deglow in other matters in the past. Deglow, by filing repetitive charges over
similar issues of fact and law, wastes the resources and money of the responding party and the
Board, the concern addressed in Watts. This is the second charge filed by Deglow addressing
the same issues in Los Rios CFT. The Board on its own motion3 may order Deglow to cease
and desist from filing cases over the same factual and legal issues previously addressed by the
Board and advises her that future filings of this kind may result in sanctions.
ORDER
The unfair practice charge in Case No. SA-CO-452-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND. In addition, the Board hereby orders Deglow to cease and
desist from filing cases over the same factual and legal issues previously addressed by the
Board, and advises her that future filings of this kind may result in sanctions.
Member Neima joined in this Decision.
Member Baker's concurrence begins on page 6.
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 32320 states, in pertinent part:
(a) The Board itself may:
(2) Affirm, modify or reverse the proposed decision, order the
record re-opened for the taking of further evidence, or take such
other action as it considers proper.
5

BAKER, Member, concurring: I agree with the majority that the unfair practice charge
filed by Annette (Barudoni) Deglow (Deglow) must be dismissed. It is a well-settled principle
of
law that a single cause
of
action cannot be split into successive claims. (See Crowley v.
Katleman (1994) 8 Cal.4 th 666,
681
[34 Cal.Rptr. 386]; 4 Witkin, Cal. Procedure (4th ed. 1997)
Pleading, sec. 35.) The legal theories raised by Deglow in this matter should have been raised
in Los Rios College Federation
of
Teachers/CFT/AFT/Local 2279 (Deglow) (1999) PERB
Decision No. 1348.
I write separately only to note that a party's pro per status should be taken into account
by the Board when considering the imposition
of
sanctions. I therefore agree with the
majority's decision not to impose sanctions on Deglow at this time. This does not mean,
however, that Deglow's pro per status immunizes her from sanctions. All parties must comply
with the orders
of
the Public Employment Relations Board. I agree with the majority that
repeated violations
of
the Board's orders will subject a party, in pro per or otherwise, to
sanctions.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
November 2, 2001
Annette Deglow
8424 Olivet Court
Sacramento, CA 95826
GRAY DAVIS, Governor
Re: Annette (Barudoni) Deglow v. Los Rios College Federation of Teachers, Local 2279
Unfair Practice Charge No. SA-CO-452-E
DISMISSAL LETTER
Dear Ms. Deglow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 22, 2001. Your charge alleges that the Los Rios College
Federation of Teachers, Local 2279 violated the Educational Employment Relations Act
(EERA), 1 Government Code section 3543.6(a) and (b), when the Federation refused to
represent you by filing a grievance on your behalf challenging your employer's breach o f a
prior grievance settlement.
I indicated to you in the attached letter dated August 2, 2001, 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, the charge
should be amended. You were further advised that unless the charge was amended to state a
prima facie case or was withdrawn prior to August 20, 2001, the charge would be dismissed.
Your request for an extension of time to file an amended charge was granted. You timely filed
an amended charge on September 18, 2001.
Your charge alleges that your employer, the Los Rios Community College District, conducted
a performance evaluation in Spring 1994 which rated you as "needs improvement." The
Federation agreed to assist you in challenging the evaluation by filing Grievance 5-S94 on
May 26, 1994. Before the grievance was resolved, a follow-up evaluation was issued in
December 1994, which rated you as "meets standards" in all categories.
In response to the grievance challenging the original evaluation, the District stated that the
December 1994 evaluation superseded the Spring 1994 evaluation and, thus, precluded the
Spring 1994 evaluation "being used in any disciplinary process."
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-452-E
November 2, 2001
Page 2
Although you continued to insist that the Spring 1994 be evaluation removed from your
personnel records, the Federation refused to take Grievance 5-S94 to arbitration. The
Federation assured you in a letter dated January 3, 1995 that "the District has agreed,
in
writing, not to use the original evaluation in any disciplinary process."
Subsequently, the District issued you two additional unsatisfactory evaluations covering the
Fall 1997 and Spring 1998 semesters.
In or about March 1998, the District notified you that you were being reassigned from
Geometry, a course for which you had prepared teaching materials to accommodate an injury
to your voice, to teach Algebra during the Fall 1998 semester. You were opposed to the
reassignment because you had been assured that you would continue to teach Geometry to
accommodate your voice disorder and because you did not have a voice accommodation
program prepared for the new course.
In December 1999, you filed a complaint with the Department
of
Fair Employment andHousing (DFEH) alleging that the reassignment from Geometry to Algebra was in retaliation
for filing prior DFEH complaints.
On January 2, 2001, the DFEH provided you with a copy
of
a letter dated April 14, 2000,
which was written by Lily Cervantes, District Interim Director for Employee Relations, to the
DFEH in response to your complaint. Ms. Cervantes stated that the reason for your
reassignment was based, in part, on your "recent" unsatisfactory evaluations.
The charge states that Ms. Cervantes' letter demonstrates that the District used the Spring 1994
evaluation, in part, as the basis for removing you from the Geometry course. The charge
asserts that this conduct is contrary to the resolution
of
Grievance 5-S94, in which the District
stated it would not use the Spring 1994 evaluation "in any disciplinary process."
The basis
of
your charge against the Federation is that the Federation refused to assist you in
either reopening the original grievance or filing a new grievance to challenge the District's
violation
of
the terms
of
the settlement
of
Grievance 5-S94.
In a January 16, 2001 letter to the Federation, you requested that the Federation take steps
necessary to obtain the District's compliance with the terms
of
the resolution
of
Grievance 5-
S94. The Federation responded on January 23, 2001, stating,
;;It
is our firm belief that there is
no reason for the Federation to revisit grievance 5-S94 because you have suffered no injury
from the District's actions."
You made several additional requests for the Federation's assistance. On March 6, 2001, the
Federation informed you that it would have its legal counsel review the matter. In a letter
dated April 6, 2001, the Federation stated:
We have considered your request that the LRCFT either file a
new grievance concerning Lily Cervantes' April 14, 2000 letter to

SA-CO-452-E
November 2, 2001
Page 3
the Department
of
Fair Employment and Housing, or seek
to
reopen grievance 5-S94, in light
of
Ms. Cervantes' letter. After
consulting with the LRCFT's attorney and researching this issue,
we have concluded that there
is
not a sound factual or legal basis
to
follow either
of
these two possible courses, and that to do
so
would be an unwise use
of
Union resources.
The District wrote in its December 1994 denial
of
your earlier
grievance that it would not use the April 1994 evaluation in any
future disciplinary action. Ms. Cervantes' reference in her
April 14, 2000 letter to the April 1994 evaluation is not a form
of
discipline, nor was the decision to assign you to teach Algebra
classes in 1998-1999 a form
of
discipline. The Cervantes letter
of
April 2000 makes it clear that the 1998-99 class assignment
decision was based on 1997 and 1998 evaluations.
In light
of
these facts, there is no basis for the Union to take any
additional action in this matter.
The amended charge provides a lengthy discussion
of
circumstances concerning your work
relations and disputes with the District, beginning with your voice injury in 1981. The
amended charge also discusses your disagreements with the District and Federation over
negotiated provisions
of
the CBA, which you assert violated your rights. Finally, the amended
charge describes your numerous requests for assistance from the Federation in filing
grievances against the District.	
In
some cases, the Federation agreed to assist you, in other
cases the Federation declined to represent you in your grievances. You challenged several
of
the Federation's refusals to represent you by filing unfair practice charges against the
Federation. The record shows that PERB issued several complaints against the Federation.
The charge also asserts that the Federation's "long-standing hostility" against you is
demonstrated by articles in the Federation newsletter which disparage you, threatening letters
received from the Federation's attorney and derogatory statements made about you by
Federation representatives.
You contend that that the Federation's decision not to represent you in reopening Grievance
5-
S94 you was arbitrary because the Federation initially stated it would not represent you
because you had not suffered an injury from the District's actions. You dispute the
Federation's view that you did not suffer an injury when the District reassigned you from
Geometry to Algebra. You contend that you were injured as a result
of
the substantial cost ofpurchasing equipment to develop a new voice accommodation program to teach Algebra; the
extensive time to develop new program; and the physical injury you suffered as a result
of
the
reassignment.
As you are aware, an exclusive representative does not violate the duty of fair representation if
the union makes an honest, reasonable determination that a grievance lacks merit. In
determining whether this standard has been met, PERB does not decide whether the union's

(
SA-CO-452-E
November
2,
2001
Page 4
decision was correct but whether it had a rational basis or was devoid
of
honest judgment.
(Sacramento City Teachers Association (Fanning. et al.) (1984) PERB Decision No. 428.)
Although the Federation initially concluded that you had suffered no injury as result
of
Ms. Cervantes' letter, the Federation did conduct further research and consulted with its legal
counsel. As stated in the Federation's April
6,
2001 letter, the Federation reached the
following conclusions concerning the merits
of
your grievance: (1) that Ms. Cervantes'
reference to the Spring 1994 evaluation was not a form
of
discipline; (2) the District's decision
to reassign you from Geometry to teach Algebra was also not a form
of
discipline; and
(3) although the Spring 1994 evaluation was referenced in Ms. Cervantes' letter, the
reassignment was based on the Fall 1997 and Spring 1998 evaluations.
While, as you suggest, the Federation's conclusions may be incorrect, these facts do not
demonstrate that the Federation's decision was without a rational basis or devoid
of
honest
judgment. Although reasonable individuals may disagree about what constitutes discipline, the
fact that the Federation considered the merits
of
your grievance and provided you with anexplanation why it believed the grievance did not have merit does not demonstrate a violation
of
the duty
of
fair representation.
You also contend in your amended charge that all the prior conduct by the Federation against
your interests, some
of
which was the subject
of
PERB complaints, demonstrates that the
Federation holds animus towards you. You suggest that this animus or hostility by the
Federation taints every decision the Federation makes regarding your requests for assistance.
PERB has held that in cases where a union may not be "kindly disposed" toward a grievant, the
union retains "a wide range
of
reasonableness within which to represent them." (United
Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453.)
The fact that the Federation may have breached its duty
of
fair representation towards you in
the past, is not sufficient to establish that the Federation's current conduct violates its duty to
represent you fairly. 	As discussed above, although you disagree with the Federation's
conclusions, the Federation has stated a rational basis for its decision not to pursue your
grievance. Accordingly this allegation does not state a prima facie case and is dismissed.
Your charge also alleges that the Federation failed or refused to file an unfair practice charge
with PERB on your behalf over the same conduct.
As you are aware, under EERA an exclusive representative is given the exclusive right to
represent employees before the employer in matters involving contract negotiations,
administration of the contract and grievance handling. Since the union has the exclusive
authority to deal with the employer over these matters, EERA imposes upon the exclusive
representative a duty to fairly represent all bargaining unit members in these areas.
However, an exclusive representative does not owe a duty of fair representation to a unit
member in a forum where the union has not been granted exclusive representation. (California

SA-CO-452-E
November 2, 2001
Page 5
State Employees Association (Parisi) (1989) PERB Decision No. 733-S.) Since PERB is a
forum outside the contract, the Federation does not owe members a duty
of
fair representation
in proceedings involving PERB. Thus, the Federation's refusal to file an unfair practice charge
with PERB on your behalf does not violate the duty
of
fair representation. Therefore, this
allegation is dismissed.
Your charge also alleges that the Federation discriminated against you by refusing to assist you
in obtaining the District's compliance with Grievance 5-S94. You contend that the Federation
"has a long history
of
treating [your] needs and rights within the CBA different from that
of
other instructors." You also assert that the Federation's animus and hostility toward you
establish the nexus between your protected activity and the Federation's refusal to assist you.
These allegations were raised in your original charge and are addressed in the attached letter.
Since the amended charge does not provide new allegations in support
of
this theory, the
discrimination allegation is dismissed for the reasons discussed in the attached letter.
Finally, your charge alleges that the Federation violated EERA 3543.6(a) by causing
or
attempting
to
cause the District to discriminate against you. As in the discussion above, you
similarly contend that the Federation's long history ofrefusing to represent you when it knew
the District was violating the contract demonstrates that the Federation, by its inaction, was
assisting the District in discriminating against you. The amended charge states that
'"intentional misconduct' or 'inaction without rational basis' can be cited
as
'affirmative-action'
when that inaction is intended to facilitate or cause an employer to violate EERA section
3543.5." You do not cite any case iaw in support
of
this theory.
As previously discussed in the attached letter, a charging party must demonstrate that a union
took affirmative action in its attempt to cause the employer to violate 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.)
You contend that the Federation's refusal to represent you caused the District to discriminate
against you because the District knew the Federation would not challenge its actions.
However, the case law does not support this view. A union's inaction in representing past
grievances does not demonstrate that it caused the employer to discriminate against the
employee in future actions. Thus, this aliegation does not state a prima facie case and must be
dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-452-E
November 2, 2001
Page 6
dismissal. (Regulation 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.
(Regulations 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 Regulation 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 ali parties to
the proceeding. (Regulation 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

SA-CO-452-E
November 2, 2001
Page 7
(
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 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~esl!4
Regional Attorney
Attachment
cc: Robert Perrone

ST ATE OF CALIFORNIA
( GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
"9;J_!!iL~fc., "i	
,? 	0 	Sa.:rarnenlo Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
~
!!
! ,, E' OF CAI-If
August 2, 2001
Annette Deglow
8424 Olivet Court
Sacramento, CA 95826
Re: 	Annette (Barudoni) Deglow v. Los Rios College Federation of Teachers, Local 2279
Unfair Practice Charge No. SA-CO-452-E
WARNING LETTER
Dear Ms. Deglow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 22, 2001. Your charge alleges that the Los Rios College
Federation of Teachers, Local 2279 violated the Educational Employment Relations Act
(EERA), 1 Govermnent Code section 3543.6(a) and (b), when the Federation refused to
represent you by filing a grievance on your behalf challenging your employer's breach of a
prior grievance settlement.
The charge makes the following factual allegations. You have been employed by the Los Rios
Community College District since 1962. You are currently an instructor in the Mathematics
Department at the Sacramento City College. 	For several years you have been active in a rival
employee organization. In addition, you have filed several unfair practice charges against the
Federation. The Federation is well aware of these activities.
In the Spring of 1994, you received a performance evaluation which included a "needs
improvement" rating in three of four categories. At your request, on May 26, 1994, the
Federation filed a grievance on your behalf challenging the evaluation.
In December 1994, you received a follow-up evaluation with a "meets standards" rating in all
categories.
The charge alleges that, "During the grievance process it was determined that the 'needs
improvement' ratings were the result of Department and Campus Administrative error and the
evaluation was superceded by a new evaluation which contained satisfactory ratings in all
seventeen categories." On December 19, 1994, the District provided a District Level response
to your Grievance 5-S94, which stated:
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-452-E
August 2, 2001
Page 2
The results of the follow-up classroom visit recommended by the
peer review committee indicates that Ms. Deglow's performance
is now overall meets standards. Since this overall meets
standards rating precludes the initial needs improvement rating
for the Spring, 1994, evaluation being used in any disciplinary
process, the District does not believe that there is any need to
destroy the original evaluation. 	[Emphasis in original.]
In a letter to Ms. Deglow dated January 3, 1995, the Federation declined to appeal the
grievance to the Board of Review. The Federation stated:
In addition, the District has agreed, in writing, not to use the
original evaluation in any disciplinary process.
Following that date, you received two more performance evaluations. The first evaluation
covered the period August 1997 through December 1997. This evaluation included a "needs
improvement" rating in 8 of 17 categories. This evaluation also recommended that you be
assigned to teach a Mathematics course lower than Geometry. The second evaluation covered
the period January 1998 through May 1998. This evaluation included a "needs improvement"
rating in 6 of 17 categories.
In or about August 1999, the District reassigned you from teaching Math 52 Elementary
Geometry to Algebra, despite your opposition to the reassignment.
In or about September and October 1999, you filed two disability discrimination complaints
with the Department of Fair Employment and Housing (DFEH). In December 1999, you filed
another complaint with the DFEH alleging that the reassignment from Geometry to Algebra
was in retaliation for filing the prior DFEH complaints.
On January 2, 2001, the DFEH provided you with a copy of a letter dated April 14, 2000,
which was written by Lily Cervantes, District Interim Director for Employee Relations, to the
DFEH in response to your December 1999 complaint. Ms. Cervantes reviewed the four
performance evaluations and indicated to the DFEH that your performance was the reason for
your teaching reassignment. Ms. Cervantes stated:
Here, Ms. Deglow was reassigned because recent evaluations
conducted by The Review Team did in fact disclose that she was
not performing at the level expected of a Geometry Instructor.
The Dean considered these evaluations in making class
assignments for faculty.
On January 16, 2001, in a letter to Federation Executive Director Robert Perrone, you
informed the Federation that you had recently discovered that the District had used the
Spring 1994 evaluation contrary to "the terms of the settlement for Grievance 5-S94." 	The
District's grievance response stated that the Spring 1994 evaluation would not be "used in any

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(
disciplinary process." You asserted that the evaluation was used by the District, in part, as the
basis for your reassignment from Geometry to Algebra, a use which you claimed breached the
grievance settlement. You requested that the Federation take the steps necessary to obtain the
District's compliance with the terms
of
Grievance 5-S94, which precluded the evaluation being
used in any disciplinary process.
On January 23, 2001, the Federation advised you that they saw no reason to revisit Grievance
5-S94.
In a letter dated January 29, 2001, you submitted a second request
to
the Federation asking
them to seek compliance with Grievance 5-S94. The Federation responded on February 1,
2001, advising you it was standing by its original analysis
of
your request.
You submitted a third request to the Federation on February 11, 2001. You also asked
if
the
grievance process was the appropriate means to obtain compliance
of
a grievance settlement.
The Federation responded on February 15, 2001, advising you that the grievance process was
the appropriate avenue for enforcing grievance settlements. The letter stated that Mr. Perrone
could not recall in his ten years with the Federation a grievance remedy that had not been fully
implemented or that had been violated.
On February 18, 2001, you again asked the Federation to reopen Grievance 5-S94.
You
provided a draft request to reopen Grievance 5-S94 asking the Federation to review the draft
and take the appropriate action on your request. You asked the Federation to respond
by
February 20, 2001.
When you did not receive a response from the Federation, on February 20, 2001, you filed with
the District a request to reopen Grievance 5-S94. You provided the Federation with a copy
of
your request to the District and asked the Federation to represent you in this matter.
On February 22, 2001, the Federation informed you that it would not represent you.
In a letter dated March 1, 2001, Jimmy Mraule, Director
of
Human Resources, informed you
that there was no process in the contract to reopen a grievance that was presented six years
ago. The letter further stated that your grievance request had not been filed within contractual
timelines.
On March 6, 2001, Mr. Perrone called you. The charge alleges that Mr. Perrone stated that a
violation of your rights had occurred. Mr. Perrone asked you not to take any action until he
could review the matter with the Federation's legal counsel.
In a letter dated March 29, 2001, you advised the Federation of a possible second violation of
the grievance settlement. You also expressed concern with grievance timelines since you had
not heard from the Federation.

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On April 6, 2001, the Federation informed you that it would not be taking any action in this
matter. In a subsequent letter dated April 16, 2001, the Federation advised you that it
was
standing by its analysis as reflected in its April 6, 2001 letter. The Federation also indicated it
would not be filing an unfair practice charge against the District concerning this matter.
The charge alleges that the Federation breached its duty
of
fair representation and
discriminated against you
when
it refused to represent you
by
seeking the District's compliance
with Grievance 5-S94. The charge also alleges that the Federation caused or attempted to
cause the District to violate EERA by
discriminating against you in violation
of
EERA
section
3543.6(a).
Based on the facts stated above, the charge fails to state a prima facie case.
You have alleged that the exclusive representative denied you the right to fair representation
guaranteed
by
EERA· section 3544.9 and thereby violated section 3543.6(b ). As you know, 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
ofEERA,
a charging party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. In United Teachers
of
Los Angeles
(Collins), 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. 	[Citations omitted.]
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.
[Emphasis added.]
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.]

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August 2, 2001
Page 5
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The charge alleges that the Federation breached its duty of fair representation when it refused
to file a grievance over the District's failure to comply with the settlement of Grievance 5-S94.
The charge states:
The Federation's leadership is aware that a breach of the
settlement has occurred. The Federation has a clear and well-
defined duty to demand compliance by the District regarding
Grievance 5-S94 and failure to do so equals "failing to represent
bargaining unit members fairly in their employment relationship
with the employer" which is a violation of the EERA. [p. 5.]
First of all, it is not apparent that the resolution of Grievance 5-S94 is a settlement agreement.
The "settlement" language cited in the charge derives from a District level response to the
grievance. It is not clear that the employer's grievance response is binding on the parties in the
same manner as a settlement agreement.
However, assuming the District's grievance response is a binding settlement, the charge
contends that since the Federation represented you in the original grievance, it has a "duty to
demand compliance by the District" and that the failure to do so demonstrates a breach of the
duty of fair representation. I am not aware of any case law which supports this theory.
Rather, this matter involves a union's duty of fair representation in grievance handling. 	As you
are aware, an exclusive representative is granted the discretion to determine whether to pursue
a grievance, as long as the decision is not arbitrary. (United Teachers of Los Angeles (Collins)
(1982) PERB Decision No. 258.) A charging party must allege facts which demonstrate that a
union's decision not to pursue a grievance was without a rational basis or was devoid of honest
judgment. (Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision
No. 332.)
The charge alleges that you requested that the Federation represent you by filing a grievance
challenging the District's failure to comply with Grievance 5-S94. On January 23, 2001, the
Federation advised you that they saw no reason to revisit Grievance 5-S94. In a letter dated
February 1, 2001, the Federation responded to your second request advising you that it was
standing by its original analysis of your request. In addition, on March 6, 2001, the Federation
informed you that the matter would be reviewed by the Federation's legal counsel. Finally, the
charge alleges that the Federation's April 16, 2001 letter states that it is standing by the
analysis it provided you in its April 6, 2001 letter. These facts tend to show that the Federation
conducted a review and analysis of your request. 	Such behavior does not demonstrate arbitrary
conduct which "was without a rational basis or devoid of honest judgment."
The charge also alleges that a union violates the duty of fair representation:
... when the exclusive bargaining representative knowingly
refuses to represent an employee in order to please the employer

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August 2, 2001
Page 6
(
at the expense of that employee. Such an action is appropriately
identified as "arbitrary behavior". 	[p. 8.]
Assuming you are alleging that the Federation refused to represent you in this matter to assist
the District, the charge does not provide any facts which demonstrate that the Federation
refused to represent you at the request of the District. Accordingly, the allegation that the
Federation breached its duty of fair representation fails to state a prima facie case and must be
dismissed.
The charge also alleges that the Federation discriminated against you in retaliation for your
protected activity.
In order to state a prima facie case of discrimination, the charging party must show that:
(1) the charging party engaged in protected activity; (2) the respondent knew of the activity;
(3) the respondent took action adverse to the charging party's interest; and (4) there was an
unlawful motivation for the respondent's action. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89;
State of California (Department of Developmental Services) (1983) PERB Decision No. 344-S;
California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S.)
In support of the nexus element, the charge alleges that the Federation "has a history of treating
[your] needs and rights within the CBA different from that of other instructors." The charge
alleges that the Federation refused to consider your request to compel compliance until it
feared that the District's conduct concerning your grievance might impact others. When the
Federation determined the District's actions would not affect the rights of other bargaining unit
members, it withdrew its support from your request. This allegation fails as the charge does
not provide any facts which describe how or in what manner the Federation considered the
impact on other unit members. Mere legal conclusions are insufficient to demonstrate a prima
facie case. (State of California (Department of Food and Agriculture) (1994) PERB Decision
No. 1071-S; United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944;
Charter Oak Unified School District (1991) PERB Decision No. 873, fn. 6.)
The charge also alleges that the Federation "has a long history of advocating interest based
communication and resolve of issues through the conflict resolution process." The charge
contends that the Federation's refusal to "comply with a settlement agreement is a clear
departure from established procedures and standards." First, the Federation has no obligation
to comply with this grievance settlement agreement. Second, as stated above, the Federation
has the discretion to determine whether to pursue a grievance. Thus, this allegation also fails
to demonstrate nexus.
The charge alleges that the actions of the Federation are inconsistent or contradictory because
the Federation agreed to represent you in processing Grievance 5-S94, but refused to represent
you when the grievance settlement was breached. Again, as stated above, absent facts
demonstrating arbitrary conduct, the Federation has the discretion to decide whether to pursue
a gnevance.

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August 2, 2001
Page 7
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The charge alleges that the Federation refused
to
investigate the breach
of
the settlement
agreement and its impact on your reassignment. However, the charge provides facts which
demonstrate that the Federation reviewed and provided you with its analysis
of
your request in
letters dated February 1 and April 6, 2001. There are no other facts provided which
demonstrate a failure to investigate by the Federation. This allegation also fails.
The charge alleges that, "The Federation agrees that there has been a breach
of
the settlement
terms for Grievance 5-S94." However, the Federation is refusing to represent you in seeking
enforcement
of
the settlement agreement and the contract precludes a unit member from
having any outside representation. The Federation can decide not to pursue a meritless
grievance unless evidence
of
arbitrary conduct is produced.
Finally, the charge alleges that the refusal to file a grievance demonstrates a pattern
of
discriminatory conduct by the Federation. Charging Party cites two prior unfair practice
charges in which complaints were issued concerning the Federation's failure to advance your
grievance.2 The prior charges allege that the Federation treated similar grievances in a
different manner. The facts in the present charge do not demonstrate similar conduct.
Accordingly, the charge does not demonstrate the required nexus to establish a prima facie
case
of
discrimination.
The charge also alleges that the Federation caused or attempted to cause the District to violate
EERA by discriminating against you in violation
of
EERA section 3543.6 (a). The charge
alleges that by the Federation's refusal to compel the District's compliance with the grievance
settlement, the Federation is encouraging the District
to
violate your rights.
To state a violation
of
EERA section 3543.6 (a), it must be clear how and in what manner the
Federation caused or attempted to cause the District to violate 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 alleges that the Federation's failure to represent you in pursuing compliance
of
the
grievance settlement caused the District to discriminate against you by using the Spring 1994
evaluation in a disciplinary process. The Board has held that a union must engage in
affirmative action in its attempt to cause an employer to violate EERA. 	(Ibid.) The charge
fails to allege facts which demonstrate that the Federation affirmatively acted to cause orattempt to cause the District to discriminate against you. Accordingly, this allegation fails to
state a prima facie case and must be dismissed.
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 that 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
2 Unfair Practice Charge Nos. SA-CO-424-E and SA-CO-426-E.

SA-CO-452-E
August 2, 2001
Page 8
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 August 20, 2001, I shall dismiss your charge.
If
you have any questions, please call me at (916) 327-8385.
Sincerely,
gd
RobinW.We~
Regional Attorney