Hartnell Community College District (PERB 0054E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATIONARY ENGINEERS LOCAL 39,
Charging 	P a r t y ,
v .
HARTNELL COMMUNITY COLLEGE DISTRICT,
Respondent.
Case No. SF-CE-98
PERB Decision No. 	54
June 5, 1978
STATIONARY ENGINEERS LOCAL 39,
Charging 	P a r t y ,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER NO. 470,
Respondent.
Case No. SF-CO-21
Appearances: 	Robert J. Bezemek, Attorney (Van Bourg, Allen, Weinberg and
Roger) for Stationary Engineers Local 39; Arnold B. Myers, Attorney
(Abramson, Church and Stave) for Hartnell Community College District;
California School Employees Association, Chapter No. 470 did not make an
appearance.
Before Gluck, Chairperson; Gonzales and Cossack Twohey, Members.
OPINION
Stationary Engineers Local 39 appeals the dismissals by the General
Counsel of the unfair practice charge it filed against Hartnell Community
College and the amended unfair practice charge it filed against California
School Employees Association, Chapter No. 470. 	The general counsel dismissed
each charge on the ground it did not state a prima facie case. 	The cases are
consolidated for decision because they are based on identical facts.

FACTS
The following facts alleged by Local 39 are assumed true for the
purpose of deciding in these appeals whether or not the unfair practice
charges were properly dismissed for failure to state a prima facie case.1/ 1
On April 5, 1976, California School Employees Association,
Chapter No. 470 (hereafter CSEA) filed a request for recognition with
Hartnell Community College District (hereafter District) seeking to represent
all the classified employees of the District, excluding management,
supervisory and confidential employees. 	Stationary Engineers Local 39
(hereafter Local 39) did not file a competing claim of representation with
the District as prescribed by the Educational Employment Relations Act
(hereafter EERA) section 3544.1 2/ and rule 30017 et seq.3/ The District filed
a petition pursuant to section 3544.5(a)4 with the Public Employment Relations
1/ San Juan Unified School District (3/10/77) EERB Decision No. 12; Mount Diablo
Unified School District (12/30/77) EERB Decision No. 44.
2/Government Code section 3544.1, which provides in pertinent part:
The public school employer shall grant a request for recognition
filed pursuant to Section 3544 unless:
(b) Another employee organization.. .submits a competing claim of
representation within 15 workdays of the posting of notice of
the written request....
All statutory references hereafter are to the Government Code.
At the time in question, rule 30017 et seq. were codified at California
Administrative Code, title 8, section 30017 et seq. 	These rules governed
the filing of a competing claim of representation, also termed an
"intervention." 	They have since been amended and are now codified at
California Administrative Code, title 8, section 33070 et seq.
4/ Government Code section 3544.5 provides in pertinent part:
A petition may be filed with the board, 	in accordance with
its rules and regulations, requesting it to investigate and
decide the question of whether employees have selected or wish
to select an exclusive representative or to determine the
appropriateness of a unit, by:
(a) A public school employer alleging that it doubts the
appropriateness of the claimed unit....
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Board5 on May 6, 	1976, 	stating that no competing claim of representation had
been filed, 	that the District doubted the appropriateness of the unit
requested by CSEA, and that the District desired PERB to conduct a
representation election subsequent to the resolution of the appropriate unit
question at a hearing. 	On July 8, 1976, CSEA filed a petition with PERB
requesting a unit hearing on the proper management, 	supervisory and
confidential exclusions from its requested wall-to-wall unit.
5At the time in question, the Public Employment Relations Board was named
the Educational Employment Relations Board. 	The Board was renamed effective
January 1, 1978 by Government Code section 3541, as amended (Chapter 1159,
Statutes of 1977). 	Hereafter it is referred to as PERB.
In late April 1977, a representative of Local 39 was contacted by
certain custodial, maintenance and craft employees of the District who desired
Local 39 to represent them in an operations unit. 	Local 39 commenced
organizing these employees. 	Between May 17 and 24, 1977, 34 of the 41
operations employees signed authorization cards for Local 39.
The District, CSEA and PERB were aware of Local 39's organizing efforts.
They were also aware that Local 39 intended to intervene at the formal PERB
unit determination hearing by means of the one-card rule" for the purpose of
6Rule 33340, codified at California Administrative Code, title 8, section
section 33340, provides:
Application to Join Hearing As A Party. 	The Board may allow
an employee organization which did not file a timely request
for recognition or intervention to join the hearing as a
party provided:
(a) The employee organization files a written application prior to
the commencement of the hearing stating facts showing that it has
an interest in the unit described in the request for recognition
or an intervention; and
(b) The application is accompanied by proof of the support of at
least one employee in the unit described by the request or
intervention; and
(c) The Board determines that the employee organization has a
substantial interest in the case and will not unduly impede the
proceeding.
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arguing that an operations unit was appropriate and should be carved out
from the wall-to-wall unit requested by CSEA. 	On May 12, 1977, the District,
CSEA and PERB participated in an informal conference, from which Local 39
was excluded, wherein they explored the possibility of the District extending
voluntary recognition to CSEA. 	On May 24, 1977, the District granted voluntary
recognition to CSEA in a wall-to-wall unit substantially the same as that
originally petitioned for by CSEA. 	This voluntary recognition precluded the
holding of a formal hearing and Local 39's participation therein via the one-
card rule.
DISCUSSION
Local 39 first argues that the recognition agreement between the District
and CSEA was unlawful because it occurred at a time when a question of
representation existed under the Educational Employment Relations Act7
concerning the classified employees of the District. 	Local 39 cites Labor
8Management Relations Act, as amended, (hereafter LMRA) precedent for the
proposition that a question concerning representation arises when two rival
employee organizations file conflicting petitions with the National Labor
Relations Board seeking representation in an appropriate unit. 	Shea Chemical
Corporation (1958) 121 NLRB 1027 [42 LRRM 1486]. 	Local 39 also cites
section 3544.7(a) which provides in relevant part:
Upon receipt of a petition filed pursuant to Section
3544.3 or 3544.5, the board shall conduct such inquiries
and investigations or hold such hearings as it shall deem
necessary in order to decide the questions raised by the
petition....
In this case, the District and CSEA filed petitions pursuant to section 3544.5
on May 6, 1976 and July 8, 1976, respectively. 	It is argued that PERB thereby
Section 3540 et seq., hereafter referred to as the EERA.
'29 U.S.C. section 151 et seq. 	The Labor Management Relations Act amended
the National Labor Relations Act.
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,
gained jurisdiction of the unit dispute, and upon gaining knowledge of
Local 39's interest in the unit, PERB could not relinquish its duty to
determine the appropriate unit at a formal hearing by accepting a voluntary
recognition agreement from the District and CSEA. 	Therefore, the voluntary
recognition agreement was unlawful.
The core of this argument is the assertion that an employee organization
can raise a question of representation if it simply obtains the interest of
a majority of employees in an alleged appropriate unit overlapping that
originally petitioned for, and brings such interest to the knowledge of the
district, original petitioning employee organization and PERB. 	Therefore
Shea Chemical Corporation is not on point since in that case the rival
organization filed a petition. 	In the present case, Local 39 never filed
any petition or proof of support of any kind with the District, much less
the competing claim of representation required by section 3544.1 and rule 30017 et seq.9
While PERB gained jurisdiction of the unit dispute upon the filing of
the District's May 6, 1976 petition, it has been and is the policy of PERB
to encourage the voluntary resolution of representation disputes by the
parties in an effort, among other purposes, to speed the resolution of
disputes and avoid time-consuming and costly hearings.10 Therefore, Local 39's
argument that the PERB cannot accept a voluntary recognition agreement
following an employer's section 3544.5(a) petition is not persuasive.
9See footnote 3, supra.
Rule 33000, codified at California Administrative Code, title 8, section
33000 provides:
Voluntary Resolution of Disputes. 	It is the policy of the Board
to encourage the persons covered by the Act to resolve questions
of representation by agreement among themselves, provided such
agreement is not inconsistent with the purposes and policies of
the Act and the Board.
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The general counsel dismissed the charges on the ground that under the
EERA and the Board's rules, a question of representation can be raised only
during the 15 workday period provided by section 3544.1 or at a formal unit
determination hearing pursuant to the one-card rule. 	The Board agrees with
this analysis. 	The language of the EERA and the Board's rules is clear in
providing that a competing claim of representation must be filed within
15 workdays following the posting of the original request for recognition.
There are no provisions allowing a competing claim of representation to be
filed after the specified 15 workdays. 	While the present case did not proceed
directly to a hearing because of delay caused by the EERA being newly
implemented, 	the filing of a request for recognition will normally prompt a
timely hearing and election if they are necessary. 	In this normal context
the 15 workday intervention period is reasonable. 	If a hearing is held, the
one-card rule allows an employee organization to participate in the hearing
and thereby raise a question of representation only if it shows a substantial
interest in the case at the time of the hearing so it is likely the employee
organization will participate on the ballot at a subsequent election.
While the Board rejects Local 39's first argument, it does not agree
that the present unfair practice charges should be dismissed. Local 39 raises
a significant question in its second argument, that the District and CSEA
may have been motivated to enter the voluntary recognition agreement by an
intent to preclude Local 39 from participating in a formal hearing and
election, so that but for Local 39's activity in the district the voluntary
recognition would never have occurred. 	It is alleged that on April 5, 	1976,
CSEA filed a request for recognition in a wall-to-wall unit. 	On May 6, 	1976,
the District informed PERB that it doubted the appropriateness of the
requested unit. 	Then, approximately one year later, after Local 39 became
active in the District and indicated its intent to intervene in the formal
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..............................
unit determination hearing to be conducted by PERB, 	the District extended
voluntary recognition to CSEA in essentially the same wall-to-wall unit
originally requested and previously found unsatisfactory by the District.
On these facts, Local 39 claims the District gave and CSEA accepted unlawful
assistance and support, to the detriment of Local 39. 	Also, based on these
facts, Local 39 claims the employees who are members of or who have engaged
in activities on behalf of Local 39 have been discriminated against by the
District and CSEA.
Based upon the foregoing facts and argument, the Board concludes that
an unfair practice hearing may reveal violations of section 3543.5(a), 	(b)
and (d) and section 3543.6(a) and (b) ll, 	and therefore overrules the
dismissals and remands these unfair practice charges to the General Counsel
for hearing.
11 Section 3543.5 provides in pertinent part:
It shall be unlawful for a public school employer to:
(a) 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.
(b) Deny to employee organizations rights guaranteed to them
by this chapter.
(d) Dominate or interfere with the formation or administration
of any employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another....
and section 3543.6 provides in pertinent part:
It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause a public school employer to
violate Section 3543.5.
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees,
or otherwise to interfere with, restrain, or coerce employees
because of their exercise of rights guaranteed by this chapter.
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ORDER
The general counsel's dismissal of the unfair practice charge filed
by Stationary Engineers Local 39 against Hartnell Community College District
is reversed and the charge is remanded to the general counsel for hearing.
The general counsel's dismissal of the amended unfair practice charge
filed by Stationary Engine~rs Local 39 against California School Employees
Association, 	Chapter No. 	470 is reversed and the amended charge is remanded
to the general counsel for hearing.
-- 	I 	, 	• 	-~: 	~d J. <&zal~ Ment>d 	~ Gluck, 	Chairperson
Jerilou Cossack Twohey, 	Member, 	concurring in part and dissenting in part :
I agree with my colleagues that these cases 	should not have been
dismissed. 	I 	therefore join them in remanding the unfair practice charges
to the General Counsel for a hearing. 	I completely disagree with the
majority's conclusion that the only time a question of representation can
be raised under the EERA is during the 15 workday posting period provided
by section 3544.1 or at a formal unit hearing pursuant to the 	"one card"
rule .
The EERA itself provides for two ways 	in which a question of repre-
sentation may be raised, 	one of which is during the 15 workday posting
period of section 3544.1 and the other of which is 	if the Board determines
subsequent to the filing of a petition under sections 3544.3 or 3544.5
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through "inquiries, investigations, or hearing" that a question of
representation exists. 	Thus, section 3544.7(a) reads, in pertinent part,
Upon receipt of a petition filed pursuant to
Section 3544.3 or 3544.5, the board shall
conduct such inquiries and investigations or
hold such hearings as it shall deem necessary
in order to decide the questions raised by
the petition. 	The determination of that board
may be based upon the evidence adduced in the
inquiries, investigations, or hearing; pro-
vided that, if the board finds on the basis
of the evidence that a question of representa-
tion exists, or a question of representation
is deemed to exist pursuant to subdivision (a)
or (b) of Section 3544.1, it shall order that
an election shall be conducted by secret
ballot and it shall certify the results of the
election on the basis of which ballot choice
received a majority of the valid votes cast....
(Emphasis added.)
The majority does not deny that a question of representation may be
raised outside the 15 workday posting period. 	Intervention at a hearing
pursuant to the "one card" rule can occur only after a case has been set
for hearing, which in turn occurs after an employee organization has
requested recognition and either the employer has declined to recognize it
or another employee organization has filed a competing claim. 	This is the
situation when a question of representation would be "deemed to exist
pursuant to subdivision (a) or (b) of Section 3544.1...." 	(Emphasis added.)
The majority completely ignores the fact that the statute itself provides
for another way in which a question of representation may arise—if the
Board determines through "inquiries, investigations or hearing" that one
exists.
The fact that the Board's rules and regulations do not contain a
specific procedure for implementing this portion of section 3544.7(a) in
no way vitiates its mandate. 	The law clearly states that once a petition
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is filed the Board "shall conduct such inquiries and investigations" necessary
to resolve the questions raised by the petition. 	The mere fact that the
Board does not have a rule specifying how this is to be accomplished in no
way removes its obligation to fulfill the statutory requirements. 	It is
well understood that rules and regulations must be consistent with the
purposes of the statute.1
A question of representation is generally understood to mean that there
is a real dispute as to whether employees wish to be represented, or by
whom they wish to be represented, or in what unit it is appropriate for
them to be represented. 	It arises when an employee organization requests
recognition and the employer declines to recognize, or when there are two
or more employee organizations seeking to represent the same employees2.
The principle established by Shea Chemical Corporation3 that upon
presentation of a rival or conflicting claim of representation which raises
a real question of representation an employer may not negotiate with another
organization until the question of representation has been settled by the
Board is applicable in this case. 	The majority's rejection of this principle
because in the instant case Operating Engineers did not file a petition is
1See Clean Air Constituency v. California State Air Resources Board
(1974) 11 Cal.3d 801 in which the California Supreme Court stated,
"...administrative agencies exceed the scope of their authority when they
promulgate regulations which contravene the purposes and the effective
implementation of the governing legislation." 	at page 813. 	See also
Cooper v. Swoap (1974) 11 Cal.3d 856.
2See Thirteenth Annual Report of the National Labor Relations Board
(1948) pages 26-29.
3(1958) 121 NLRB 1027, 42 LRRM 1486.
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unfounded. 	In Deluxe Metal Furniture Company,4 decided the same year as
Shea Chemical, pro forma reliance on the pendency of a petition in a rival-
organization situation was firmly rejected. 	The test as to whether or not
a question of representation exists does not hinge solely on the mechanical
filing of a petition. 5 Rather, 	in the context of competing employee organiza-
tions, the test is whether there is a real or genuine dispute as to which
organization employees desire to represent them. 	Where such a real dispute
exists, an employer may not arrogate onto himself the authority to determine
which employee organization in fact is the choice of a majority of his
employees.6 In fact, 	it is the Board's obligation to resolve questions of
representation. 	Section 3544.7(a) states that the Board "...shall order
that an election shall be conducted by secret ballot...." 	(Emphasis added.)
once a question of representation has been determined to exist.
The purpose of the EERA, is clearly stated: 	to permit employees, if
a majority of them in an appropriate unit so desire, 	to select one organiza-
tion to represent them for the purpose of negotiating.
In the instant case a petition had been filed by the District pursuant
to section 3544.5 on May 6, 1976 which, among other things, doubted the
appropriateness of the unit requested by CSEA and desired PERB to conduct
a representation election. 	CSEA also filed a petition pursuant to section
3544.5 on July 8, 1976 requesting PERB to conduct a representation hearing
4 ( 1 9 5 8 ) 	121 NLRB 995, 	42 LRRM 1470.
5See also Higgins Industries, Inc. (1964) 150 NLRB 106, 58 LRRM 1059;
Air Master Corporation (1963) 14? NLRB 181, 53 LRRM 1004.
6r-uc1west Piping and Supply Co. (1945) 63 NLRB 1060, 17 LRRM 40.
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on the appropriate unit. 	Both of these petitions languished unattended
until May 1977 because of the delay caused by simultaneous representation
activity in many districts following the enactment of the new law.
While these petitions were still pending and almost a year after
the first one was filed, another employee organization, Operating Engineers,
notified the Board's regional office that 35 out of 41 employees in a unit
similar to ones the Board found appropriate had signed authorization cards
seeking to have it, rather than CSEA, represent them. 	At the time Operating
Engineers notified the Board of their substantial interest and support among
employees in an apparently appropriate unit CSEA had not been granted volun-
tary recognition. 	Thus, at a time when a question of representation was
clearly before the Board, Operating Engineers themselves raised an additional
question of representation.
The Board's policy of encouraging voluntary recognition certainly was
never intended to take precedence over the purposes of the EERA itself.
In fact, the proviso to rule 33000 in which this policy is enunciated
clearly so states.7 The Board had and has an obligation to determine the
questions raised once having taken jurisdiction of the original dispute
between the District and CSEA. 	This obligation is imposed by the statute.
The silence of the Board's rules in no way diminishes it.
7Rule 33000, codified at Cal. Admin. Code, tit. 8, sec. 33000 proves:
Voluntary Resolution of Disputes. 	It is the
policy of the Board to encourage the persons
covered by the Act to resolve questions of
representation by agreement among themselves,
provided such agreement is not inconsistent
with the purposes and policies of the Act
and the Board. 	(Emphasis added.)
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Operating Engineers raised a real question of representation by notify-
ing the employer8, the Board and CSEA, that it possessed a substantial
interest among employees in an apparently appropriate unit in conflict with
the interest expressed by CSEA.. 	The pleadings in this case do not disclose
whether Operating Engineers merely asserted a naked claim that it represented
a substantial number of employees or whether it concretely demonstrated the
extent of its interest to the employer. 	It is clear, however, that Operating
Engineers did concretely demonstrate to the Board that its support among
employees was substantial. 	In these circumstances the Board's obligation
to foster harmonious relations between the employer and its employees cannot
be suspended because the Board's own rules are silent.
Permitting the employer to impose a negotiating agent on employees is
entirely contrary to the statute's specific grant to employees of the right
to select an organization of their own choosing. 	An indispensable ingredient
of successful collective negotiations is the confidence of individual employees
that their exclusive representative will endeavor to wholeheartedly advocate
their interests to the employer. 	In this case, 35 out of 41 employees in an
apparently appropriate unit concretely demonstrated that they sought to have
another organization than the one imposed upon them by their employer negotiate
on their behalf. 	The majority, by its decision that a question of representa-
tion was not raised by the circumstances of this case is not only contrary
The Board assumes for purposes of ruling on the propriety of a dis-
missal of an unfair practice charge that the facts alleged in the charge
are true. 	San Juan unified School District (3/10/77) EERB Decision No. 12,
1 PERC 77.
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to the specific language of section 3544 .? (a) but is also contrary to the
very purpose of the EERA itself . 	Accordingly, 	I dissent .
'l.l B	}'
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Jerilou Cossack Twohey, 	Member