Service Employees International Union, Local 99 (Pottorff) (PERB 0203E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MICHAEL EDWARD POI'TORFF,
Charging 	Party,
v.
SERVICE EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	99,
Respondent.
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_____________________ )
Case No. 	LA-C0-85
PERB 	Decision No. 203
March 30, 	1982
Appearances: 	Michael Edward 	Pottorff, 	in 	pro 	per; 	Jeff 	Paule,
Attorney 	(Geffner 	& Satzman) 	for 	Service Employees
International 	Union, 	Local 	99.
Before 	Gluck, 	Chairperson; 	Moore 	and 	Tovar, 	Members.
DECISION
The 	instant 	case 	is 	brought 	before 	the 	Public Employment
Relations Board 	(hereafter 	PERB 	or 	Board) 	by Michael Edward
Pottorff 	(hereafter 	charging 	party) 	who 	contends 	that 	the
Service Employees 	International 	Union, 	Local 	99 	(hereafter 	SEIU
or 	Local 	99), 	improperly withdrew 	objections 	to 	a
decertification 	election 	and 	thereby 	violated 	its 	duty 	of 	fair
representation. 	Except 	as 	modified 	below, 	the 	Board 	affirms
the 	hearing 	officer's 	decision 	and 	orders 	that 	the 	unfair
practice 	charge 	be 	dismissed.
PROCEDURAL 	HISTORY AND 	FACTS
The 	hearing 	officer's 	statement 	of 	the 	procedural 	history
and 	findings 	of 	fact 	in 	this 	case, 	attached 	hereto, 	are 	free
from 	prejudicial 	error 	and 	are 	adopted 	by 	the 	Board 	itself.
DISCUSSION
Charging 	party 	asserts 	that 	Local 	99 	breached 	its 	duty 	of
fair 	representation 	as 	set 	forth 	in 	section 	3544.9 	of 	the
Educational Employment 	Relations 	Act 	(hereafter 	EERA 	or

Act).l	
He
	also
	alleged
	that
	Local
	99
	violated
	subsection
3543.6(b)
	of
	the
	Act2	
by
	withdrawing
	election
	objections
without
	consulting
	with-Local
	99's
	executive
	board
	or
	officers.
In 	addressing 	the 	charging
	party's
	allegation 	that
	Local
	99
breached
	its
	duty 	of
	fair
	representation,
	the
	hearing
	officer
reasoned
	that
	the
	filing
	of
	a
	valid
	decertification 	petition
	by
a
	rival
	union
	created
	a
	question
	concerning
	representation.
	He
concluded,
	therefore, 	that 	at
	the 	time
	the
	objections 	to 	the
decertification
	election
	were
	withdrawn, 	Local
	99 	was
	no
	longerthe 	exclusive
	representative
	and 	owed 	no
	duty
	of
	fair
representation.
	We
	disagree
	with
	this
	analysis
	and
	find
	that,
in
	this
	case,
	SEIU
	lost
	its
	status
	as
	exclusive
	representative
only
	when PERB
	certified
	the
	results
	of
	the
	decertificationelection 	after
	the
	objections
	were
	withdrawn.
2
Assuming
	that
	the 	hearing
	officer 	correctly
	concluded
	that
the
	validly-filed 	decertification 	petition
	created
	a
	question
lThe
	EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et
seq.
	Unless
	otherwise
	indicated,
	all
	citations
	are 	to 	the
Government 	Code.
	Section
	3544.9
	states:
The 	employee
	organization
	recognized
	or
certified
	as
	the
	exclusive
	representativefor 	the 	purpose 	of 	meeting
	and
	negotiating
shall 	fairly
	represent
	each
	and
	every
employee
	in 	the 	appropriate
	unit.
2subsection
	3543.6(b)
	states:
It
	shall
	be
	unlawful 	for
	an 	employee
organization
(b) 	Impose
	or 	threaten 	to
	impose
	reprisals
on 	employees,
	to 	discriminate
	or
	threaten
	to
discriminate 	nst 	es,
	or
	other 	se
to 	interfere
	,
	res 	ain,
	or 	coerceemployees 	because
	ir
	exercise
	of
ri
	s
	guaranteed 	by	
this
	chapter.

concerning
	Local
	99 1 s
	representation
	status,3	
the 	existence
of 	such
	a
	question
	does
	not
	necessarily
	vitiate
	a
	union's 	duty
of
	fair
	representation.
	The
	question
	concerning
	representation
status 	relates
	to
	the
	uncertainty
	as
	to
	whether
	an 	employee
organization
	continues
	to
	enjoy
	the
	majority
	support
	of 	the
unit
	employees.
	•rhe
	question
	cancer
ning
	representation
	is
responsive
	to
	the 	employer's
	dilemma
	vis-a-vis
	the
	employee
organization
	and
	its
	obligation 	to 	negotiate.
	See
Midwest
Piping
	and
	Supply Co.,
	Inc.
	(1945) 	63
	NLRB
	1060 	[17
	LRRM
	40].
The
	duty 	of
	fair
	representation,
	on
	the 	other
	hand,
	refers 	to
the
	organization's 	responsibility 	to
	the
	unit
	membership
	which
is
	not 	terminated
	by
	the 	appearance 	of
	a
	question 	concerning
representation.
As
	the
	NLRB
	said
	in
	Shea Chemical
	Corp.
	(1958) 	121
	NLRB
1027 	[42
	LRRM
	1486],:
We
	now
	hold
	that
	upon
	presentation
	of
	a
rival
	or
	conflicting
	claim
	which
	raises
	a
real
	question
	concerning
	representation,
	anemployer
	may
	not
	go
	so
	far
	as
	to
	bargain
collectively
	with 	the
	incumbent
	(or 	any
other)
	union
	unless
	and
	until
	a
	questionconcerning
	representation
	has 	been
	settled
by
	the
	Board.
	This
	is
	not
	to
	say
	that
	the
employer 	must
	give
	an 	undue
	advantage
	to
	the
rival
	union
	by
	refusing 	to
	permit 	the
incumbent 	union
	to
	continue 	administeringthe
	contract
	or 	processing 	grievancesthrough
	its
	stewards.
Shea 	Chemical
	distinguishes
	between
	preservation
	of
	current
representation 	rights
	under 	an
	existing
	agreement
	and
negotiations
	over
	new
	terms
	and
	conditions
	of
	employment.
	The
Midwest
	Piping 	doctrine
	imposes
	neutrality
	on
	the
	employer
3The
	National
	Labor
	Relations
	Board
	(hereafter
	NLRB)
	has
ruled 	that
	a
	decertification 	petition 	creates
	a
	questionconcerning
	representation.
	Teleautograph 	Corp.
	(1972) 	199
	NLRB
892 	[81
	LRRM
	1337]; 	Essex
	International, 	Inc.
	(1976) 	22
	NLRB
121 	[91
	LRRM
	1413]. 	Federal 	appellate 	courts,
	however, 	have
reached
	conflicting 	decisions
	on
	the 	issue.
	Compare Royal
Typewritter
	Company
	v.
	NLRB
	(8th
	Cir.
	1974) 	494
	F.2d
	189	
[185
LRRM
	2657], 	permitting 	reliance 	by	
employer 	on
	existence 	of
decertification 	petition	
alone 	as
	creating
	a
	questionconcerning 	representation	
and	
allowing 	refusal 	to 	bargain, 	with
NLRB
	v. 	Swift
	& Co. 	(3d
	Cir.
	1971) 	294 	F.2d 	285 	[48
	LRRM
	2699];
Allied 	Industrial
Workers 	v.
	NLRB
	(D.C.
	Cir.
	1973) 	476 	F.2d 	868
[g2
	LRRM
	2225],
	disapproving 	reliance
	on
	petition 	alone.
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confronted 	with 	two 	or 	more 	rival 	unions 	and 	a 	valid 	question
con~erning 	representation. 	But 	as 	indicated 	b¥ 	Shea, 	supra,
until 	the 	results 	of 	the 	decertification 	election 	were
certified, 	there 	remained 	one 	incumbent 	which 	retained 	its
responsibility 	to 	its 	membership.
Since 	Local 	99's 	duty of 	fair 	representation 	was 	not
extinguished 	when 	the 	decertification 	petition 	was 	filed, 	we
have 	examined 	its 	decision 	to 	withdraw 	the 	election 	objections
consistent 	with 	the 	obligations 	imposed 	by 	the 	duty 	of 	fair
representation.
In Thomas A. 	Romero 	v. 	Rocklin Teachers 	Professional
Association 	(3/26/80) 	PERB 	Decision No. 	124, 	the 	Board
aelineated 	the 	unions 	obligations:
A union must 	conform 	its 	behavior 	to 	each 	of
these 	standards. 	First, 	it 	must 	treat 	all
factions 	and 	segments 	of 	its 	membership
without 	hostility or 	discrimination. 	Next,
the 	broad 	discretion 	of 	the 	union 	in
asserting 	the 	rights 	of 	its 	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.
Charging 	party 	has 	failed 	to 	prove 	that 	the 	withdrawal 	of
election 	objections 	was 	arbitrary, 	discriminatory or 	in 	bad
faith. 	While 	he 	asserts 	that 	the 	objections 	were 	withdrawn 	by
a 	union 	officer 	disgruntled 	by Local 	99's 	endorsement 	of 	his
opponent, 	no 	proof 	in 	support 	of 	this 	allegation 	appears 	on 	the
record. 	Indeed, 	charging 	party 	failed 	to 	call 	the 	officer 	as 	a
witness. 	The 	charging 	party, 	relying 	on 	conjecture 	and
speculative 	testimony 	of 	witnesses 	called, 	has 	failed 	to 	show
that 	withdrawal 	of 	the 	election 	objections 	abrogated 	any
requirements 	of 	the 	duty.
In 	this 	case, 	SEIU's 	withdrawal 	of 	the 	election 	objections
is 	in 	accordance 	with 	decisions 	under 	the National 	Labor
Relations 	Act 	which 	permit 	an 	exclusive 	representative 	to
unequivocally 	and 	in 	good 	faith 	disclaim 	further 	interest 	in
representing 	the 	unit. 	Corrugated Asbestos 	Contractors, 	Inc.
v. 	NLRB 	(5th Cir. 	1972) 	458 	F.2d 	683 	[80 	LRRM 	2023). 	Such 	a
disclaimer 	will 	not 	be 	given 	effect 	if 	it 	is 	inconsistent 	with
the 	union's 	conduct 	(IBEW 	and 	Local 	59 	(Textile 	Inc.) 	(1958)
119 	NLRB 	1792 	(41 	LRRM 	1392], 	enf., 	(5th 	Cir. 	1959) 	266 	F.2d
329 	[43 	LRRM 	2875]) 	or 	if 	it 	is 	made 	for 	an 	improper 	purpose,
such 	as 	the 	evasion 	of 	the 	terms 	and 	obligations 	of 	a
4

collective 	bargaining 	agreement. 	East Manufacturing Corp.
(1979) 	242 	NLRB 	No. 	5 	[101 	LRRM 	1079]. 	See 	also Joint 	Council
of 	Teamsters No. 	42 	(1979) 	235 	NLRB 	1168 	[98 	LRRM 	1356], 	arf'd.
1n Dycus 	v. 	NLRB 	(9th 	Cir. 	1980) 	615 	F.2d 	820 	[103 	LRRM 	2686],
in 	which 	the NLRB 	said 	about 	withdrawing 	representation 	status:
Withdrawal 	is 	not 	a 	breach 	of 	the 	duty of
fair 	representation. 	For 	that 	duty 	is 	the
corollary 	to 	an 	exclusive 	representative's
power 	and 	authority. 	The 	representative
having 	disclaimed 	that 	power 	and 	authority,
the 	predicate 	for 	the 	duty 	fails.
As 	with 	a 	disclaimer, 	withdrawal 	of 	election 	objections 	is 	not
a 	per 	se 	violation 	of 	the 	duty 	of 	fair 	representation 	and, 	as
in 	this 	case, 	it 	is 	permissible 	for 	an 	organization 	to
relinquish 	its 	representation 	status 	if 	the 	evidence 	fails 	to
establish 	that 	it 	acted 	arbitrarily, 	capriciously or 	in 	bad
faith.
Finally, 	the 	hearing 	officer 	considered 	the 	alleged
violation 	of 	subsection 	3543.6(b) 	relying 	on Kimmett 	v. 	SEIU,
Local 	99 	(10/19/79) 	PERB 	Decision No. 	106. 	In 	that 	case, 	the
Board 	stated 	that 	the 	conduct 	proscribed 	by 	subsection
3543.6(b) 	of 	the Act 	encompasses 	more 	than 	a 	breach 	of 	the 	duty
of 	fair 	representation.
However, 	noting 	that 	EERA 	does 	not 	describe 	the 	internal
workings 	or 	structure 	of 	employee 	organizations 	nor 	does 	it
define 	the 	internal 	rights 	of 	organization 	members, 	the 	Board
concluded 	that:
Unless 	the 	internal 	activities 	of 	an
employee 	organization 	have 	such 	a
substantial 	impact 	on 	employees'
relationship 	with 	their 	employer 	as 	to 	give
rise 	to 	a 	duty 	of 	fair 	representation, 	we
find 	that 	public 	school 	employees 	do 	not
have 	any 	protected 	rights 	under 	EERA 	in 	the
organization 	of 	their 	exclusive
representative. 	In 	brief, 	sections 	3540 	and
3543 	do 	not 	give 	employees 	more 	rights 	in
the 	internal 	activities 	of 	an 	employee
organization 	than 	they 	have 	under
section 3544.9. 	[Emphasis 	added.]
Thus, 	although 	the 	Board 	in Kimmett 	stated 	that 	the 	conduct
proscribed 	by 	subsection 	3543.6(b) 	encompasses 	more 	than 	a
breach 	of 	the 	duty 	of 	fair 	representation, 	it 	in 	fact 	held 	that
in 	order 	for 	internal 	union 	activities 	to 	violate 	subsection
3543.6(b), 	they must 	impact 	in 	such 	a 	way 	as 	"to 	give 	rise 	to 	a
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duty 	of 	fair 	representation~" 	Thus, 	relying 	on Kimmett, 	a
union's 	internal 	activities, 	when 	examined 	under 	either
statutory 	provision, 	are 	subject 	to 	the 	same 	analysis. 	In 	the
instant 	case, 	having 	determined 	that 	the 	withdrawal 	of 	election
objections 	did 	not 	violate 	the 	duty 	of 	fair 	representation, 	no
violation 	of 	subsection 	3543.6(b) 	is 	found.
ORDER
Upon 	the 	entire 	record 	and 	the 	foregoing 	decision, 	the
Public Employment 	Relations 	Board ORDERS 	that 	the 	unfair
practice 	charge 	filed 	by Michael Edward 	Potorff 	against Service
Employees 	International 	Union, 	Local 	99, 	is 	hereby DISMISSED.
By: 	Barbara 	D. 	Moore, 	Member
,---.-..
Hi r Y G'i μck , ChiiN;,_pe r son
I.
rreri'e 	'I'ova·r I 	He:mber
6

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF 	CALIFORNIA
MICHAEL 	EDWARD 	POTTORFF,
Charging 	Party,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	99,
Respondent.
)
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)
)
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)
)
)
)
______________ )
Unfair 	Practice
Case 	No. 	LA-C0-85-
78/79
PROPOSED 	DECISION
(12/12/79)
Appearances: 	Michael 	Edward 	Pottorff, 	in 	pro 	per; 	Jeff 	Paule,
Attorney 	(Geffner 	& 	Satzman) 	for 	Service 	Employees 	International
Union, 	Local 	99.
Before 	Kenneth 	A. 	Perea, 	Hearing 	Officer.
This 	matter 	raises 	the 	issue 	of 	whether 	Respondent's
failure 	to 	pursue 	objections 	to 	a 	representation 	election
between 	itself 	and 	the 	California 	School 	Employees 	Association,
Chapter 	157 	constitutes 	a 	violation 	of 	the 	duty 	of 	fair
representation 	pursuant 	to 	sections 	3544.9 	and 	3543.6(b) . 1
PROCEDURAL 	HISTORY
The 	events 	preceding 	the 	administrative 	hearing 	in 	the
above-captioned matter 	held 	in 	Los 	Angeles 	on October 	18, 	1979
before 	the 	above-named 	hearing 	officer 	of 	the 	Public 	Employment
Relations 	Board 	(hereafter 	PERB) 	are 	summarized 	as 	follows:
lAll 	statutory 	references 	are 	to 	the 	California
Government 	Code 	unless 	otherwise 	specified.

(1) 	On May 	18, 	1979 	Michael 	E. 	Pottorff 	(hereafter
Charging 	Party) 	filed 	an 	unfair 	practice 	charge 	with 	the 	PERB
alleging 	violations 	of 	sections 	3543.6(b) 	and 	3544.9 	naming
Willie 	J. 	Griffin, 	secretary-treasurer, 	Service 	Employees
International 	Union, 	Local 	99 	as 	respondent;
(2) 	On 	June 	15, 	1979 	Willie 	J. 	Griffin 	filed 	an 	Answer 	to
Unfair 	Practice 	Charge 	and Motion 	to 	Dismiss 	Unfair 	Practice
Charge;
(3) 	On 	July 	10, 	1979 	Charging 	Party 	filed 	an 	amended
unfair 	practice 	charge 	alleging 	violations 	of 	sections
3543.6(b) 	and 	3544.9 	and 	naming 	Service 	Employees 	International
Union, 	Local 	99 	(hereafter 	SEIU} 	as 	respondent;
(4) 	The 	informal 	conference 	held 	in 	the 	above-captioned
matter 	on July 	2, 	1979 	failed 	to 	resolve 	the 	matter 	which 	was
thereupon 	set 	for 	formal 	hearing;
(5) 	On August 	6, 	1979 	SEIU 	filed 	a 	Motion 	for
Particularization of 	the 	Unfair 	Practice 	Charge;
(6) 	On 	September 	11, 	1979 	Charging 	Party 	filed 	a
particularization 	of 	the 	unfair 	practice 	charge 	in 	the
above-captioned matter;
After 	the 	conclusion 	of 	the 	formal 	hearing 	on October 	18,
1979, 	Charging 	Party 	and 	SEIU 	fi 	post-hearing 	brie 	on
r 	23 	Oc 	r 	30, 	1979, 	r 	tive
2

FINDINGS 	OF 	FACT
During 	the 	administrative 	hearing 	in 	the 	above-captioned
matter, 	official 	notice 	was 	taken 	of 	PERB 	files 	LA-R-42A 	and
LA-C0-79-78/79. 	The 	hearing 	officer, 	having 	thoroughly
reviewed 	the 	contents 	of 	the 	before-mentioned 	files, 	hereby
makes 	the 	following 	findings 	of 	fact 	thereon:
LA-R-42A
(1) 	On 	March 	23, 	1977 	a 	representation 	election 	between
SEIU 	and 	California 	School 	Employees 	Association, 	Chapter 	157
(hereafter 	CSEA) 	was 	held. 	The 	tally 	of 	ballots 	from 	the
election 	reveals 	that 	a 	majority 	of 	the 	valid 	votes 	counted
plus 	challenged 	ballots 	were 	cast 	for 	SEIU.
(2) 	On 	April 	5, 	1977 	SEIU 	was 	certified 	as 	the 	exclusive
representative 	of 	a 	unit 	of 	classified 	employees 	consisting 	of
maintenance, 	operations 	and 	transportation 	employees 	(hereafter
Unit 	A).
(3) 	On 	November 	29, 	1978 	CSEA 	filed 	a 	decertification
petition 	regarding 	Unit 	A pursuant 	to 	PERB 	Regulation 	33240.
(4) 	On 	December 	6, 	1978 	the 	Huntington 	Beach Union 	High
School 	District 	(hereafter 	District) 	and 	SEIU were 	notified 	by
PERB 	of 	the 	before-mentioned 	decertification 	petition,
requested 	to 	post 	notice 	of 	the 	receipt 	of 	the 	decertification
petition, 	irm 	or 	refute 	the 	i 	ion 	i 	in
petition, 	and 	provide 	a 	list 	to 	PERB 	of 	employees 	in 	the
unit.
3

(5) 	On 	January 	15, 	1979 	CSEA, 	the 	District 	and 	SEIU 	were
notified 	by 	letter 	from 	the 	Los 	Angeles 	Regional 	Director's
office 	that 	PERB's 	investigation 	into CSEA 1 s 	decertification
petition 	had 	resulted 	in 	an 	administrative 	determination 	that
the 	decertification 	petition 	had 	been 	timely 	filed 	and 	that 	the
showing 	of 	support 	thereon 	was 	adequate.
(6) 	On March 	8, 	1979 	an 	election 	was 	held 	between 	SEIU 	and
CSEA pursuant 	to 	a 	regional 	director 	directed 	decertification
election. 	A majority 	of 	the 	valid 	votes 	counted 	plus
challenged 	ballots 	were 	cast 	for 	CSEA.
(7) 	On March 	14, 	1979 	SEIU 	filed 	objections 	to 	the
election.
(8) 	On 	April 	3, 	1979 	the 	District 	filed 	a 	response 	to
SEIU 1 s 	objections 	to 	the 	election.
(9) 	On 	April 	24, 	1979 	CSEA 	filed 	a 	Motion 	for 	Summary
Judgment 	and 	Dismissal 	of 	Objections 	to 	Election.
(10) 	On 	April 	30, 	1979 	a 	hearing 	on 	the 	objections 	to 	the
election 	was 	scheduled 	for 	May 	9, 	1979.
(11) 	On May 	1, 	1979 	SEIU 	filed 	a 	response 	to CSEA 1 s 	Motion
for 	Summary 	Judgment 	and 	Dismissal 	of 	Objections 	to 	Election.
(12) 	On 	May 	10, 	1979 	SEIU 	filed 	a 	request 	to 	withdraw 	its
objections 	to 	the 	election, 	PERB 	issued 	an 	order 	cancelling 	the
formal 	hearing 	on 	the 	objections 	to 	the 	election 	and 	CSEA was
certified 	by 	the 	regional 	director 	as 	the 	exclusive
representative 	of 	the 	employees 	in 	Unit A.
4

LA-CO-79-78/79
(1) 	On 	April 	27, 	1979 	CSEA 	filed 	an 	unfair 	practice 	charge
against 	SEIU 	alleging 	violations 	of 	section 	3543.6(a) 	and 	(b)
in 	that 	SEIU 	allegedly 	filed 	fallacious, 	spurious 	and 	malicious
unfair 	practice 	charges 	against 	CSEA.
(2) 	On 	July 	9, 	1979 	Michael 	Heumann, 	Esq., 	staff 	attorney
for 	CSEA, 	wrote 	to 	the 	above-named 	hearing 	officer 	stating 	that
contingent 	upon 	SEIU's 	promise 	to 	withdraw 	its 	charges 	against
CSEA 	and 	the 	District 	in 	case 	numbers 	LA-CO-76-78/78 	and
LA-CE-452-78/79, 	CSEA 	requested 	withdrawal 	of 	its 	charge 	in
case 	number 	LA-CO-79-78/79.
Based 	upon 	the 	testimony 	of 	Charging 	Party's 	witnesses 2 ,
Ed Cramer, 	Glen Dysinger 	(appearing 	under 	subpoena) 	and
Ed 	Varela, 	the 	following 	findings 	are 	made:
(1) 	On 	December 	12, 	1978 	the 	District 	and 	CSEA 	entered
into 	a 	collective 	negotiating 	agreement 	in 	Unit 	B.
(2) 	The 	decision 	in 	Sonoma 	County Organization 	of 	Public
Employees 	v. 	County 	of 	Sonoma, 	(1979) 	23 	Cal.3d 	296 	[152 	Cal.
Rptr. 	903, 	591 	P.2d 	1], 	was 	handed 	down 	by 	the 	California
Supreme 	Court 	on 	February 15, 	1979. 	Shortly 	after 	that
decision 	was 	handed 	down, 	CSEA 	requested 	the 	District 	to 	meet
negotiate 	regarding 	an 	amendment 	to 	the 	contract 	between
2sEIU 	called 	no 	witnesses 	during 	the 	course 	of 	the
administrative 	hearing 	in 	the 	above-captioned matter.
5

the 	District 	and 	CSEA 	in 	Unit 	B. 	On February 	16, 	1979 	CSEA 	and
the 	District 	reopened 	negotiations 	pursuant 	to 	their
agreement.
(3) 	On March 	1, 	1979 	CSEA 	and 	the 	District 	modified 	their
contract 	whereby 	Unit 	B employees 	were 	granted 	a 	five 	(5)
percent 	salary 	increase 	effective 	February 	15, 	1979.
(4) 	On March 	2, 	1979 	CSEA 	distributed 	a 	flyer 	which 	is
quoted 	in 	full 	as 	follows:
WHO 1 s 	KIDDING WHO!
A Salary 	Increase 	for 	CSEA
in 	Huntington 	Beach
YES!
Enclosed 	is 	a 	copy 	of 	a 	Memorandum 	of
Understanding 	negotiated 	and 	signed 	by CSEA
Chapter 	157 	and 	the 	District, 	granting 	a 	5%
across-the-board 	salary 	increase 	for 	the
"white 	collar" 	unit members.
V O T E 	C S 	E A
MARCH 	8
The 	Pr 	essi 	in 	Re 	tions
(5) 	On March 	8, 	1979 	the 	decertification 	e 	tion 	in 	Unit 	A
between 	SEIU 	and 	CSEA 	was 	held 	th 	followi 	results: 	3
employees 	voted 	for 	no 	representation; 	60 	employees 	voted
CSEA, 	and 	54 	employees 	voted 	for 	SEIU.
6

(6) 	On May 	5, 	1979 	SEIU 	held 	a 	union meeting 	among 	union
members 	in 	Unit 	A at 	Marina 	High 	School. 	Howard 	Friedman,
candidate 	for 	SEIU's 	secretary-treasurer 	position, 	and 	Pat
Prete, 	business 	representative 	for 	SEIU, 	were 	present 	at 	said
meeting. 	Friedman 	and 	Prete 	asked 	that 	Friedman 	be 	endorsed 	by
Unit 	A members 	for 	secretary-treasurer.
Unit 	A members 	did 	endorse 	Howard 	Friedman 	for
secretary-treasurer 	who 	eventually 	won 	the 	election.
All 	members 	of 	SEIU 	in 	Unit 	A were 	eligible 	to 	vote 	in 	the
election 	for 	SEIU's 	secretary-treasurer. 	Prete 	told 	Unit 	A
members 	at 	the 	meeting 	that 	SEIU 	had 	a 	75 	to 	80 	percent 	chance
of 	winning 	the 	objections 	to 	the 	election 	case.
(7) 	On 	May 	8, 	1979 	Charging 	Party 	came 	into 	the
maintenance 	office 	at 	Marina 	High 	School 	and 	informed 	Ed 	Cramer
that 	Willie 	Griffin 	had 	decided 	not 	to 	pursue 	the 	objections 	to
the 	election's 	case.
(8) 	There 	are 	approximately 	170 	employees 	in 	the 	unit.
There 	are 	approximately 	70 	SEIU members 	in 	the 	unit. 	After
nearly 	a 	year 	of 	negotiations 	between 	the 	District 	and 	SEIU
regarding 	Unit 	A, 	SEIU 	started 	to 	lose 	members. 	SEIU 	had
approximately 	40 	members 	in 	Unit 	A at 	the 	time 	it 	lost 	the
decertification 	election 	he 	on March 	8, 	1979.
(9) 	On 	4, 	79 	Prete 	called 	ela, 	a 	long 	t 	r
of 	SEIU, 	and 	asked 	to 	set 	up 	a 	meeting 	between Charging 	Party,
Cramer, 	Varela 	and 	Prete. 	Prete 	called 	Varela 	again 	on 	May 	8
7

and 	told 	Varela 	that 	Willie 	Griffin 	had 	withdrawn 	the
objections 	to 	the 	election.
ISSUES
(1) 	Did 	SEIU 	violate 	its 	duty 	of 	fair 	representation
pursuant 	to 	section 	3544.9 	by 	withdrawing 	the 	objections 	to 	the
decertification 	election 	in 	Unit 	A?
(2) 	Has 	SEIU's 	conduct 	otherwise 	discriminated 	against 	or
interfered 	with 	employees 	in 	violation 	of 	section 	3543.6(b)?
CONCLUSIONS 	OF 	LAW AND 	DISCUSSION
Issue 	1
The 	facts 	are 	clear 	that 	as 	of 	January 	15, 	1979, 	pursuant
to 	PERB's 	investigation, 	a 	valid 	decertification 	petition 	had
been 	filed 	by 	CSEA 	and 	a 	question 	of 	representation 	existed 	in
Unit 	A. 	Thus, 	at 	the 	time 	SEIU 	withdrew 	its 	objections 	to 	the
Unit 	A election 	on March 	9, 	1979, 	a 	question 	of 	representation
existed 	in 	Unit 	A and 	SEIU 	was 	therefore 	not 	the 	exclusive
representative 	of 	employees 	in 	Unit A.
In 	its 	recent 	decision, 	Jules 	Kimmett 	v. 	Service 	Employees
International 	Union, 	Local 	99 3 , 	the 	PERB 	itself 	held:
The 	duty 	of 	fair 	representation 	in 	section
3544.9 	applies 	only 	to 	exclusive
representatives. 	Since 	the 	above 	actions
occurred 	be 	1 s 	certification,
section 	3544.9 	does 	not 	apply.
3(10/19/79) 	PERB 	Decision 	No. 	106.
8

For 	the 	same 	reasons 	expressed 	in Kimmett, 	supra, 	the
withdrawal 	of 	the 	objections 	to 	the 	election 	prior 	to 	the
certification 	of 	an 	exclusive 	representative 	in Unit 	A, 	did 	not
violate 	the 	duty 	of 	fair 	representation 	pursuant 	to 	section
3544.9.
Issue 	2
The 	Charging 	Party's 	allegations 	must 	be 	examined 	to
determine 	whether 	they 	constitute 	a 	violation 	of 	section
3543.6(b) 	separate 	and 	apart 	from 	any 	violation 	of 	section
3544.9.
Charging 	Party 	has 	alleged 	that 	then 	secretary-treasurer
Willie 	Griffin, 	with 	malice, 	withdrew 	the 	exceptions 	to 	the
election 	after 	SEIU 	Unit 	A members 	voted 	to 	support 	Griffin's
opponent 	Howard Friedman 	for 	the 	post 	of 	SEIU's
secretary-treasurer.
In Kimmett, 	suora, 	the 	PERB 	itself 	held 	that 	sections 	3540
and 	3543 	do 	not 	give 	employees 	more 	rights 	in 	the 	internal
activities 	of 	an 	employee 	organization 	than 	they 	have 	pursuant
to 	section 	3544.9. 	It 	is 	thus 	apparent 	that 	in 	endorsing
Howard 	Friedman 	for 	the 	post 	of 	secretary-treasurer, 	the
employees 	were 	engaged 	in 	strictly 	internal 	union 	affairs 	and
were 	not 	exercising 	a 	right 	guaranteed 	by 	sections 	3540 	or
3543. 	Even 	assuming 	that 	Charging 	Party 	could 	prove 	a 	causal
connection 	between 	the 	endorsement 	of 	Howard 	Friedman 	and
9

SEIU's
	withdrawal 	of 	the
	objections 	to
	the
	election,
	which
Charging
	Party 	in
	this
	case
	has
	not,
	it
	is
	clear 	that
	the
endorsement
	of
	Howard
	Friedman
	was
	not 	the
	exercise
	of
	a
	right
guaranteed
	by
	the 	Educational
	Employment
	Relations
	Act 	and
	any
possible 	discrimination
	which
	resulted
	therefrom
	is
	not
	in
violation
	of
	section
	3543.G(b).
ORDER
The
	unfair
	practice
	charge
	filed
	by
	Michael
	Edward
	Pottorff
against
	Service
	Employees
	International
	Union,
	Local
	99
	is
hereby	
DISMISSED.
Pursuant
	to 	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed 	Decision
	and 	Order
	shall
become
	final
	on
	January
	2,
	1980, 	unless
	a
	party
	files
	a
timely 	statement 	of 	exceptions.
	See
	California
	Administrative
Code,
	title
	8,
	part
	III,
	section
	32300. 	Such
	statement
	of
exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
	by
the 	Executive
	Assistant 	to
	the
	Board
	at
	the 	Headquarters 	Office
in
	Sacramento
	before 	the 	close 	of 	business
	(5:00 	p.m.)
	on
January
	2
	1980,
	in
	order 	to
	be
	timely
	filed.
	See
Cali 	nia
	nistrative
	,
	ti
	8,
	t
	III,
	section
32135.
	Any
	statement 	of 	exceptions
	and
	supporting
	brief
	must
be
	ser 	concurrently
	wi
	its 	fili
	upon
	each
	r
	to 	this
10

proceeding.
	Proof
	of
	service
	shall
	be
	filed
	with
	the
	Board
itself.
	See
	California
	Administrative
	Code,
	title
	8,
	sections
32300 	and
	32305,
	as
	amended.
Dated:
	December
	12,
	1979
11
/ 	- 	Kenneth
A.
	Perea
Hearing
Officer