Savanna School District (PERB 0276E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SAVANNA 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
SAVANNA 	DISTRICT 	TEACHERS 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-204
PERB Decision No. 	276
December 31, 	1982
Appearances: 	Steven J. 	Andelson and Brian M. 	Libow, 	Attorneys
(Atkinson, Andelson, Loya, 	Ruud & Romo) 	for Savanna School
District; 	A. 	Eugene Huguenin, Jr., 	Raymond L. Hansen and
Charles 	R. 	Gustafson, 	Attorneys 	for 	Savanna District Teachers
Association.
Before Tovar, 	Jaeger 	and Morgenstern, Members.
DECISION
TOVAR, 	Member: 	The Savanna School District 	appeals 	a
hearing officer's dismissal of 	its 	charge 	that 	the 	Savanna
District Teachers Association 	violated 	subsection 	3543.6(c) 	of
the 	Educational 	Employment 	Relations 	Act 	(EERA)1 by 	including
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	indicated.
Section 3543.6(c) 	provides 	as 	follows:
It shall 	be 	unlawful 	for 	an 	employee
organization 	to:
Refuse or 	fail 	to meet 	and 	negotiate 	in good
faith 	with 	a public 	school 	employer 	of 	any
of 	the 	employees 	of which 	it 	is 	the
exclusive 	representative.
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on 	its 	negotiating 	team 	employees 	of 	several 	neighboring 	school
districts. 	The 	attached Notice 	of Dismissal, 	issued 	by 	the
hearing officer, 	is 	based 	on 	the 	hearing officer's conclusion
that 	the 	charge 	fails 	to 	allege 	a 	prima facie 	violation 	of 	the
EERA.
On review, 	the 	Public Employment 	Relations 	Board 	has
considered 	the 	hearing 	officer's Notice 	of Dismissal, 	the
Savanna 	School 	District's 	appeal 	thereof 	and 	the 	entire 	record
in 	this 	case. 	Finding no 	prejudicial 	error 	of 	law or 	procedure
in 	the Notice of Dismissal, 	we 	summarily affirm 	the 	hearing
officer's 	determination 	to 	dismiss 	the 	charge 	and 	adopt 	her
conclusions 	of 	law 	set 	forth 	in 	the 	Notice of Dismissal 	as
those 	of 	the Board 	itself.
ORDER
Upon review of 	the entire 	record 	in this 	case, 	the 	Public
Employment 	Relations 	Board ORDERS 	that 	the 	charge 	filed 	in Case
No. 	LA-CO-204 	is 	DISMISSED without leave 	to 	amend.
1 0 .. .
Members 	Jaeger 	and Morgenstern joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAVANNA 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
SAVANNA 	DISTRICT 	TEACHERS
ASSOCIATION,
Respondent.
Case No. 	LA-CO-204
NOTICE 	OF 	REFUSAL TO
ISSUE COMPLAINT AND
DISMISSAL WITH 	LEAVE
TO AMEND
NOTICE 	IS 	HEREBY GIVEN 	that 	no complaint 	will 	be 	issued 	in
the 	above-captioned 	unfair 	practice 	charge 	and 	that 	it 	is
hereby 	DISMISSED 	with 	leave 	to 	amend 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this Notice. 	This 	action 	is
taken on 	the 	ground 	that 	the 	charge 	fails 	to 	allege 	a prima
facie 	violation 	of 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA).1
PROCEDURAL 	HISTORY
Savanna 	School 	District 	(hereafter 	charging 	party or
District) 	filed 	this charge on September 	1, 	1981, 	alleging a
violation of 	section 3543.6(c). 	The essence of 	the 	allegation
is 	that 	Savanna District 	Teachers 	Association 	(hereafter
respondent or Association), 	which 	is the exclusive
1Government 	Code 	section 	3540 	et 	seq. 	All 	statutory
references 	are 	to 	the California Government Code 	unless
otherwise 	specified.
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representative 	of 	a unit 	of 	certificated 	employees 	of 	the
District, 	has 	failed 	and 	refuses 	to meet 	and 	negotiate 	in good
faith 	by 	including, 	as permanent members of 	its 	contract
negotiating 	team, 	two employees who are 	not members 	of 	the
District 	bargaining 	unit 	represented 	by 	the 	respondent.
Instead, 	these 	persons 	are members 	of 	bargaining 	units 	in
neighboring 	school 	districts. 	Allegedly, 	the Association has
insisted on 	the presence 	of 	these persons 	as 	a condition of
continuing 	negotiations 	with 	the 	District. 	The 	District
asserts 	that 	the 	inclusion of 	non-bargaining 	unit
representatives 	on 	the Association's 	negotiating 	team 	is 	an
unlawful 	attempt 	by 	the 	respondent 	to
implement 	a multi-employer 	bargaining 	unit
under 	the 	auspices 	of 	coordinated bargaining
. 	. 	. which . 	. 	. 	impedes and undermines,
and 	continues 	to 	impede 	and 	undermine, 	and,
further, 	has 	the 	effect of 	impeding 	and
undermining 	the 	progress 	and 	resolution of
issues 	in 	negotiations 	by 	injecting 	outside
concerns, 	issues 	and philosophies which 	are
not 	necessarily 	related 	to 	the 	goals,
objectives 	and 	needs 	of 	the 	Employer's
certificated 	bargaining 	unit 	employees.
DISCUSSION
The 	essence of 	this 	charge 	is 	that 	the Association 	has
violated 	section 	3543.6(c) 	by 	engaging 	in or 	attempting 	to
engage 	in 	"coordinated 	bargaining" 	which 	is 	also 	known 	as
coalition or 	regional bargaining.2
2See Morris, The Developing Labor Law 	'1971), 	p. 	283.
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Section 	3543.6(c) 	makes 	it 	unlawful 	for 	an 	employee
organization 	to:
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	a 	public 	school 	employer 	of
any of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
Since 	the 	PERB 	has 	not 	had 	occasion 	to decide 	the 	question
of 	the 	legality 	of 	coordinated 	bargaining 	within 	the meaning
of 	section 	3543.6(c), 	it 	is 	appropriate 	to 	look 	to 	federal
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precedent 	for 	guidance. 	In 	private 	sector 	labor 	relations,
coordinated 	bargaining 	has 	generated much 	case 	law 	supporting
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the 	concept. 	Unde	A 	r 	section 	8(a)(5) 	of 	the Labor Management
Relations 	Act5 (hereafter 	LMRA), 	the National Labor
Relations 	Board 	(hereafter 	NLRB) 	and 	the 	federal 	courts 	have
formulated 	a 	test 	for 	determining 	the 	legality 	of 	coordinated
bargaining 	as 	a bargaining 	tactic. 	That 	test, 	which 	is 	based
on 	a case 	involving 	an 	employer's 	refusal 	to 	bargain 	because
of 	objections 	to outsider 	members 	of 	the 	union 	negotiating
committee, 	requires 	a showing 	of 	a 	"clear 	and present 	danger
to 	the 	bargaining process." 	See General Electric Co. 	v.
3Fire 	Fighters 	Union v. 	City of Vallejo 	(1974) 	12 	Cal.3d
608 	[87 	LRRM 	2453].
w
4Asee	see , 	for 	example, General Electric Co. 	v. 	NLRB 	(2d Cir.
1969) 	412 F.2d 	[71 LRRM 2418]; 	Standard Oil Co. 	v. 	NLRB 	(6th
Cir. 	1963) 	322 F.2d 40 	[54 LRRM 2007]; 	International
Brotherhood of 	Teamsters 	(2d Cir. 	1960) 	284 	F.2d 893 	[47 	LRRM
2089] .
5 29 U.S.C, sec. 158(a)(5).
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NLRB, 	supra, 	71 LRRM at 	2424. 	In this 	same case, 	the NLRB had
earlier 	held 	that 	a mixed-union 	negotiating 	committee 	is 	not
per 	se 	improper 	and 	that 	absent 	a 	showing 	of 	"substantial
evidence of 	ulterior motive 	or 	bad 	faith," 	a 	union's 	right 	to
select 	its 	negotiating 	committee 	cannot 	be 	qualified 	because
of 	the mere 	possibility 	that 	the presence of 	"outsiders" 	is
inherently 	disruptive 	of 	the 	bargaining 	process. 	See General
Electric Co. 	(1968) 	173 NLRB No. 	46 	[69 LRRM 1305]. 	The
Second Circuit, 	in upholding 	the NLRB's order, 	declared 	that
the 	"rights 	of employees 	[section 7 of 	the NLRA] 	and 	the
corresponding 	right 	of 	employers 	[section 	8(b)(l)(B) 	of 	the
NLRA] 	to choose whomever 	they wish 	to 	represent 	them 	in 	formal
6	labor 	negotiations 	is 	fundamental 	to 	the 	statutory scheme." 6
Section 	3543 	gives 	public 	school 	employees 	the 	right 	to
form, 	join 	and participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all matters 	related 	to 	employer-employee
relations. 	Even 	though 	the 	language of 	section 3543 	is not
precisely the 	same 	as 	that of 	section 	7 	of 	the NLRA, 	which
guarantees 	to employees 	"the 	right 	to bargain 	collectively
through 	representatives 	of 	their 	own 	choosing," 	it 	is 	similar
enough 	to conclude 	that 	the General 	Electric 	doctrine 	is
6General Electric Co. 	v. 	NLRB, op. cit., 	71 LRRM at 2421.
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applicable 	to 	charges 	of 	alleged 	coordinated 	bargaining 	by
public 	school 	employees 	and 	their 	representatives.
Applying 	this 	test 	to 	the present 	case, 	it 	is 	concluded
that respondent's conduct, 	as 	alleged, 	does not present a
"clear 	and 	present 	danger 	to 	the 	bargaining 	process" 	between
the 	parties. 	Although 	it 	is 	alleged 	that continued
negotiations 	have 	been 	conditioned 	on 	the 	presence 	of 	the
non-bargaining 	unit 	representatives, 	there 	is 	no allegation
that 	the 	Association 	has 	actually 	failed 	or 	refused 	to meet
and 	negotiate 	because 	of 	the District's 	objections 	to the
inclusion of 	"outsiders." 	And, 	finally, 	the complaint 	that
the 	presence 	of 	"outsiders" 	impedes 	and 	undermines 	the
negotiating 	process 	is 	not 	supported 	by 	any 	concrete 	examples
of 	disruptions 	to 	the process 	that would 	demonstrate 	"ulterior
motive 	or 	bad 	faith" 	on 	the part 	of 	the Association. 	In 	the
absence 	of more 	specific 	allegations, 	the 	respondent's 	conduct
does 	not 	rise 	to 	the 	level 	of 	an 	unfair 	practice.
This 	dismissal 	with 	leave 	to 	amend 	is 	issued pursuant 	to
PERB Regulation 	32630(a). 	If 	the 	charging party chooses 	to
amend, 	the 	amended 	charge must 	be 	filed 	with 	the 	Los Angeles
Regional 	Office 	of 	the PERB within 	twenty 	(20) 	calendar 	days.
(PERB Regulation 	32630(b).) 	Such 	amendment must 	be 	actually
received 	at 	the 	Los 	Angeles 	Regional 	Office 	of 	the 	PERB 	before
the 	close of 	business 	(5:00 p.m.) 	on October 	13, 	1981 	in order
to 	be 	timely 	filed. 	(PERB Regulation 	32135.)
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If 	the 	charging party chooses 	not 	to 	amend 	the 	charge, 	it
may 	obtain 	review of 	the 	dismissal 	by 	filing 	an 	appeal 	to 	the
Board 	itself 	within 	twenty 	(20) 	calendar 	days 	after 	service of
this Notice. 	(PERB Regulation 	32630(b).) 	Such 	appeal must
be 	actually 	received 	by 	the 	Executive 	Assistant 	to 	the 	Board
before 	the 	close of 	business 	(5:00 p.m.) 	on October 	13, 	1981
in 	order 	to 	be 	timely 	filed. 	(PERB Regulation 	32135.) 	Such
appeal must 	be 	in writing, 	must 	be 	signed 	by 	the charging
party or 	its 	agent, 	and must 	contain 	the 	facts 	and 	arguments
upon which 	the 	appeal 	is 	based. 	(PERB Regulation 	32630(b).)
The 	appeal 	must 	be 	accompanied 	by proof 	of 	service 	upon 	all
parties. 	(PERB 	Regulations 	32135, 	32142 and 32630(b).)
Dated: 	September 	23, 	1981 	WILLIAM P. 	SMITH
Chief 	Administrative 	Law 	Judge
By
W. 	Jean Thomas
Hearing 	Officer