Summerville Elementary School District (PERB 0956E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SUMMERVILLE 	ELEMENTARY 	TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
SUMMERVILLE 	ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1495
PERB Decision No. 	956
November 	12, 	1992
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Summerville Elementary Teachers Association,
CTA/NEA; 	Littler, 	Mendelson, 	Fastiff & Tichy by Richard M. 	Noack,
Attorney, 	for Summerville Elementary School 	District.
Before Camilli, 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by 	the 	Summerville 	Elementary
Teachers Association, 	CTA/NEA 	(Association) 	of a Board agent's
dismissal 	(attached hereto) 	of 	the Association's 	unfair practice
charge. 	The Association alleged that 	the 	Summerville 	Elementary
School District had violated section 3543.5(a) 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by taking action to
1 EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5(a) 	(b) 	and 	(c) 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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
_______ )

unilaterally 	implement 	a proposal 	concerning wages 	and benefits,
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	Board agent's warning 	and
dismissal 	letters, 	and 	finding them to be 	free of prejudicial
error, 	adopts 	them as 	the decision of the Board itself.
The unfair practice 	charge 	in Case No. 	S-CE-1495 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
N	2

. . .. .
STATE OF CALIFORNIA 	' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198	PEAS
August 11, 	1992
Ramon E. Romero
California Teachers Association
P.O. 	Box 921
Burlingame, 	CA 	94011-0921
Re: 	Summerville Elementary Teachers Association v. 	Summerville
Elementary School District
Unfair Practice Charge No. 	S-CE-1495
DISMISSAL LETTER
Dear Mr. Romero:
On July 2, 	1992, 	you filed the above-referenced charge alleging
violations of Government Code section 3543.5(a), 	(b) and (c).
Specifically you have alleged that the District has violated
Government Code section 3543.5(c) 	"by announcing its clear intent
to unilaterally implement 	its latest proposal 	concerning wages
and benefits."
I indicated to you, 	in my attached letter dated July 17, 	1992,
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, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
July 27, 	1992, 	the charge would be dismissed.
On July 29, 	1992, 	I received your amended charge. 	In that
amended charge you submitted further information to support your
position that 	the Summerville Elementary Teachers Association
(SETA) 	has been voluntarily recognized as the exclusive
representative by the Summerville Elementary School District
(District). 	Specifically, you state that the District officially
recognized SETA as 	the exclusive representative at a May 14,
1991, 	meeting of the District's Board of Trustees. 	The minutes
of the meeting reflect that 	"The Board officially received the
Summerville 	Elementary Teachers Association/CTA/NEA contract
proposal and provided for public comment on the contract. 	Board
response to the contract will be on June agenda." 	You state

August 11, 	1992
Page 2
that 	from May 	1991 	to 	the present 	the parties 	have 	engaged 	in
negotiations 	for 	their 	first 	collective bargaining 	agreement 	and
that 	the District 	is 	in the process 	of 	filing with PERB a 	request
for 	impasse 	determination and the appointment 	of a mediator. 	You
further allege 	that 	in May 	1991 	"The District 	readily agreed 	to
enter 	into negotiations with SETA representative 	(sic) 	without
any hesitancy whatsoever because 	there was 	no question about 	the
fact 	that 	SETA had majority 	support 	from those 	certificated
employees 	who were 	in the unit." 	You also 	state 	that 	the
employer's 	initial 	proposal 	to 	SETA contained a 	recognition
clause 	in which 	the Association 	is 	recognized by the District 	as
the 	exclusive 	representative. 	Subsequently the District made a
proposal 	titled, 	"Right 	to Bargain," 	that 	stated that 	the
collective bargaining 	agreement 	between 	the parties 	was 	entered
into 	"pursuant 	to Chapter 10.7, 	sections 	3540-3549 	of 	the
Government 	Code 	("Act")." 	You 	refer 	to 	other proposals which
reflect 	the 	employer's 	recognition of 	the Association as 	the
exclusive 	representative.
I 	have 	also 	received your 	letter of 	July 29 	in which you 	contend
that 	this 	Board should adopt 	the more 	informal method of
voluntary 	recognition which 	has 	been accepted by 	the 	National
Labor Relations Board. 	You state that 	"EERA's language is
similar to that 	of 	the NLRA." 	You refer to section 9(a) 	of 	the
National 	Labor Relations Act 	(NLRA) 	and state 	that under that
section a 	representative 	is 	selected by a majority of 	employees
"without 	specifying precisely how that 	representative 	is 	to be
chosen. 	. 	." 	You contend that EERA can be construed 	"so as 	to
allow alternate methods 	of 	achieving 	exclusive 	representative
status" 	and does 	not 	specify 	"precisely" 	how an exclusive
representative is 	chosen. 	Lastly, 	you argue that 	"[t]he law
should not 	require 	such empty formalism, 	especially 	in a 	case
like 	this 	when proof 	of majority support 	for SETA is 	clear."11
As you and I discussed by telephone on or about July 23, 	1992, 	I
am aware 	of no authority to 	support 	the proposition that, 	under
EERA, 	the District may grant 	exclusive 	representative 	status 	to
an 	employee 	organization without 	the parties 	either proceeding
through 	the 	appropriate 	Public 	Employment 	Relations 	Board process
for voluntary recognition 	or by a 	PERB 	certified election. 	The
Educational 	Employment Relations Act 	(EERA) 	sets 	forth two
methods 	under which 	an 	employee 	organization may become 	an
exclusive 	representative. 	Government 	Code 	section 3544 	describes
the manner under which an 	employee 	organization may request
voluntary 	recognition by a public 	school 	employer and 	includes 	a
11 Neither 	the 	initial 	charge 	nor your amended 	charge 	describe
the proof 	of majority support.

August 11, 	1992
Page 	3
process 	for 	the 	determination 	of 	a 	proof 	of 	majority 	support 	by
PERB.22 The 	Government 	Code 	also provides 	for representation
elections 	(sections 	3544.1-3544.7). 	It appears 	to be 	the clear
intent 	of 	the 	Legislature 	that 	these 	two methods 	are 	the 	only
means 	by 	which 	an 	employee 	organization may become 	an 	exclusive
representative. 	SETA has 	availed 	itself 	of 	neither 	of 	these
methods 	and 	therefore 	does 	not 	qualify as 	an 	exclusive
representative under 	the EERA. 	Accordingly, 	the District 	does
2 Section 	3544 	of 	EERA states:
(a) 	An 	employee 	organization may become 	the
exclusive 	representative 	for 	the 	employees 	of
an appropriate 	unit 	for purposes 	of meeting
and 	negotiating 	by 	filing 	a 	request 	with 	a
public 	school 	employer alleging 	that 	a
majority of 	the 	employees 	in an appropriate
unit 	wish 	to be 	represented by 	such
organization 	and 	asking 	the 	public 	school
employer to 	recognize 	it 	as 	the 	exclusive
representative. 	The 	request 	shall 	describe
the 	grouping 	of 	jobs 	or positions 	which
constitute 	the 	unit 	claimed 	to be 	appropriate
and 	shall 	be 	based upon majority 	support 	on
the basis 	of 	current 	dues 	deduction
authorizations 	or 	other 	evidence 	such 	as
notarized membership 	lists, 	or membership
cards, 	or petitions designating the
organization as 	the 	exclusive 	representative
of 	the 	employees. 	Notice 	of 	any 	such request
shall 	immediately be 	posted 	conspicuously 	on
all 	employee 	bulletin boards 	in 	each 	facility
of 	the public 	school 	employer 	in which
members 	of 	the 	unit 	claimed 	to be 	appropriate
are 	employed.
(b) 	The 	employee 	organization 	shall 	submit
proof 	of majority support 	to 	the board. 	The
information 	submitted 	to 	the 	board 	shall
remain 	confidential 	and 	not 	be 	disclosed by
the 	board. 	The 	board 	shall 	obtain 	from the
employer 	the 	information necessary 	for 	it 	to
carry 	out 	its 	responsibilities 	pursuant 	to
this 	section and 	shall 	report 	to 	the 	employee
organization and 	the public 	school 	employer
as 	to whether 	the proof 	of 	majority 	support
is adequate.

August 11, 	1992
Page 	4
not 	owe 	SETA the 	duty 	to bargain 	in good 	faith which 	is 	owed 	to
exclusive 	representatives.
As explained in my letter of July 17, the District appears to have
met 	its 	obligation 	to meet and discuss proposals 	with a
nonexclusive 	representative. 	Therefore, 	the 	charge must be
dismissed.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations Board regulations, 	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 dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five 	copies
of 	such appeal 	must 	be actually 	received by 	the 	Board 	itself
before the 	close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States mail 	postmarked no 	later 	than
the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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.
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.

August 11, 	1992
Page 5
The 	request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding the 	extension, 	and shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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,
JOHN W. 	SPITTLER
General 	Counsel
By Bernard 	McMonigle
Regional 	Attorney
-
Attachment
cc: 	Richard M. 	Noack

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198	PERB
July 17, 	1992
Ramon E. 	Romero
California 	Teachers 	Association
P.O. 	Box 921
Burlingame, 	CA 	94011-0921
Re: 	Summerville 	Elementary Teachers Association v. 	Summerville
Elementary 	School 	District
Unfair Practice 	Charge No. 	S-CE-1495
WARNING 	LETTER
Dear Mr. 	Romero:
On July 2, 	1992, 	you filed the above-referenced charge alleging
violations of Government Code section 3543.5(a), 	(b) 	and 	(c).
Specifically you 	have 	alleged 	that 	the District 	has violated
Government 	Code 	section 3543.5(c) 	"by announcing its 	clear intent
to unilaterally 	implement 	its 	latest proposal 	concerning wages
and benefits."
The 	charge states 	that 	"at all 	times 	relevant herein, 	the
District has 	recognized the 	SETA as 	the 	exclusive 	representative
of 	an appropriate bargaining unit 	of 	the District's 	certificated
employees." 	From May 1991 	to the present, 	the District and the
Association 	"have 	engaged 	in negotiations 	for 	their 	first
collective bargaining agreement." 	On or about May 2, 	1992, 	the
District made 	the 	following proposal 	concerning wages 	and
benefits 	that
A. 	"Freeze" 	all 	salaries 	at 	the 	1991-92
step and reduce 	all 	salaries 	by five
percent;
B. 	Place a 	"cap" 	on all 	health and welfare
benefits 	at 	$409.86 	per month 	for
medical, 	$52.72 per month on dental 	and
$13.16 	on vision premiums 	paid by the
District.
You state 	that 	on June 	15 	and on June 23 	the District announced
its 	clear 	intent 	to 	implement 	the 	above proposal 	which it
described as 	its best 	and 	final 	offer.

July 17, 	1992
Page 2
The 	records 	in 	this 	regional 	office 	indicate 	that 	there 	is 	no
certified 	exclusive 	representative 	for 	the 	teachers 	at 	the
Summerville Elementary School District. 	That is, 	there has been
no 	exclusive 	representative 	certified by 	this 	agency 	either
through 	the 	appropriate 	process 	for voluntary recognition 	or by
certified election. 	Accordingly, 	the 	SETA would appear to be a
nonexclusive 	representative 	for 	the District's 	teachers.
In Los Angeles Unified School District 	(1983) 	PERB Decision
No. 	285, 	the Board set forth the rights of nonexclusive
representatives.
We 	stress 	that 	the 	obligation 	imposed on the
public 	school 	employer 	to meet with a
nonexclusive 	representative 	is 	not 	the 	same
as 	that 	imposed with 	regard 	to 	an exclusive
representative. 	Thus, 	whereas the public
school 	employer and 	representatives 	of
recognized 	or 	certified 	employee
organizations 	have 	the mutual 	obligation to
meet 	and negotiate 	in good 	faith with 	regard
to matters 	within 	the 	scope 	of 	representation
(section 3543.5), 	the Board finds that the
obligation 	imposed by EERA on public 	school
employers 	with 	respect 	to 	a nonexclusive
representative 	is 	to provide notice and a
reasonable 	opportunity 	to meet 	and discuss
wages, 	fringe benefits, 	and other matters of
fundamental 	concern to 	the 	employment
relationship prior to 	the 	time 	the 	employer
reaches 	a decision on such matters.
Your 	charge 	indicates 	that 	the parties 	have been engaged 	in
negotiations. 	The 	challenged proposals by the employer were
submitted by 	the District 	on May 22. 	Apparently 	there were
meetings 	on June 	15 	and June 	23 	in which the District 	reiterated
its 	intent 	to go 	forward with its proposals. 	There are no facts
which 	indicate 	that 	the 	employer did not meet 	its 	obligation 	to
provide 	notice 	and a 	reasonable 	opportunity 	to meet 	and discuss
the above proposals. 	Accordingly, 	this 	charge 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 	which would correct 	the
deficiencies 	explained above, 	please amend the charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB unfair

July 17, 	1992
Page 3
practice 	charge 	form, 	clearly 	labeled 	First Amended Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge or withdrawal 	from you before July 27, 	1992, 	I
shall 	dismiss your charge.1 If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
1I contacted your 	office 	to 	discuss 	this matter on July 	14
and was 	informed 	that 	you were 	on vacation but 	would be 	returning
on July 20. 	Accordingly, 	the warning letter gives you seven 	(7)
days 	from the 	date 	of 	your 	return 	from vacation 	to 	supply an
amended charge rather than the normal 	seven 	(7) 	days 	from the
date of 	the mailing of 	this 	letter.