Lafayette Unified School District (PERB A012E)

srATE
OF
CALIFORNIA
DECISION
OF THE EDUCATICNAL
EMPIDYMENT
REIATIONS
BOARD
In
the
Matter
of
the
Administrative Appeal
lAFAYEITE UNIFIED
SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA
SCHOOL EMPLOYEE
ASSOCIATION,
Chapter
134
Employee Organization,	
APPEI.l..ANI'.
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Case
No.
	SF-R-178
SF-UC-6
EERB
Order
No.	
Ad-12
Septerrber 28,
	1977
ORDER
TI1e
dismissal by the San Francisco Regional Director
of
the
petition
for
a change
in
unit
detennination submitted by the California School Employee
Association,
	Chapt~
134,	
in
the
above-cited case,
	is
	sustained by
the
Board
itself.
The
Board
finds 	that
the Regional Director has
correctly
applied
EERB
Resolution
No.
	6, 	issued on
July
6, 	1976.
Educational Employment Relations Board
by
~l?~
STEPHEN BARBER
Executive Assistant to the Board
9 /28/77
Jerilou
H.
	Cossack,
	Member,
	dissenting:
I disagree with
t.h.e
majority's deterrnination that the request for
1.ll'.lit
clarification filed by California School Employees Association
	(CSEA)
	should be
dismissed.

On
April
1,
	1976
CSEA
requested recognition
as
	the exclusive
representative
of
the
District's
classified
employees.
	On
M:iy
17,
	1976
the
District notified
the
EERB
that
it
wished to delay
recognition
in
order to meet and confer with
CSEA
over which job
classifications
should be excluded
£rem
the
negotiating
unit
as confidential,management
or
supervisory.
	On
June 14,
	1976
the
District
informed the
EERB
that
it
had recognized
CSEA
as the exclusive
representative
of
all
classified
employees except those
'which
can lawfully be designated as
management, 	supervisory
or
confidential."
	(Emphasis added.)	
On
November 21,
1976
CSEA
filed
a request
for
"change
in
unit
detemination.n
	CSEA's
request
reads,
	in
pertinent
part,
On
several
occasions
prior
to
and subsequent
to the
granting
of
voluntary recognition, 	the
District
and
CSEA.
have discussed exclusions from the bargaining
unit
and have been unable
to
reach agreement on these
exclusions.
	The
exclusions designated by the
District
at
the time
of
granting
of
voluntary recognition
are
excessive
in
the
eyes
of
CSEA.,
	which
leads us
	to
	seek
relief
through
the
Educational Employrrent Relations
Board on
this
issue
through
the hearing process, and
subsequent
rulings
on the appropriateness
of
the
bargaining
unit
and
t.11.e
exclusions
fran
that
unit.
Although
not disputing the existence
of
a continuing controversy regarding the
placement
of
some
ernployees,on December 21, 	1976
the
District
rroved
to
dismiss
CSE.A's
request.
	On
April 22, 	1977 the Regional Director dismissed
the request,
concluding
that in
the absence
of
a
jointly filed petition or
changed circumstances
EERB
Resolution
No.
	6 foreclosed
CSE.A's
petition.
	The
Regional
Director also
informed
CSEA.
that
if
the
District
refused to negotiate regarding employees
believed lawfully within the unit,
	CSEA
could seek recourse through the unfair
practice
procedures.
	CSEA
filed
a timely appeal to the Board
itself.
The threshold issue
is
	the
validity of
EERB
Resolution
No.
	6 as
the sole
basis for
dismissing
CSEA.'s
request
in this
case. 	This resolution, 	adopted by
the Board
at its
July 6, 	1976 public m:eting, 	provides:
RESOLVED:
Petitions for changes
in unit
detenninations pursuant
to Section 3541.3(e) 	of the Act
will
be entertained
by the Educational Employment Relations Board under
the following circurnstances:
1. 	Where both parties jointly filed the petition; 	or2. 	Where there has been a change in the circumstances
which existed at the time of the
initial unitdetermination.
-2-

Examination
of
the
minutes
of this
rre.eting
reveal
that
it
was
	intended
to
encourage
the
parties
	to
reach
interim
agreenents
'and
yet
not
forestall
	them
from
getting
a
	final
determination
from
the
EERB.
	There were
reservations
expressed
about
	the advisability
of
incorporating the
resolution
as
	a
part of
the
Board's
regulations.	
On
July
28,
1976,
	fonnal
regulations
were
adopted by
the
Board,
	nost especially
Regulation
33260, which
provides
in
pertinent part,
(a) 	An employee
o~anization,
	an employer,
	or
both
jointly,
	may
file
with 	e
regional
office
a
petition
for
a change
in
tmit
determination pursuant
to
Section
3541.3(e)
of
the
Act. 	(Emphasis added.)
It
is
significant
t.½.a.t
the
restrictions of
Resolution
6 were
not incorporat~d
into
the
Board's
formal
rules
and
regulations.
	Unlike
many
other resolutions
adopted by
the
Board subsequent
to
its
promulgation
of
its first
rules
	and regu-
lations,
	Resolution
6 cannot
be
construed as the
final articulation of
the
Board's
policies
regarding
tmit
change
petitions.
	It
has
simply been s1..1perceded
by
Regulation
33260.
No
question
has
been
raised
as
	to
	the majority
status
of
CSEA. 	Th.ere
are
merely a
handful
of
employees whose
mit
placem::nt
is
disputed.
	The
overriding
purpose
of
the
Educational
Employment
Relations
Act
is
	to
''proroote sound employer-
employee
relations."
	By
refusing
to
determine
the
tmit
placena1t
of the
	contested
employees
the majority
is
	exacerbating
a
dispute
which
reached us
	in the
first
place
because
the
parties
could
not
settle
it
themselves. 1
Selection
by
the
employees
of
an employee
organization to
be
their
exclusive
representative
symbolizes
the
conmencement
of
an ongoing
cooperative
relationship
with
definite
obligations
and cornmitt::rrEnts expected
of
both the
District
and the
exclusive representative. 	Prior to April
1, 	1976 such arrangements
did not exist.
With
the
EERA	
still
in
its
infancy,
	parties
should
not be expected
to
ham:ner out
disputed
details of unit
canposition unaided when they have derronstrated
their
inability
to
do so
to
	their
rrutual
satisfaction.
There
is
no
indication that
CSEA
abandoned
its
request to include
	the
disputed
employees
in
the negotiating
mit
in
exchange
for
sone concessions from
the
Distri~t.
2 Rather than acquiescing
in their
exclusion
from
the unit,	
CSEA
appears
1
see Brotherhood
of
Locorootive Firemen & Enginerren, 	145
NLRB
1521,
55
LRRM
1177 	(1964).
2
see Massey-Ferguson, 	Inc., 	202
NLRB
193, 	82
LRRM
1532 (_1973).
-3-

to
have
consistently
pressed
for
	their
inclusion.
	The
District
has
consistently
sought
their
exclusion. 	Undoubtedly
this
prolonged disagreerrent has
placed
a
great
strain
upon the ongoing
relationship of
the
parties.
	Requiring
resort
tothe adversarial
llI'lfair
practice
mechanisms as the only avenue
of
relief
and
foreclosing
utilization
of
the
unit
clarification
procedures
is
needlessly
further destructive
of
the nascent
relationship of
the
parties.
	Furthern::ore,
resort
to
the
unfair practice
mechanisms
of
the
EERB
would
require
that
CSEA.
insist
to
impasse on
negotiating
over
the
disputed employees, 	thus precludinga
	contract for
the remainder
of
the
classified
employees
until
	the
EERB
rendered
its
decision. 	This
is
hardly conducive to the
establisbnent
of
sound employer-
employee
relations, 	particularly
where a
viable non-adversarial
alternative exists.
Accordingly, 	I
	dissent.
~
-
Cossack,
	Member
-4-