Fontana Unified School District (PERB A169E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FONTANA 	CLASSIFIED 	EMPLOYEES
ASSOCIATION/NEA,
Employee 	Organization,
Appellant,
and
UNITED 	STEELWORKERS 	OF AMERICA
AFL/CIO,
Certified Representative,
and
FONTANA UNIFIED 	SCHOOL DISTRICT,
Employer.
Case No. 	LA-D-176
Administrative 	Appeal
PERB Order No. 	Ad-169
June 20, 	1988
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Appearances; 	Edward B. 	Hogenson, 	Executive Director, 	for
Fontana 	Classified 	Employees 	Association/NEA; 	Lipsky,
Blickenstaff 	& 	Fenton by 	Henry 	R. 	Fenton 	for 	United
Steelworkers of America, 	AFL/CIO.
Before Porter, 	Craib and 	Shank, 	Members.
DECISION
SHANK, 	Member: 	The 	Fontana 	Classified 	Employees
Association/NEA 	(hereafter 	"FCEA") 	appeals 	the 	decision of 	the
Los 	Angeles 	regional 	director 	dismissing 	its 	petition which
sought 	the 	decertification of 	the 	United 	Steelworkers 	of
America, 	AFL/CIO 	(hereafter 	"USWA") 	as 	the 	exclusive
representative 	of 	all 	classified 	employees 	within 	the 	Fontana
Unified 	School 	District 	(District).
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PROCEDURAL 	HISTORY
On July 1, 	1985, 	the FCEA filed a decertification petition
with 	the 	Public 	Employment 	Relations 	Board's 	(hereafter 	"PERB"
or 	"Board") 	Los Angeles 	Regional 	Office pursuant 	to PERB
Regulation 	32770(b)(2).1 FCEA 	sought 	to 	replace 	USWA 	as 	the
exclusive 	representative 	of 	all 	classified 	employees 	within 	the
Fontana 	Unified 	School 	District. 	Immediately before 	FCEA's
filing of 	the 	decertification petition, 	the 	USWA and 	the
District 	reached 	agreement 	on 	the 	terms 	of 	a 	successor
collective 	bargaining 	agreement.
The 	regional 	director 	of 	PERB's 	Los Angeles 	office
dismissed 	FCEA's 	petition as barred by 	the 	July 1, 	1985
agreement 	between 	the 	District 	and 	USWA. 	FCEA 	subsequently
appealed 	the 	regional 	director's 	dismissal 	to 	the 	Board. 	PERB
rejected 	FCEA's 	appeal 	on 	the 	procedural 	ground 	of
Untimeliness. 	FCEA 	then 	appealed 	PERB's 	decision 	to 	the 	Court
of Appeal 	and, 	on August 	26, 	1987, 	the Court of Appeal 	reversed
PERB's 	dismissal 	and 	directed 	this 	Board 	to hear 	the 	case.
1PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	Title 8, 	Part III, 	section 31001, 	et.
seq. 	PERB 	Regulation 	section 32770(b)(2) 	states:
(b) 	The petition 	shall be 	accompanied by proof 	that
at 	least 	30 percent 	of 	the 	employees 	in 	the
established 	unit 	either:
(2) 	Wish 	to be 	represented by another 	employee
organization.
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On March 4, 	1988, 	FCEA filed another 	decertification
petition. 	On May 5, 	1988, 	the parties 	to the 	instant appeal
entered 	into 	a 	consent 	election 	agreement 	which 	called 	for 	an
election 	on June 	2, 	1988. 	This 	election was 	in 	fact held on
its 	scheduled date.
DISCUSSION
This 	Board has 	long held 	that 	"where 	the 	essential 	nature
of 	a 	complaint 	is 	lost due 	to the 	superseding conduct 	of 	the
parties, 	it 	is 	rendered moot." 	Napa 	County Office of 	Education
(1983) 	PERB Decision No. 	282, 	citing Amador Valley Joint Union
High 	School 	District 	(1978) 	PERB Decision No. 	74.
The 	rationale 	supporting 	this 	Board's 	position 	is borrowed
from 	decisions 	of 	the 	United 	States 	Supreme 	Court 	and
California 	Supreme 	Court, 	as 	well 	as 	the 	California Courts 	of
Appeal 	addressing 	this 	issue. 	As 	the 	Court 	of 	Appeal 	declared
in Bell v. 	Board of Supervisors 	(1976) 	55 Cal.App.3d 629, 	636:
It 	is 	[the 	Court's] 	function 	"to decide
actual 	controversies 	by 	a 	judgment
which 	can be 	carried 	into effect, 	and
not 	to give 	opinions 	upon moot
questions 	or abstract propositions, 	or
2The 	Board 	takes 	official 	notice 	of 	its 	records 	which
contain 	information pertaining 	to 	this 	subsequently 	filed
petition 	and 	consent 	election 	agreement. 	Antelope Valley
Community College 	District 	(1979) 	PERB Decision No. 	97; 	Rio
Hondo Community College 	District 	(1980) 	PERB Decision No. 	128;
Delano Union 	Elementary School 	District 	(1982) 	PERB 	Decision
No. 	213(a). 	The consent election agreement was 	reached by
telephone 	on May 	5 	and memorialized by FCEA on May 	9, 	and by
USWA 	and 	the 	District 	on May 11, 	1988.
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to declare principles 	or 	rules 	of 	law which
cannot 	affect 	the matter 	in 	issue 	in 	the
case before 	[us]. 	It 	necessarily 	follows
that when, 	pending an appeal 	from 	the
judgment 	of 	a lower 	court, 	and without any
fault of 	the defendant, 	an event 	occurs
which 	renders 	it 	impossible 	for 	this 	court,
if 	it 	should decide 	the case 	in 	favor 	of
plaintiff, 	to grant him any effectual 	relief
whatever, 	the court will 	not proceed 	to a
formal 	judgment but 	will 	dismiss 	the
appeal." 	[Citations] 	Consolidated 	etc.
Corp. 	v. 	United etc. Workers 	(1946) 	27
Cal.2d 859, 	863, 	quoting from Mills 	v. 	Green
(1895) 	159 US 651, 	653; 	Paul v. 	Milk Depots,
Inc. 	(1964) 62 Cal.2d 129, 	132.
Here, 	just 	as 	in the aforecited cases, 	due 	to events which
have 	occurred, 	this 	Board 	cannot 	grant 	FCEA any effectual
relief 	should 	the 	Board 	decide 	in 	its 	favor. 	Were 	this 	Board
to 	reverse 	the 	dismissal 	of 	the 	decertification petition 	filed
in 	1985, 	the 	only appropriate 	relief 	would be 	to order 	a
decertification election. 	Following 	its 	March 	4, 	1988
petition, 	FCEA has 	already been 	granted 	such 	an 	election 	(on
June 2, 	1988).
ORDER
For 	the 	above 	stated 	reasons, 	the 	Board ORDERS 	that 	the
decertification petition 	in Case No. 	LA-D-176 	is hereby
DISMISSED as 	moot.
Members 	Porter 	and 	Craib 	joined 	in 	this 	Decision.
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