Santa Monica Unified School District and Santa Monica Community College District (PERB 0052E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SANTA MONICA UNIFIED 	SCHOOL 	DISTRICT
AND SANTA MONICA COMMUNITY COLLEGE 	DISTRICT,
Employers,
and
CALIFORNIA SCHOOL EMPLOYEES 	ASSOCIATION,
CHAPTER 36,
Employee 	Organization,
and
SERVICE EMPLOYEES 	INTERNATIONAL 	UNION,
LOCAL 660,
Employee Organization.
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Case Nos. 	LA-R-29
LA-R-30
LA-R-176
PERB Decision No. 52
May,24, 	1978
Appearances: 	Charles L. 	Morrone, 	Attorney, 	for California School
Employees Association, 	Chapter 36; 	Robert A. 	Siegel, Attorney,
(O'Melveny & 	Myers), 	for Santa Monica Unified School District
and Santa Monica Community College District; 	and Howard Z. 	Rosen,
Attorney 	(Geffner & Satzman), 	for Service Employees 	International
Union, Local 660.
Before Cossack Twohey and Gonzales, 	Members. l
OPINION
On October 11, 	1977, 	Hearing Officer Kenneth A. 	Perea issued
the 	attached Proposed Decision. 	Thereafter, 	California School
Employees Association, 	Chapter 36 	(CSEA) 	filed exceptions.
I 	have 	considered 	the 	record as 	a whole 	and 	the 	attached
Proposed Decision 	in 	light of 	the 	exceptions 	filed and affirm the
rulings, 	findings and conclusions of the Hearing Officer only 	to
the extent consistent with this 	Opinion.
l Chairman Gluck took no part 	in the 	deliberations 	on 	this matter.

FACTS
Pursuant 	to 	a consent 	election agreement, 	an election was
held in an operations-support services unit on March 31, 	1977.
Following 	the 	election, 	CSEA filed 	timely objections 	to 	the con-
duct 	of 	the 	election.
As more 	fully 	set 	forth 	in 	the Hearing Officer's 	Proposed
Decision, 	four of the six objections, 	and the ones 	to which CSEA
has 	filed exceptions 	to 	the Proposed Decision, 	stem from a meeting
held by 	employee relations 	specialist 	Peter 	Sweers 	on March 	24,
1977 	at 	the 	Santa Monica Unified 	School 	District's 	board room.
Briefly, 	the 	facts 	surrounding 	that meeting are as 	follows.
Employee relations 	specialist 	Sweers, 	informed 	that 	classified
managers were unsure 	as 	to whether 	they were 	included 	in 	the
operations-support negotiating unit, 	requested 	supervisors 	Meyers
and Ontiveros 	to notify 	the 	excluded 	employees 	of a meeting 	to
clarify 	the 	issue. 	It appears 	that 	those persons 	excluded in
the 	consent 	election 	agreement 	from 	the 	negotiating unit--including
supervising head gardeners, 	supervising head custodians, 	senior
head 	custodians 	and junior 	head 	custodians--were 	notified of 	the
meeting by written notice. 	Other 	employees who were 	included 	in
the negotiating unit--including 	gardeners, 	junior head gardeners
and 	intermediate 	head 	gardeners--heard 	of 	the meeting by word 	of
mouth and attended on 	their own 	initiative. 	Approximately 	25-30
people attended 	the meeting, 	some 	of whom arrived 	late.
Employee 	relations 	specialist 	Sweers 	opened 	the meeting by
stating 	that 	he 	assumed all 	present 	belonged to 	the 	excluded
classifications 	of 	senior, 	intermediate and junior 	custodians.
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Intermediate head 	gardener Loch, 	the 	only 	intermediate head gardener
present 	at 	the meeting at 	this 	time,2 asked 	if 	the 	exclusion applied
to his 	classification as well. 	Sweers 	said that 	it 	did, 	thinking
Loch had 	said his 	classification was 	head gardener. 3 Intermediate
head gardeners 	are 	included in 	the unit, 	while 	senior head gardeners
are 	excluded. 	Sweers 	then read 	the 	definitions 	of 	supervisors 	and
management 	employees 	contained 	in 	the 	EERA and 	stated 	that 	the
assembled employees would not be 	eligible 	to vote 	in 	the upcoming
election. 	Several 	employees 	asked why 	they had been 	excluded
from the unit 	and 	specifically 	if CSEA had agreed 	to 	their 	exclu-
sion. 	While 	the 	testimony 	is 	conflicting as 	to whether or not
Sweers 	explained 	that 	the 	employer, 	CSEA and SEIU had all 	agreed 	to
the 	exclusions, 	Sweers 	did 	specifically 	state 	that 	CSEA had so
agreed.
The meeting was 	adjourned at 	approximately 4:00 	p.m. 	At 	the
end of 	the meeting 	several 	employees 	had questions 	regarding 	their
exclusion from the unit, 	subsequent representation, 	wages 	and
fringe benefits. 	Sweers 	told 	those assembled to 	look at 	the posted
EERB notice4 to 	determine 	if 	they were 	eligible 	to vote 	and 	to
2/ Three other intermediate head gardeners subsequently arrived
at 	the meeting.
3/ It is unnecessary to resolve whether Loch in fact referred
to himself 	as 	an 	intermediate head gardener 	rather 	than head
gardener. 	We note, 	however, 	that at 	the hearing held in this
matter Loch referred 	to himself as 	a "head gardener" 	and that
junior 	head 	custodian 	Featherstone 	testified without 	contradiction
that 	it 	is 	common for 	employees 	in the 	district 	to 	call 	senior,
junior 	and 	intermediate 	gardeners 	"head gardeners."
4/The EERB notice containing, among other things, a descrip-
tion of 	the negotiating unit, 	had been posted prior 	to 	this
meeting, 	on about March 14, 	1977.
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contact 	the District's 	supervisor 	of operations Meyers 	on 	the
other matters. 	Unbeknownst 	to Sweers, 	Meyers was 	to be out of
town until 	after 	the 	election. 	One 	intermediate head gardener
present, 	Rodriguez, 	did in fact consult 	the EERB notice and did
vote. 	Loch, 	the only other 	intermediate head gardener who
testified, 	neither 	consulted the 	election notice, 	read the 	campaign
literature mailed to him, 	nor voted.
Immediately 	following 	the meeting senior head 	custodian 	Fizz
asked 	the 	assembled employees 	if 	they were 	interested 	in getting
more 	information 	and 	in having 	a meeting with 	supervisor 	of
operations Meyers 	and CSEA. 	All agreed to 	this. 	Thereupon,
Fizz 	called CSEA president 	Alexander 	and 	"told her...what Mr. 	Sweers
had said CSEA had 	[done]...." 	Alexander agreed to 	a meeting. 	On
the 	following morning Fizz 	called Meyers, 	who 	said 	that he 	could
not 	attend 	such 	a meeting because he was 	going 	to be 	away. 	Fizz
then 	called Alexander 	and 	told her 	that Meyers 	was 	unavailable
and "... there would be no 	logic 	that 	I 	could see 	to meet with
CSEA and 	they have what 	they have 	to 	say and Mr. 	Meyers 	couldn't
say 	anything...."
Between 	the March 24 meeting and the 	election both Fizz, 	a
19 year CSEA member, 	and another excluded employee, 	junior head
custodian Featherstone, 	a 10 year CSEA member, 	talked to other
employees 	included in 	the unit. 	Both expressed their 	dissatis-
faction with being 	excluded 	from the 	unit 	and 	their 	disenchant-
ment with 	CSEA.
The 	tally of ballots 	reveals 	that 	of 	the 	approximately 260
eligible voters, 	105 cast ballots 	for SEIU, 	86 	for CSEA, 	and five
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for no 	representation. 	There were 	five 	challenged and 	two void
ballots.
Discussion
The 	Board 	specified 	the 	grounds 	for objections 	in 	its 	rules
and regulations. 	Rule 	33590 	states
33590. 	Grounds 	of Objections: 	Objections
shall 	be 	entertained by 	the 	Board only on 	the
following grounds:
(a) 	The conduct complained of is 	tanta-
mount 	to 	an unfair practice 	as 	defined 	in
Article 4 of the Act; 	or
(b) 	Serious 	irregularity 	in the 	conduct
of 	the 	election.
CSEA contends 	that 	the 	conduct 	described 	above was 	both an
unfair practice within the meaning of Sections 	3543.5(b) 	and
3543.5(d) 	of 	the EERA and constituted 	serious 	irregularity in 	the
conduct of 	the 	election.; 	I 	find no merit 	in these allegations.
I.
The 	graveman 	of 	CSEA's 	argument 	of unfair 	practices 	hinges
on allegations 	of conduct violative of Section 3543.5(d). 	This
section provides 	that 	it 	shall be 	an unfair practice 	for an
employer 	to 	"[d]ominate or 	interfere with the 	formation or admin-
istration of any employee organization, 	or 	contribute 	financial
or other 	support 	to 	it, 	or 	in any way encourage employees 	to join
any organization 	in preference 	to 	another." 	CSEA contends 	that
the District violated this 	section by 	(1) 	interfering with 	its
election 	campaign 	and 	therefore 	interfering with 	its 	administra-
tion, 	and 	(2) 	encouraging employees 	to join SEIU in preference
to CSEA.
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i 	The purpose of a provision such as 	Section 3543.5(d) 	is 	to
assure 	that 	an organization purporting 	to 	act on behalf of

employees 	in 	the negotiating relationship 	has wholehearted 	devo-
tion and 	single-minded 	loyalty 	to 	the 	interests 	of 	the 	employees
it 	represents.5 CSEA does 	not 	state with any 	specificity how this
basic 	purpose has 	been 	circumvented by 	the 	employer 	in 	this 	case.
It would appear, 	however, 	that CSEA advances 	two arguments 	as 	to
how 	the 	employer 	interfered with 	its 	election 	campaign 	and hence
its 	administration: 	First, 	some rank-and-file 	employees were
confused 	about 	their 	eligibility 	to 	vote because 	of 	employee
relations 	specialist Sweers' 	remarks 	at 	the March 24 meeting; 	and
second, 	two 	agreed-upon 	supervisory or managerial 	employees
expressed 	their 	disenchantment with 	CSEA and 	their 	exclusion 	from
the negotiating unit 	to 	rank-and-file 	employees.
An 	employer 	is 	free 	to 	address 	the 	issues 	raised by a pending
election with its 	employees, 	let alone 	its 	supervisors 	and managers,
provided no 	promises 	of benefits, 	threats 	of retaliation or other-
wise 	coercive 	statements 	are made.6 An employer 	is 	even free 	to
express 	antipathy 	toward 	an 	employee 	organization. 7 In 	the 	instant
5 See Hotpoint Division, 	General Electric Company, 	128 NLRB 788,
7 LRRM 1421 	(1960); 	Duquesne University of the Holy Ghost, 	198 NLRB
891, 	81 LRRM 1091 	(1972).
4
6NLRB v. 	Virginia Electric & Power Co., 	314 U.S. 	469, 	9 LRRM
405 	(1941).
7See The Bailey Company, 	75 NLRB 941, 	21 LRRM 1112 	(1948).",. in
which 	the National Labor Relations 	Board concluded, 	"We 	do not...
predicate 	our unfair 	labor practice 	finding upon 	the 	statements
contained 	in 	the 	circulars 	and notices 	distributed by 	the 	respon-
dent 	[employer], 	for although 	they clearly indicated respondent's
antipathy 	toward the Union and its 	leaders..., 	they appear 	to be
only 	such 	expressions 	of opinion 	as 	are protected by 	the 	constitu-
tional 	guarantee of free 	speech." 	at p. 	942.
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case 	the 	employer merely 	informed 	those 	assembled 	that 	some 	classi-
fications were 	excluded 	from the negotiating unit 	and 	ineligible 	to
vote. 	It would be 	difficult 	to 	find a more 	innocuous 	and less
coercive 	topic 	than 	a recitation 	of 	those 	classifications 	excluded,
by agreement of all 	the parties, 	from the negotiating unit. 	Nor
does 	the 	inadvertant 	statement 	that 	one 	included 	classification
was 	excluded warrant 	a contrary conclusion. 	In 	fact, 	when 	it
became 	apparent 	that 	there 	remained 	some 	confusion 	about which
classifications 	were 	included 	in 	and which 	excluded 	from 	the
negotiating unit, 	employee 	relations 	specialist 	Sweers 	admonished
those 	in doubt 	to 	check 	the official posted election notice. 	The
fact 	that 	some 	eligible 	employees 	did not 	heed 	this 	advice 	and
sought no 	clarification 	from either 	the 	official 	election notice
or 	either 	of 	the 	two 	competing 	employee organizations 	is 	certainly,
in 	these 	circumstances, 	not attributable 	to 	the employer.
; 	I 	also 	find no merit 	to 	the assertion that 	the employer
interfered with 	the 	administration of 	CSEA because 	of 	the 	state-
ments 	of 	disenchantment with 	CSEA made 	by 	two 	agreed-upon 	supervisory
or managerial 	employees. 	In 	the normal 	course of events 	the pre-
sumption 	is 	that 	an employer acts 	through agents, 	among whom are
its 	supervisory and managerial 	employees, 	and is 	therefore responsible
for 	their 	conduct 	on 	the basis 	of common 	law rules 	of agency.
However, 	acts 	of 	supervisors 	and managerial 	employees 	should not
be viewed 	in 	a vacuum but must be 	considered in 	the 	context 	of
the 	surrounding 	circumstances8. 	The 	danger 	to 	be avoided 	is 	the
8NLRB v. 	Brown Co., 	160 F.2d 449, 	455,19 LRRM 2444 	(1st Cir. 	1947);
Nassau and Suffolk Contractors' 	Association, 	Inc., 	118 NLRB 174,
182, 	40 LRRM 1146 	(1957).
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belief of 	rank-and-file 	employees 	that 	the 	employer 	encouraged,
authorized, 	or 	ratified 	the activities 	of 	supervisors 	and manage-
ment 	in 	such a manner 	as 	to 	lead 	the 	employees 	reasonably to believe
that 	they were 	acting on behalf of the employer.9
In 	the 	instant 	case, 	CSEA did 	sign 	the 	consent 	election agree-
ment 	excluding 	the 	two 	classifications 	of 	these 	employees, 	among
others, 	from the negotiating unit. 	Absent 	CSEA's 	agreement on 	the
unit 	composition, a unit 	determination hearing would have been held
which may have 	resulted 	in 	their 	inclusion 	in 	the negotiating unit.
CSEA was 	therefore 	in a very real 	sense responsible 	for 	the 	exclu-
sion of 	these 	two 	employees 	from the 	rank-and-file unit. 	Further-
more, 	CSEA had ample opportunity prior 	to 	the election to 	explain
to 	these 	and other 	employees why 	it had agreed 	to 	their 	exclusion.
It 	chose not 	to 	do 	so, 	even though informed of the 	confusion a
week prior 	to 	the 	election. 	The mere 	articulation of 	dissatisfac-
tion with 	the 	treatment 	received 	from an 	employee 	organization by
persons who had 	themselves 	been members 	for many years 	does 	not,
itself, 	constitute 	either 	explicit 	or 	implicit 	interference with
the administration of the 	organization. 	Under 	the 	circumstances,
and absent 	any 	evidence 	that 	the 	employer knew of Fizz' 	and
Featherstone's 	comments, 	let alone encouraged, 	authorized, 	or
ratified their activities, 	it 	is 	unrealistic 	to 	conclude 	that
the 	rank-and-file 	employees 	to whom they were made would 	reasonably
believe 	that 	the 	comments 	were 	anything other 	than 	the 	personal
9Nassau and Suffolk Contractors' 	Association, 	Inc., 	supra
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opinions 	of Fizz 	and Featherstone 	about 	their 	treatment by an
organization of which 	they had been members 	for many years.
Finally, 	CSEA offered no 	evidence 	that Fizz, 	Featherstone
or anyone 	else 	encouraged any employees 	to 	support, 	much less
join, 	SEIU instead of CSEA. 	In fact, 	there was no 	evidence 	that
Fizz 	or 	Featherstone 	even mentioned 	SEIU when 	complaining 	about
their perceived 	abandonment by 	CSEA. 	Their 	expressions 	of
dissatisfaction, 	alone, 	hardly constitute either 	implicit or
explicit 	support 	for another, 	rival 	organization. 10
For 	the reasons 	set 	forth above, 	I 	conclude 	that 	the employer
engaged in no 	conduct violative of 	Section 3543.5(d).
CSEA 	further 	asserts 	that 	the 	District violated 	Section
3543.5(b) 	of the EERA. 	This 	section provides 	that 	it 	shall be
an unfair practice 	for an employer 	to 	"[d]eny 	to 	employee organi-
zations 	rights 	guaranteed 	to 	them by 	this 	chapter." 	CSEA contends
that 	its 	"right" 	to 	conduct an election campaign was 	abridged by
the 	same 	events which 	I 	have 	found not to. constitute a violation
of Section 3543.5(d).
I 	agree 	that 	an employee 	organization is 	entitled 	to wage
an 	election 	campaign. 	I 	do not here 	decide whether 	interference
with a 	campaign which 	does 	not 	otherwise violate 	any other 	section
of 	the EERA may violate 	Section 	3543.5(b) 	because 	I 	fail 	to 	see
how 	any of 	the 	conduct 	complained of prevented 	CSEA 	from waging
whatever 	campaign it 	chose. 	Inherent 	in 	the whole notion of an
10Compare Goshen Litho, 	Inc., 	196 NLRB 977, 	80 LRRM 1829 	(1972),
enfd, 	cas mod. 	476 F.2d 662, 	83 LRRM 2001 	(1973).
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election campaign 	is 	communication with eligible voters. 	Fizz,
an 	excluded 	employee, 	called CSEA president Alexander 	and 	told
her what had happened at 	the March 24 meeting. 	While 	the record
is not exactly clear as 	to what Fizz 	told Alexander, 	it would
appear 	that 	he 	at 	least 	told her 	that 	the 	employer had 	said his
classification 	and 	that 	of Featherstone 	had been 	excluded 	from
the negotiating unit. 	There 	is no 	evidence 	that CSEA attempted
to 	contact Fizz, 	Featherstone or any employee 	to 	discuss 	the
exclusions 	from 	the negotiating unit. 	It 	is 	hardly incumbent
on an employer 	either 	to 	alert 	an employee organization of 	dis-
enchantment with 	it 	among 	employees 	or 	to 	arrange 	for 	a meeting
for 	the 	employee organization 	to 	explain 	its views. 12 In 	fact,
to do 	so 	could constitute a violation of Section 3543.5(d).
Accordingly, 	I 	conclude 	that 	the 	employer 	engaged 	in no 	conduct
violative of Section 3543.5(b).
II.
CSEA 	contends 	that 	the 	previously 	described 	conduct 	consti-
tutes 	a 	serious 	irregularity 	in 	the 	conduct 	of 	the 	election
because 	it 	had 	the 	effect 	of 	either 	discouraging 	employees 	from
voting 	all 	together or 	encouraging 	employees 	to vote 	for 	SEIU
in preference 	to 	CSEA. 	I 	disagree.
The 	record 	is 	totally 	devoid of 	any 	evidence 	about 	the
election campaign. 	It is, 	therefore, 	impossible to 	determine
whether 	the 	composition 	of 	the negotiating unit was 	elsewhere
discussed.
1 2 	- N L R B v B a b c o c k & W i l c o x C o . , 3 5 1 U . S . 1
( 1 9 5 6 ) .
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In Tamalpais 	Union High 	School District,13 the Board's 	first
case involving objections 	to 	the conduct of an election, 	we 	con-
cluded 	that neither poll-monitoring, 	the presence of 	television
cameras 	for brief periods 	during 	the balloting, 	nor reproduction
and marking of the 	sample 	election ballot, 	alone or 	in combination,
constituted 	serious 	irregularity. 	We 	also 	established a 	two-
pronged 	test 	for 	determining whether voter 	participation 	in 	the
election had been discouraged: 	(1) 	direct 	evidence 	that voter
participation was 	discouraged or 	(2) 	the 	conduct 	complained of
had 	the natural 	and probable 	effect 	of 	discouraging voter
participation.
In 	the 	instant 	case one 	eligible 	employee, 	intermediate
head gardener Loch, 	did not vote because he 	felt he was 	ineligible
as 	a result of District 	employee relations 	specialist 	Sweers'
remarks 	at 	the March 	24 meeting. 	However, 	I 	do not view this
as 	sufficient 	to warrant 	setting aside 	the 	election.
While 	an 	employer 	is 	not 	free 	to 	create 	confusion about
voter 	eligibility 	either 	deliberately or 	inadvertently, 	neither
are 	employees 	excused 	from 	their 	responsibility 	for 	being 	informed
about pertinent election issues. 	In fact, 	Rule 33590 was pro-
mulgated 	limiting 	the 	grounds 	on which objections 	to 	the 	conduct
of 	an 	election would be 	entertained on 	the 	assumption 	that 	in
most 	circumstances 	employees... 	have 	the ability to 	inform them-
selves 	about 	election 	issues 	and 	are 	capable 	of making mature
judgments.14 In all 	of the circumstances present here, 	particularly
13EERB Decision No. 	1, 	1 PERC 1, 	July 20, 	1976.
14See Shopping Kart Food Market, 	Inc., 	228 NLRB No. 	190, 	94
LRRM 	1705 	(1977).
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the 	firm admonition 	of Sweers 	to 	employees 	to 	check 	the official
EERB Notice 	to 	determine 	if they were 	eligible 	to vote, 	the
amount 	of 	time 	available 	to 	permit 	any 	employee 	confused 	about
eligibility to 	ascertain his 	true 	status, 	the fact 	that at 	least
one 	other 	employee 	in 	the 	same 	classification as 	Loch who was
also 	present 	at 	the meeting 	did vote, 	and the 	fact 	that 	even had
Loch voted 	and voted 	for 	CSEA 	the 	outcome 	of 	the 	election would
not have been affected, 	Loch's 	failure 	to vote 	does 	not 	constitute
serious 	irregularity.
CSEA also 	argues 	that 	Sweers 	statements 	at 	the March 24
meeting 	"created...a hostile 	atmosphere 	against 	CSEA while 	CSEA
was 	attempting 	to 	conduct 	an election campaign" with 	the 	result
that 	employees 	were 	discouraged 	from voting 	and/or 	employees 	were
encouraged to vote 	for SEIU 	in preference 	to CSEA. 	Since 	there
was 	no 	evidence 	that 	Sweers 	at 	any 	time 	expressed any opinion
about CSEA, 	CSEA apparently considers 	the expressions of dis-
enchantment 	by 	senior head 	custodian Fizz 	and junior head 	custodian
Featherstone 	as 	evidence of a hostile 	atmosphere. 	The 	fact of the
matter 	is 	that 	CSEA did agree 	to 	exclude 	the job 	classifications
of Fizz 	and Featherstone 	from the 	rank-and-file unit. 	Apparently
CSEA reached 	this 	decision without 	consulting Fizz 	or 	Featherstone.
While 	Fizz 	and Featherstone, 	and possibly other 	long-term CSEA
members belonging 	to 	excluded classifications, 	may have misinter-
preted CSEA's 	decision, 	the obligation 	to explain 	the 	decision
and mitigate 	any negative 	impact 	on 	eligible voters 	rests with
CSEA, 	not the employer. 	Finally, 	as 	elsewhere noted, 	there is no
evidence 	that 	Fizz 	or 	Featherstone 	coupled 	their 	expressions 	of
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dissatisfaction with 	CSEA with 	any 	expressions 	of 	opinion 	about
SEIU. 	I 	find no 	serious 	irregularity 	sufficient 	to 	set 	aside
the 	election .
Accordingly, 	CSEA ' s 	objections 	to 	the 	conduct 	of 	the 	election
are 	overruled . 	Inasmuch as 	SEIU has 	received 	a 	majority of 	the
valid votes 	cast, 	it 	shall 	be 	certified 	as 	the 	exclusive 	representa-·
tive 	of 	the 	employees 	in 	the 	operations-support 	services 	unit
described 	in 	the 	consent 	election 	agreement.
ORDER
It 	is 	hereby ordered 	that
(1) 	CSEA ' s 	objections 	are 	overruled.
(2) 	Service 	Employees 	International Union, 	Local 	660, 	is
certified 	as 	the 	exclusive 	negotiating 	representative 	of 	the
employees 	described 	in 	the 	consent 	election 	agreement.
By: Jerilou Cossack Twohey, Membertf
Raymond J . 	Gonzales, 	Member, 	concurring .
I 	concur 	in 	the 	above 	Order . 	This 	case 	presents 	issues 	that 	should
be 	resolved 	in deliberations 	by 	all 	three 	Board members . 	By
concurring 	separately 	in 	the 	result, 	I 	leave 	the 	Board 	free 	to
consider 	these 	issues 	in 	future 	cases 	while 	giving 	the 	parties 	a
final 	decision on 	the 	facts 	in 	this 	case .
~ 	I. 	_. 	.I 	.,.
*
-13-
Raymond J. 	Gonzales, 	Member

_______________ )
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of
SANTA MONICA UNIFIED SCHOOL DISTRICT
AND SANTA MONICA COMMUNITY COLLEGE
DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
CHAPTER 36,
Employee Organization,
and
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 660,
Employee Organization.
)
)
)
) 	Case Nos. LA-R-29
LA-R- 30
LA-R-176
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)"
Appearances: 	Charles L. Marrone, Attorney, for California School Employees
Association; Howard Z. Rosen, Attorney (Geffner & Satzman), for Service Employees
International Union, Local 660; Robert A. Siegel, Attorney (O'Melveny & Myers), for
Santa Monica Unified School District.
Before Kenneth A. Perea, Hearing Officer.
STATEMENT OF THE CASE
On March 31, 1977, an election was conducted by the Los Angeles office of
the Educational Employment Relations Board (EERB) pursuant to a consent election
agreement for employees of the Santa Monica Unified School District and Santa
Monica Community College District 	(Employer) employed in the operations-support
services unit. The majority of the employees who participated in the election
-1-

selected Service Employees International Union, Local 660, (SEIU) as their
exclusive bargaining representative.
Thereafter, California School Employees Association 	(CSEA), a party
to the election, filed timely Objections to the Election alleging that certain pre-
election conduct of the Employer was tantamount to an unfair labor practice and also
constituted a serious irregularity in the conduct of the election warranting the Los
Angeles Regional Office of the EERB to set aside the election and conduct a second
election.
In its objections dated April 5, 1977, CSEA alleged seven separate objections.
1. 	CSEA alleges that on March 24, 1977 the Employer's employee relations
officer, Peter C. Sweers, had a meeting in which both management and negotiating unit
The tally of ballots signed by the parties shows the following results:
Approximate number of eligible voters 	260
Void ballots 	2
Votes cast for Local 660 SEIU - AFL-CIO 	. . . 	105
Votes cast for California School Employees Assoc. & its Santa. 	. 	. 	86
Monica Chapter No. 36
Votes cast for 	— 	. 	. 	. 	0
Votes cast for no representation 	5_
Valid votes counted 	196
Challenged ballots 	5_
Valid votes counted plus challenged ballots 	201
-2-

employees were present, 	in which he responded to a question from a senior head
custodian as to why senior head custodians had been removed from the 	negotiating
unit by stating that CSEA was responsible for removing senior head custodians
from the 	negotiating unit. CSEA alleged that a senior head custodian was upset with
CSEA due to Sweers' response in that Sweers' response constituted a ". 	. 	. denial of
CSEA's rights to conduct an election campaign without unwarranted interference
from [the] 	employer, and being tantamount to encouraging employees to select
another employee organization in preference to CSEA."
2. 	CSEA realleged the statement attributed to Sweers 	in another objection and
adds that a junior head custodian, Kenneth A. 	Ritter, heard Sweers1 statement,
and became disenchanted with CSEA. 	CSEA alleges that Sweers' statement constituted
election interference which encouraged employees to select SEIU rather than CSEA.
3. 	CSEA, referring to the March 24, 1977 meeting in which Sweers made a pre-
election statement, alleges that in response to the statement by an intermediate
head gardener in which he identified himself as an intermediate head gardener, 	Sweers
stated that he was in the same group with the custodians who were excluded from the
negotiating unit. CSEA alleges that Sweers 1 	statement caused the intermediate
head gardener, Louis L. Loch, 	to believe that he was excluded from the 	negotiating
unit and not to vote in the election.
4. 	CSEA alleges that during the March 24, 1977 meeting Jesus Rodriguez, an
intermediate head gardener, was given the impression that he was excluded from the
negotiating unit. CSEA alleges that this impression is attributable to the Employer
in that the conduct of the Employer constitutes a denial of CSEA's right to conduct
an election campaign without Employer interference, 	although the objection further
states that Rodriguez did in fact vote in the election.
5. 	CSEA alleges that a negotiating unit employee, Jackie Gurrion, was approached
by negotiating unit carpenters in the vicinity of the voting location who asked her
-3-

if she was going to vote for SEIU. 	CSEA contends that the polling location was
under the control of the Employer and that the Employer had a duty to prohibit
electioneering in the vicinity of the polling location, 	that it failed to do so,
and that such breach of its duty constitutes a serious irregularity in the conduct
of the election.
6. 	CSEA alleges that within ten working days prior to the date of the
election, 	the Employer supplemented its list of eligible voters previously
distributed to the parties in conformity with EERB Regulation 33530,2 and that this
distribution constitutes a serious irregularity in the conduct of the election.
7. 	In its final objection, CSEA incorporates by reference its previous six
objections alleging 	that the Employer's pre-election conduct in March 1977
constituted a serious 	irregularity in the election which interfered with 	the right
of CSEA to conduct an election campaign without unwarranted Employer interference.
A hearing on the objections herein was conducted on June 8 and 9, 	1977. 	At the
commencement of the hearing, 	SEIU moved to intervene as the real party in interest
in that should the hearing officer or the Board sustain any or all of the objections
and set aside the election, 	it would be SEIU which would be adversely affected as
it had previously been selected by the employees as their exclusive 	negotiations
representative. 	The hearing officer granted the motion to intervene, 	finding SEIU
to be an interested party.
After both CSEA and the Employer had presented their cases in chief with
respect to the objections, SEIU moved to dismiss Objections Nos. 4 and 5 on the
basis that CSEA had not presented a prima facie case. 	The hearing officer denied
SEIU's motion with respect to Objection No. 	4 and granted the motion with respect
to Objection No. 5.
2Calif. Admin. Code, Title 8, Section 33530.
-4-

ISSUES
1. 	Did the employer engage in unlawful pre-election conduct on March 24, 	1977?
2. 	Did the employer fail to furnish the employee organizations with a timely
list of eligible voters pursuant to Regulation 33530 which constituted a serious
irregularity in the conduct of the election?
FINDINGS OF FACT
A. 	The Meeting of March 24, 1977
(1) 	Background
On February 28, 1977, the parties to this proceeding executed a Consent
Election Agreement (Agreement), the terms of which they had arrived at during
the course of, and in settlement of, a unit determination hearing in late 1976
before an EERB hearing officer. 	The Agreement provided for the March 31 election
and for the exclusion from the unit in which the election was to be conducted
(the operations/support services unit) of the following classes of employees, which
the Agreement designates as "management employees within the meaning of Government
Code Section 3540.l(g)": supervising head gardener, supervising head custodian,
senior head custodian, intermediate head custodian and junior head custodian.
The Agreement includes within the operations/support services unit, among other
classifications, "Gardener, Junior Head" and "Gardener, Intermediate Head."
The Los Angeles Regional Office of the EERB prepared Notices of Election
containing the inclusion and exclusion language of the Agreement. 	Mr. Peter Sweers,
the District's employee relations specialist, 	caused these notices to be posted on
or about March 14. 	Thereafter, Mr. Sweers received word from two senior managers,
Mr. William Meyers and Mr. Richard Ontiveros, 	that some employees who had been
designated as managers in the Consent Election Agreement were unsure as to whether
3 The 	Agreement further states, however: 	"Approval of this Consent Election
Agreement should not be interpreted to mean the Board would find the unit described
herein to be an appropriate unit in a disputed case."
- 5 -

-6-
or not they were going to be allowed to vote. 	In order to clarify the situation
for management-designated employees, Mr. 	Sweers decided to call a meeting for
March 24, one week before the election. 	Mr. 	Sweers asked Mr. Meyers and
Mr. 	Ontiveros to notify those employees who were excluded from the 	operations
support services unit to attend the meeting. 	Mr. 	Sweers instructed them to have
junior head custodians, 	intermediate head custodians, head custodians and head
gardeners and those who had questions about being excluded from the unit to
attend the meeting. 	Mr. 	Sweers testified that he did not know exactly how
Mr. Meyers and Mr. 	Ontiveros notified the employees about the meeting. 	However,
Theodore Fizz, 	a senior head custodian and Glenn Featherstone, 	a junior head
custodian, 	both testified they received written notices of the meeting. 	Louis Loch,
an intermediate head gardener, testified 	that he heard about 	the meeting 	from a
custodian named Chuck. 	Jesus Rodriguez, another intermediate head gardener, heard
from the District's head gardener. 	From this sparse evidence, 	the hearing officer
infers that ineligible voters were summoned to the meeting in writing whereas the
intermediate head gardeners present at the meeting 	(discussed below) were notified
by word of mouth.
(2) 	The Meeting
The meeting took place in the District's Board Room on March 24, 	1977.
Testimony regarding the number of employees who attended conflicted, 	the witnesses
estimating between 20 and 30. 	Among these 20 to 30 employees were five
intermediate head gardeners: 	Peter Felix, Bill Keerits 	(spelled in the record
phonetically), Louis Loch, Jesus Rodriguez and a man named Joe whose last name
Mr. Rodriguez, called as a witness by CSEA, could not pronounce. 	Mr. Sweers had
called the meeting for 3:30 p.m., but arrived a few minutes late. 	When he arrived,
Theodore Fizz was addressing the group. 	Sweers waited a few moments for a
discussion between Fizz and the other employees to end. 	Then he interjected asking
whether the conversation could be wrapped up quickly since they would have to be
out of the room by 4:00 p.m. 	Fizz immediately yielded the floor.

Mr. Sweers opened the meeting by stating that he assumed that the employees
present all belonged to excluded classifications of custodians such as senior
custodians, intermediate custodians, and junior custodians. 	There is no evidence
that he mentioned that one excluded class of gardener, supervising head gardener.
This mention of classes of custodians led intermediate head gardener, Mr. Loch, to
ask whether the exclusion applied to him, too. 	Mr. Sweers then asked Mr. Loch what his
.
classification was. 	Mr. Sweers testified that Mr. Loch called himself a "head gardener."
Mr. Loch's recollection was that he referred himself as "intermediate head gardener."
Mr. Loch's recollection of details of this question and answer (although not necessarily
of the whole meeting) seemed to the hearing officer much sharper and more detailed than
Mr. Sweers. The hearing officer finds that Mr. Loch referred to himself as an intermediate
head gardener. 	Mr. Sweers, however, believed that Mr. Loch had said "head gardener"
and assumed that Mr. Loch was the supervising head gardener. 	To Mr. Loch's question,
Mr. Sweers replied that the "same thing" (exclusion) applied to Mr. Loch. 	Mr. Loch
further stated that he did not vote in the election, because he did not believe he was
eligible to vote, based upon what he found out at the meeting, although prior to the
meeting he believed that he was eligible. 	Mr. Jesus Rodriguez testified that he did
vote. 	No party offered evidence regarding whether the other three intermediate head
gardeners present at the meeting voted.
Mr. Sweers went on the read Section 3540.l(g) of the EERA, which defines
"Management employee," to those assembled, and explained once again that the
employees at the meeting would not be allowed to vote in the upcoming election.
At this point, several employees, including Mr. Fizz, asked for further
explanation for the reason they had been excluded from the unit. 	According to
Mr. Sweers' testimony, he responded that "two union" (CSEA and SEIU) and the
Employer had agreed to the exclusions. 	Mr. Glen Featherstone, another employee-witness,
recalls Mr. Sweers mentioning the negotiations. 	Mr. Fizz and possibly others then
asked specifically whether CSEA had agreed to the arrangement. 	Mr. Sweers answered
-7-

that, yes, CSEA had agreed.
Mr. Fizz, on the other hand, remembered 	Mr. Sweers, "at the end of the meeting,"
saying that CSEA "put [the employees] in management." 	Similarly, 	Mr. Featherstone
testified that he thought he remembered Mr. 	Sweers saying that certain of the
employees at the meeting had been "separated from CSEA."
Some of the men at the meeting, Mssrs. Fizz and Featherstone included, inter-
preted Mr. 	Sweers' answer to the specific question about CSEA's acquiescence in the
exclusions to mean that CSEA had been solely responsible for them. 	The hearing
officer finds that they did not reasonably do so.
Fizz and Featherstone became quite upset over what they took to be a betrayal
by CSEA. 	Mr. Fizz related his version of what Mr. Sweers had said to nine eligible
voters, all of which, as far as Mr. Fizz knew, voted in the election. 	He also
contacted 	Ms. Etta Alexander, President of CSEA, Chapter 36, related his version of
Mr. Sweers' statement to her, and tried to arrange a meeting to further discuss the
truth of the statement. 	Mr. Featherstone related his dissatisfaction with CSEA to
two fellow custodians who were eligible to vote and to various other employees who
were not eligible.
At approximately 4:00 p.m. Mr. 	Sweers adjourned the meeting because other
people were waiting to use the Board Room and because 	he had other
appointments to keep. 	Mr. Fizz testified that at that time he still had questions
in his mind regarding salary and fringe benefits, "and under that there was
vacations and so forth." 	Before Sweers left, some employees
asked him questions regarding what organization, if any, would represent the
people in the meeting. 	Others asked questions regarding whether and when they
would receive raises in wages, or additional fringe benefits. 	Mr. Sweers, on his
way out of the meeting, referred the questions to William Meyers, 	supervisor of
operations, who left town and was not available to speak with the employees before
the election. 	Sweers referred them to Mr. Meyers because Sweers felt that Meyers,
their immediate supervisor, 	"could better hear their concerns," on substantive
questions of wages and fringe benefits.
- 8 -

B. 	The Eligibility List
The evidence is undisputed that the District timely submitted a list of
employees in the operations support unit to the EERB, 	CSEA and SEIU at least
ten working days prior to the election, pursuant to EERB Rule 33530. 	It is
equally without dispute that the list as originally filed and served on the
organizations was incomplete. 	The District supplemented the list by letters
dated March 23 and March 25, 	1977. 	The March 23 letter bears the name of one
voter and that of March 25 the names of 12 voters, 	and a notation "BY HAND."
No evidence indicates when the organizations received these letters. 	Mr. 	Sweers
testified without contradiction, however, that he sent copies of the letters to
the organizations, 	and that these omissions were the result of inadvertent
clerical error. 	A letter correctly addressed and properly mailed is presumed to
have been received. 	Evidence Code Section 641. 	CSEA having failed to put on
evidence that it did not timely receive the letters, 	the hearing officer concludes
that they were timely received.
Mr. 	Sweers further testified that representatives of both CSEA and SEIU
contacted him to bring his attention to omissions on the list, although he could
not recall which names or classifications had been brought to his attention by
which organizations. 	This testimony is also uncontradicted and undisputed.
C. 	Statistical Evidence
CSEA presented evidence that the average voter turnout in 21 blue collar unit
elections in which both CSEA and SEIU appeared on the ballot was 83.8 percent,
whereas 71.5 percent of the eligible employees voted in the Santa Monica election.
The hearing officer finds this to be true, but, as discussed below, there is no
evidence, nor can one reasonably infer, 	that this lower-than-average turnout resulted
from any of the conduct complained of.
-9-

CONCLUSIONS OF LAW
EERB Rule 33590 sets forth the only grounds upon which a hearing officer
may find that an election should be set aside. 	Those grounds are:
(a) 	The conduct complained of is tantamount to
an unfair practice as defined in Article 4
of the Act; or
(b) 	Serious irregularity in the conduct of the
election.
The Board itself interpreted Rule 33590 in Tamalpais Union High School
District, EERB Decision No. 1, September 20, 1976. 	The Board held:
In adopting Rule 30076 	[presently Rule 33590] 	it
was the intent of the EERB to overturn represen-
tation-election results only when conduct affecting
the results of the election amounts to an unlawful
practice under Article 4 of the Rodda Act or con-
stitutes "serious irregularity in the conduct of
the election." 	[Emphasis added.]
The Board further ruled in Tamalpais that:
In the absence of evidence that voters were dis-
couraged from voting, we would sustain the Associa-
tion's poll-monitoring and 	television-coverage
objections only on finding that those events had
the natural and probable effect of discouraging
voter participation in the representation election.
Thus, before the EERB may overturn a representation election, 	the objecting
party must prove the following elements:
Effect
(1) Conduct 	occurred which affected 	the 	results 	of 	the
election: 	This element may be established by
(a) 	evidence showing that voters were actually dis-
couraged from voting, or (b) 	evidence establishing
that the conduct complained of had "the natural
and probable effect of discouraging voter partici-
pation" in the representation election; and
Cause
(2) 	That the conduct complained of amounts to an unlawful
practice under Article 4 of the EERA or constitutes
"serious irregularity in the conduct of the election."
It is apparent therefore that conduct which affected the results of an
election is insufficient to overturn an election unless it also amounts to an
unlawful practice or constitutes serious irregularity in the conduct of the election.
Conversely, 	conduct which amounts to an unlawful practice or constitutes serious
-10-

irregularity in the conduct of the election is insufficient to overturn an
election unless it also affected the results of the election.
We shall now examine the facts of the present case with the above requirements
in mind.
With regard to sub-section (a) of Section 33590, CSEA, 	in its posthearing
brief, 	postulates a right which it has in its capacity as an employee organization
to carry on a representation election campaign without "unwarranted interference."
This right arises, CSEA contends, by implication from 	Section 3541.3(c) 	of the EERA,4
5
since the EERB has the authority to conduct elections, and from Section 3543.5(d)
because "[o]ne of the functions of an employee organization is to conduct representation
elections." 	These rights exist, says CSEA, in addition to the rights of employees
under Sections 3543 and 3543.5(a) 	to choose representatives without interference,
restriction or coercion.
This distinction assumes greater proportions in light of San Dieguito
Faculty Association v. 	San Dieguito Union High School District, 	EERB
Decision No. 	22, September 2, 1977. 	That decision established that the
charging party in an unfair practice proceeding must show the respondent's
unlawful motive in interfering with employee rights or at least that the
respondent's conduct has the natural and probable consequence of so
interfering. 	CSEA thus relies on sub-sections of Section 3543.5 which at least
4Section 	3541.3(c) 	gives the EERB the power and/or duty: 	"[T]o arrange for
and supervise representation elections, which shall be carried out by secret ballot
elections, and certify the results of the elections."
5Section 3543.5(d) makes it an unfair practice to ". 	. 	. interfere with the .
administration of any employee organization. 	. 	."
-11-

arguably require no showing of motive.
It is also contended that the facts of this case represent a serious
irregularity in the conduct of the election, 	in violation of sub-section (b)
of Rule 33590.
CSEA's theories are, to say the least, novel and untested. 	For reasons
which appear below, 	it will be unnecessary to rule on their legal sufficiency.
Sweers' Statement about CSEA
CSEA's objection regarding Sweers' 	statement about CSEA must fail for lack
of evidence by CSEA that Sweers' 	statement amounts to an unlawful practice or
constitutes serious irregularity in the conduct of the election.
The controversy regarding this statement was primarily factual. 	As indicated
above, 	the hearing officer does not find that Mr. 	Sweers laid the sole responsibility
for any exclusions from the negotiation unit at CSEA's doorstep, 	as CSEA alleged.
An essentially accurate statement, made to an assembly composed primarily of
management employees, regarding the history of relations between an employee and
employee organizations does not, in the opinion of the hearing officer, amount to
an "unwarranted interference" with an election, although it is unfortunate that
some of those employees unreasonably misinterpreted the statement. 	With regard to
Sub-section (b) 	it is concluded that such a statement to such an audience is not an
"irregularity" at all. 	Certainly, CSEA presented no evidence, and cited no authority
to show that this sort of address does not occur with regularity before elections.
Further, one should note that Sweers made his address a full week before the
election. 	The hearing officer, 	therefore, concludes that the consideration of
timing can aid in deciding whether a given "irregularity" is serious.
Theodore Fizz visited Etta Alexander of CSEA the day after the meeting with
Mr. 	Sweers and gave her his interpretation of what Sweers had said. 	CSEA was,
therefore, on notice of Sweers' 	statement six days before the election. 	There was
-12-

sufficient time to visit the employees who had attended the meeting, disabuse
them of any misconceptions they might have had and thus halt the spread of any
ill feelings against CSEA. 	It is, therefore, concluded that even if Sweers'
statement amounted to an irregularity in the conduct of the election, 	that
irregularity was not serious enough to warrant setting aside the election.
Sweers' Statement to Loch
CSEA's objections regarding Sweers' statement to Loch must fail for lack
of CSEA showing that the conduct complained of affected the results of the
election. 	A statement such as that which Mr. 	Sweers made regarding the eligibility to
vote of a group of employees presents a more serious problem, since it tends to
negate the EERB's process of informing voters of their eligibility. 	However, the
record shows that only five intermediate head gardeners attended the meeting. 	Of
those five, one (Rodriguez) voted and one (Loch) did not; no evidence appears as to
the other three. 	Even assuming that these three, and Loch, had wanted to vote
for CSEA, and did not vote because of Sweers' statement, Sweers only affected four
voters by his conduct. 	CSEA received 86 votes in the election. 	An additional four
votes would give CSEA a total of 90—not enough for a majority or to force a run-off.
CSEA's contention with regard to the statement of Mr. 	Sweers must thus fail
for lack of a showing of a cognizable effect.
The Eligibility List
CSEA's objections regarding the eligibility list must fail for lack of CSEA's
showing that any omission therefrom affected the results of the election. 	CSEA
attacks the omissions from, and later additions to, the eligibility list only under
sub-section (b) of Rule 33590. 	Rule 33530, providing for filing with the EERB
and service on the parties of such a 	list, 	is similar to the rule adopted by the
NLRB in Excelsior Underwear, Inc., 156 NLRB 1236, 1246, 61 LRRM 1217, 	(1966). 	The NLRB
explained that it sought, by establishing the Excelsior rule, to give voters
access to arguments in favor of union representation by giving employee organizations
-13-

access to the voters. 	The hearing officer concludes that the EERB had a similar
motive in adopting Rule 	33530. 	Since CSEA presented no evidence that the late
receipt of 13 names in fact hampered its ability to contact those voters, 6 the
failure of the District to provide a complete list ten working days before the
election must be examined in the light of the natural and probable effect of the
late receipt on its ability to contact voters.
At the very least, CSEA had a day and a half to contact the omitted voters.
CSEA was also on actual notice even before Sweers prepared the additions to the list
that the District had omitted some names 	(see footnote 5 below). 	The hearing
officer cannot infer from this state of events sufficient prejudice to CSEA's
ability to communicate with voters to constitute a serious irregularity in the
conduct of the election.
The Allegations regarding Kenneth Ritter
CSEA presented no evidence whatsoever to substantiate the objection
that junior head custodian Ritter heard Sweers' 	statement and became
disenchanted with CSEA. 	The allegation is therefore dismissed.
6On the contrary, 	it appears that CSEA knew of at least some of the eligible
voters excluded from the list before receipt of the corrections, since Mr. 	Sweers
testified that a representative of CSEA telephoned him and told him the list was
defective.
-14-

PROPOSED ORDER
It 	is 	the Proposed Decision:
1 . 	That 	the objections 	to 	the conduct of 	the election be DISMISSED,
and
2. 	That SEIU, 	Local 	660, 	be certified as the exclusive representative
of 	the unit 	described 	in the consent 	election agreement.
The parties have 	seven 	(7) 	calendar days 	from the receipt of 	this
Proposed Decision in which to 	file exceptions 	in accordance with
EERB Regulation 33380 	(8 California Administrative Code 33380) . 	If no party-
files 	timely exceptions, 	this 	Proposed Decision will become a 	final 	order on
October 24, 	1977 and a 	Notice of Decision will 	issue 	from the Board.
Dated: 	October 11, 	1977 .
- 15 -
Kenneth A . 	Perea
Hearing 	Officer