Hayward Unified School District (Weld) (PERB 0172E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
GAIL
	WELD,
Charging
	Party,
v.
HAYWARD
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
Case
	No.
	SF-CE-189
PERB	
Decision No.	
172
August
	24, 	1981
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_____________ )
A22earances: 	Dr.
	Thomas
	C.
	Agin
	for 	Gail
	Weld;
Alison
	MacKenzie,
	Attorney 	(Paterson	
&
Taggart) 	for
	Hayward
Unified
	School
	District.
Before:
	Gluck,
	Chairperson;
	Moore 	and
	Jaeger,
	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter	
PERB	
or 	Board) 	on
	exceptions
	to 	the 	attached 	hearing
officer's
	proposed
	decision 	filed
	by
	Charging
	Party Gail
	Weld
(hereafter
	Weld}.
	The
	hearing
	officer
	found
	that
	Weld,
	as
	a
managerial
	employee, 	lacked 	standing
	to
	file
	a
	charge
	and
	thus
dismissed 	the 	complaint.
	We
	affirm 	the
	result 	arrived
	at	
by
the 	hearing
	officer,
	and
	adopt
	his 	decision 	to 	the 	extent
consistent
	with 	the 	discussion
	low.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GAIL WELD,
Charging Party, 	Case No. SF-CE-189
v . 	PERB Decision No. 172
HAYWARD UNIFIED SCHOOL DISTRICT, 	August 24, 1981
Respondent.
Appearances: Dr. Thomas C. Agin for Gail Weld;
Alison Mackenzie, Attorney (Paterson & Taggart) for Hayward
Unified School District.
Before: Gluck, Chairperson; Moore and Jaeger, Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions to the attached hearing
officer's proposed decision filed by Charging Party Gail Weld
(hereafter Weld) . The hearing officer found that Weld, as a
managerial employee, lacked standing to file a charge and thus
dismissed the complaint. We affirm the result arrived at by
the hearing officer, and adopt his decision to the extent
consistent with the discussion below.

FACTS
The
	hearing
	officer's
	findings
	of
	fact
	are
	free 	of
prejudicial
	error
	and
	are
	adopted 	as
	the 	findings
	of
	the
Board.
1
DISCUSSION
Based on
	the
	parties'
	position 	that
	Weld 	was 	a
	managerial
employee,
	and
	sections
	3541.S(a)
	and
	3540.l(j)
	of 	the
Educational
Employment
	Relations
	Act
	(hereafter
	EERA)2,
	the
hearing
	officer
	found
	that
	Weld
	lacked 	standing
	to
	file
	an
unfair
	practice
	charge.
	The
	hearing
	officer 	correctly
	held
1
we
	note
	that
	the 	hearing
	officer
	found
	that
	the
	partiesstipulated 	that
	Weld 	and
	other 	psychologists
	were
	managerial.
We
	are
	unaware
	of
	a
	formal
	stipulation
	to
	that 	effect
	in
	the
record.
	However,
	as 	noted,
	infra,
	the
	parties
	did
	not
	dispute
Weld's
	alleged
	managerial
	status
	and
	litigated
	the 	case 	in
	a
manner
	consistent
	with
	that position.
	We
	thus 	find 	the
	hearing
officer's
	reference 	to
	a 	II
stipulation"
	to
	be
	nonprejudicial
error.
2The
	EERA
	is
	codified 	at
	Government 	Code
	section
	3540
	et
seq. 	Unless
	otherwise
	specified,
	all
	statutory
	references 	areto 	the
	Government 	Code.
Section
	3541.S(a)
	provides, 	in 	pertinent 	part:
Any
	employee, 	employee
	organization,
	or
employer
	shall
	have
	the
	right
	to
	file
	an
unfair 	practice
	charge
	....
Section 	3540.l(j) 	provides:
11
Public 	school
	employee" 	or 	"employee" 	means
any
	person
	employed 	by 	any	
public 	schoolemployer
	except 	persons 	elected
	by
	popular
vote, 	persons 	appointed
	by
	the
	Governor
	of
this 	state,	
management	
employees, 	and
confidential
	employees.
2
FACTS
The hearing officer's findings of fact are free of
prejudicial error and are adopted as the findings of the
Board. 1
DISCUSS ION
Based on the parties' position that Weld was a managerial
employee, and sections 3541.5 (a) and 3540.1(j) of the
Educational Employment Relations Act (hereafter EERA) 2, the
hearing officer found that Weld lacked standing to file an
unfair practice charge. 	The hearing officer correctly held
We note that the hearing officer found that the parties
stipulated that Weld and other psychologists were managerial.
We are unaware of a formal stipulation to that effect in the
record. However, as noted, infra, the parties did not dispute
Weld's alleged managerial status and litigated the case in a
manner consistent with that position. We thus find the hearing
officer's reference to a "stipulation" to be nonprejudicial
error .
2The EERA is codified at Government Code section 3540 et
seq. Unless otherwise specified, all statutory references are
to the Government Code.
Section 3541.5 (a) provides, in pertinent part:
Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge
Section 3540.1(j) provides:
"Public school employee" or "employee" means
any person employed by any public school
employer except persons elected by popular
vote, persons appointed by the Governor of
this state, management employees, and
confidential employees.
2

that,
	as
	a
	matter 	of
	law, 	the
	statute
	proscribes
	managerial
persons
	from
	filing
	charges.
	As
	noted
	by
	the 	hearing
	officer,
managerial
	status
	would 	remove 	Weld 	from
	the
	statutorily
defined
	class
	"employee".
	Based
	on
	the
	parties'
	position
	that
Weld 	was
	managerial,
	he
	thus
	concluded
	that
	Weld
	lacked
standing 	to
	file
	the
	instant
	charge.
It
	is
	unnecessary
	to
	determine
	whether
	Weld
	was,
	in
	fact,
a
	manager, 	because
	we
	would
	dismiss
	this
	case
	even
	if
	she
	were
not.
	As 	a
	non-managerial
	person,
	Weld 	would
	not
	be
	within 	the
class
	of
	persons
	conditionally
	eligible
	to 	receive 	the
	life
insurance
	benefit
	at
	issue 	herein.
	The
	District
	would
	thus 	not
have
	offered
	her 	the
	life
	insurance
	benefit
	whether 	or 	not	
she
joined 	the 	Association 	of 	California
	Administ.rators.
	It
follows
	that
	she
	would
	not
	even
	arguably
	have 	been
	unduly
influenced 	to 	join 	that 	organization,
	and
	hence 	she
	would
	not
have	
standing 	to
	file
	the
	instant 	unfair
	if
	she
	were 	found
	to
be
	non-managerial.
For
	all
	of 	the
	above
	reasons,
	we
	affirm
	the
	dismissal 	of
the
	instant 	unfair 	practice
	charge.
ORDER
Upon	
the 	foregoing
	facts,	
conclusions 	of
	law,
	and
	the
entire	
record	
in
	this 	case,
	the 	Public	
Employment	
Relations
Board
	ORDERS
	that:
3
that, as a matter of law, the statute proscribes managerial
persons from filing charges. As noted by the hearing officer,
managerial status would remove Weld from the statutorily
defined class "employee". Based on the parties' position that
Weld was managerial, he thus concluded that Weld lacked
standing to file the instant charge.
It is unnecessary to determine whether Weld was, in fact,
a manager , because we would dismiss this case even if she were
not. As a non-managerial person, Weld would not be within the
class of persons conditionally eligible to receive the life
insurance benefit at issue herein. The District would thus not
have offered her the life insurance benefit whether or not she
joined the Association of California Administrators. 	It
follows that she would not even arguably have been unduly
influenced to join that organization, and hence she would not
have standing to file the instant unfair if she were found to
be non-managerial.
For all of the above reasons, we affirm the dismissal of
the instant unfair practice charge.
ORDER
Upon the foregoing facts, conclusions of law, and the
entire record in this case, the Public Employment Relations
Board ORDERS that:
3

The
	instant
	unfair
	practice
	charge,
	Case
	No.
	SF-CE-189,
	is
DISMISSED
	in
	its
	entirety.
Barbara
	D.
	Moore,
	Member 	John'J.ljaeger-~ Member
Harry 	Gluck, 	Chairman,
	dissenting:
During
	the
	original
	PERB
	unit
	determination 	hearing
conducted 	in
	1977
	the
	District
	contended
	that 	psychologists
	are
managerial
	employees.
1	
This
	position
	was
	contested
	by
	an
intervening
	employee
	organization
	although 	not
	by
	the
	present
exclusive
	representative.
	As
	a
	consequence,
	the
	PERB
	regional
director
	ordered
	an
	election 	prior
	to 	the
	resolution
	of
	the
psychologists'
	status
	and,
	thus, 	to 	the
	final
	determination 	of
an
	appropriate
	unit.
	The
	psychologists
	were
	permitted
	to
	vote
challenged
	ballots.
	Because
	they
	eventually
	proved
	not
	to
	be
"determinative" 	of 	the
	election
	outcome,
	the 	challenges
	were
1
EERA
	section
	3543.4
	reads, 	in 	part:
No
	person 	serving
	in
	a 	management
position
	...
	shall
	be
	represented
	by 	an
exclusive 	representative
....
4
The instant unfair practice charge, Case No. SF-CE-189, is
DISMISSED in its entirety.
Barbara D. Moore, Member 	John Jaeger, Member
Harry Gluck, Chairman, dissenting:
During the original PERB unit determination hearing
conducted in 1977 the District contended that psychologists are
managerial employees. This position was contested by an
intervening employee organization although not by the present
exclusive representative. As a consequence, the PERB regional
director ordered an election prior to the resolution of the
psychologists' status and, thus, to the final determination of
an appropriate unit. The psychologists were permitted to vote
challenged ballots. Because they eventually proved not to be
"determinative" of the election outcome, the challenges were
JEERA section 3543.4 reads, in part:
No person serving in a management
position . . 	. shall be represented by an
exclusive representative. . .

never
	resolved.2	
Thus,
	it
	has 	never
	been
	decided
	whether
psychologists
	are
	in
	the
	unit
	or 	excluded
	therefrom.3
Whether
	an
	employee
	is 	eligible
	to
	participate
	in
collective
	bargaining
	is
	a
	question
	of
	law
	to
	be
	answered
according
	to
	the
	facts
	produced.4	
The
	hearing
	officer's
acceptance
	of
	the
	parties' 	joint
	position
	(he
	referred
	to
	it
	as
a
	"stipulation") 	that
	Weld
	is
	a
	manager,
	ignored
	Centinela
Y.~lt§:.y_Q.~i~!}_I!i~
School D.ist:rict
	(8/7 /78)
	PERB
	Decision
No.
	62,
	which
	made
	it
	clear 	that 	stipulations
	of
	law
unsupported
	by
	facts
	would
	not
	be
	accepted
	by
	this
Board.
Particularly,
	there
	was
	little
	justification
	for 	accepting
	this
so-called
	stipulation
	since
	PERB
	had
	already
	established 	the
precedent
	of
	placing
	psychologists
	in
	a
	representation 	unit.5
2challenged
	ballots
	are
	designed
	to 	resolve 	the
eligibility
	of
	individual
	employees
	to 	vote
	in
	an
	establishedunit,
	not
	to 	determine 	the 	composition 	of
	the 	unit
	itself. 	It
is
	anomalous
	to
	conduct
	an
	election
	in
	a
	unit
	which 	has
	not 	yet
been
	determined.
	See 	Board
	rule	
33460 	which
	permits 	consent
election 	in 	units
	mutually 	agreed
	upon 	as
	appropriate
	and
	rule
33470
	which
	provides 	for 	voter
	eligibility
	in 	units
	determined
to
	be
	appropriate
	by
	the 	Board.
	The
	PERB
	rules
	and
	regulationsare
	found
	at 	California
Administrative
	Code
	section
	31000
	et
seq. 
3The	
record
	indicates 	that 	negotiations	
have	
never 	been
conducted
	on
	behalf
	of 	the 	psychologists.
4section
	3540.1 (g)
	defines
	"management 	employee."
5Placer
	Union H ig!:!__SchoQ!__Qi§.~!_iC!: 	(9/12/77} 	EERB 	.
Decision No. 	25. 	The 	onl"y"evidence"" 	of 	the 	psychologists'managerial
	status 	offered
	by
	the
	District 	in 	the 	present 	case
consisted 	of 	general 	statements
	and
	legal 	conclusions 	as
	to
their 	responsibility 	for 	directing 	the 	child 	assessment 	team
and
	their 	involvement 	in 	the
	develo}?!Ilent 	of 	related 	policy.The 	hearing 	officer 	relied 	solely
	on 	the 	"stipulation".
5
never resolved.2 Thus, it has never been decided whether
psychologists are in the unit or excluded therefrom. 3
Whether an employee is eligible to participate in
collective bargaining is a question of law to be answered
according to the facts produced. The hearing officer's
acceptance of the parties' joint position (he referred to it as
a "stipulation" ) that Weld is a manager, ignored Centinela
Valley Union High School District (8/7/78) PERB Decision
No. 62, which made it clear that stipulations of law
unsupported by facts would not be accepted by this Board.
Particularly, there was little justification for accepting this
so-called stipulation since PERB had already established the
precedent of placing psychologists in a representation unit. 5
2Challenged ballots are designed to resolve the
eligibility of individual employees to vote in an established
unit, not to determine the composition of the unit itself. 	It
is anomalous to conduct an election in a unit which has not yet
been determined . See Board rule 33460 which permits consent
election in units mutually agreed upon as appropriate and rule
33470 which provides for voter eligibility in units determined
to be appropriate by the Board. The PERB rules and regulations
are found at California Administrative Code section 31000 et
seq.
3The record indicates that negotiations have never been
conducted on behalf of the psychologists.
4Section 3540.1 (g) defines "management employee."
5Placer Union High School District (9/12/77) EERB
Decision No. 25. The only "evidence" of the psychologists'
managerial status offered by the District in the present case
consisted of general statements and legal conclusions as to
their responsibility for directing the child assessment team
and their involvement in the development of related policy.
The hearing officer relied solely on the "stipulation".
5

It 	may 	be 	true 	that 	Weld 	would 	not 	be 	successful 	in 	this
matter 	irrespective 	of 	a 	final 	disposition 	of 	her 	status.
However, 	the 	majority 	overlooks 	the 	fact 	that 	she 	may 	have
"agreed" 	to 	her 	managerial 	status 	believing 	that 	she 	had 	no
choice--that 	her 	status 	had 	been 	determined 	by 	the 	employer 	and
the 	ensuing 	years 	of 	silence 	as 	to 	the 	challenged 	ballots. 	The
majority, 	which 	now 	ignores 	this 	Board's 	invariable 	placement
of 	psychologists 	in 	units 	since 	1977, 6 cannot 	know 	Ms. 	Weld's
true 	preference 	and 	should 	not 	assume 	that 	she 	would 	decline 	to
enroll 	as 	a 	member 	of 	the 	exclusive 	representative 	in 	order 	to
accept 	the 	benefits 	of 	its 	services 	and 	membership 	programs
were 	she 	to 	learn 	that 	she 	is 	not 	a 	managerial 	employee.
By 	avoiding 	the 	"standing" 	issue 	raised 	here, 	the 	majority
closes 	its 	eyes 	to 	an 	administrative 	oversight, 	ignores
precedential 	holdings 	and 	usurps 	Ms. 	Weld 1 s 	ultimate 	right 	to
make 	an 	informed 	decision 	as 	to 	her 	future 	course 	of 	action.
Because 	the 	matter 	of 	the 	unresolved 	challenged 	ballots 	is
beyond 	the 	reach 	of 	this 	case, 	I 	would 	remand 	to 	determine
Ms. 	Weld's 	status 	based 	on 	her 	individual 	duties 	and
responsibilities.
Harry Gluck, Chairman
6E.g., 	Arcadia 	Unified 	School 	District 	(5/17/79) 	PERE
Decision 	No. 	93; 	Pleasanton 	Joint 	School 	District/Amador 	Valley
Joint 	Union 	High 	School 	District 	(6/25/81) 	PERE 	Decision
No. 	169 .
r,, 	• "
	Lnairman
6
It may be true that Weld would not be successful in this
matter irrespective of a final disposition of her status.
However, the majority overlooks the fact that she may have
" agreed" to her managerial status believing that she had no
choice--that her status had been determined by the employer and
the ensuing years of silence as to the challenged ballots. 	The
majority, which now ignores this Board's invariable placement
of psychologists in units since 1977, cannot know Ms. Weld's
true preference and should not assume that she would decline to
enroll as a member of the exclusive representative in order to
accept the benefits of its services and membership programs
were she to learn that she is not a managerial employee.
By avoiding the "standing" issue raised here, the majority
closes its eyes to an administrative oversight, ignores
precedential holdings and usurps Ms. Weld's ultimate right to
make an informed decision as to her future course of action.
Because the matter of the unresolved challenged ballots is
beyond the reach of this case, I would remand to determine
Ms. Weld's status based on her individual duties and
6E. g., Arcadia Unified School District (5/17/79) PERB
Decision No. 93; Pleasanton Joint School District/Amador Valley
Joint Union High School District (6/25/81) PERB Decision
No. 169 .
6

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GAIL 	WELD,
Charging 	Party,
V
HAYWARD 	UNIFIED 	SCHOOL
DISTRICT,
Employer.
Unfair 	Practice
Case 	No. 	SF-CE-189
PROPOSED 	DECISION
(12/12/78)
)
)
)
)
)
)
)
)
)
)
)
________________ )
Appearances: 	Dr. 	Thomas 	Agin, 	Director, 	California 	Pupil
Services 	Labor 	Relations, 	for 	Charging 	Party; 	Alison 	MacKenzie,
Attorney 	(Paterson 	and 	Taggart) 	for 	Hayward 	Unified 	School
District.
Before 	Michael 	J. 	Tensing, 	Hearing 	Officer.
PROCEDURAL 	HISTORY
On 	May 	11, 	1978, 	Gail 	Weld, 	the 	charging 	party, 	filed 	an
unfair 	practice 	charge 	with 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB 	or 	the 	Board) 	alleging 	that 	the
respondent, 	Hayward 	Unified 	School 	District 	(hereafter
District) 	violated 	Government 	Code 	section 	3543.S(d) 	by
offering 	a 	fringe 	benefit 	to 	designated management 	employees
who 	became 	members 	of 	the 	state 	Association 	of 	California
School Administrators 	(hereafter 	Association), 	thereby
encouraging 	employees 	to 	join 	that 	organization. 	An 	informal
conference 	was 	held 	on 	June 	2, 	1978. 	A formal 	hearing 	was
conducted 	on August 	22, 	1978.
POSITIONS 	OF 	PARTIES
The 	charging 	party 	contends 	that 	since 	the 	District 	grants
1
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
GAIL WELD,
Charging Party,
Unfair Practice
Case No. SF-CE-189
HAYWARD UNIFIED SCHOOL
DISTRICT, 	PROPOSED DECISION
Employer . 	(12/12/78)
Appearances: Dr. Thomas Agin, Director, California Pupil
Services Labor Relations, for Charging Party; Alison Mackenzie,
Attorney (Paterson and Taggart) for Hayward Unified School
District.
Before Michael J. Tonsing, Hearing Officer.
PROCEDURAL HISTORY
On May 11, 1978, Gail Weld, the charging party, filed an
unfair practice charge with the Public Employment Relations
Board (hereafter PERB or the Board) alleging that the
respondent, Hayward Unified School District (hereafter
District) violated Government Code section 3543.5 (d) by
offering a fringe benefit to designated management employees
who became members of the state Association of California
School Administrators (hereafter Association) , thereby
encouraging employees to join that organization. An informal
conference was held on June 2, 1978. A formal hearing was
conducted on August 22, 1978.
POSITIONS OF PARTIES
The charging party contends that since the District grants

a
	life
	insurance
	policy
	to
	management
	employees
	who
	are
	members
of
	the 	Association
	while
	refusing 	to
	provide 	the
	same
	coverage
to
	management
	employees
	who
	are
	not
	members,
	the
	District
	is
violating 	section 	3543.5(d)lin
	that
	its
	action
	encourages
employees
	to 	join
	a
	particular
	employee
	organization.
The
	charging
	party 	further
	asserts 	that
	the
	Association
	is
an
	employee
	organization
	within 	the
	meaning
	of
	section
3540.l(d) .2	
The
	charging
	party 	also
	contends
	that
	she 	has
the
	right
	to
	file
	an
	unfair
	practice
	charge
	even 	though
	she
	is
designated 	as
	a
	management
	employee	
by	
the
	District,
	a
designation
	she 	does
	not
	challenge.
	Finally,
	she 	contends
	that
the 	charge
	was
	timely
	filed,
	since
	it
	was
	filed
	within 	six
months
	of 	the 	date 	of 	the
	District's
	formal
	and
	final 	refusal
to
	provide
	her 	with
	a
	comparable
	benefit.
lAll 	references 	are
	to 	section
	3540
	et
	seq. 	of
	the
	Government
Code.
	Section
	3543.S(d)
	states 	that
	it
	s6all
	be
	unlawful
	for
	a
public
	school
	employer
	to:
Dominate
	or
	interfere
	with 	the 	formation 	or
administration 	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.
2section 	3540.l(d) 	states
	in
	pertinent 	part:
'Employee	
organization'
	means 	any	
organization
which
	includes
	employees
	of
	a
	public 	schoolemployer 	and 	which 	has 	as 	one
	of
	its
	primary
purposes 	representing
	such 	employees
	in 	theirrelations
	with 	that 	public 	school 	employer.
'Employee
	organization' 	shall 	also 	include	
any
person 	such 	an
	organization 	authorizes 	to 	act
	on
its
	behalf.
2
a life insurance policy to management employees who are members
of the Association while refusing to provide the same coverage
to management employees who are not members, the District is
violating section 3543.5 (d) lin that its action encourages
employees to join a particular employee organization.
The charging party further asserts that the Association is
an employee organization within the meaning of section
3540.1 (d) . 2 The charging party also contends that she has
the right to file an unfair practice charge even though she is
designated as a management employee by the District, a
designation she does not challenge. Finally, she contends that
the charge was timely filed, since it was filed within six
months of the date of the District's formal and final refusal
to provide her with a comparable benefit.
"All references are to section 3540 et seq. of the Government
Code . 	Section 3543.5 (d) states that it shall be unlawful for a
public school employer to:
Dominate or interfere with the formation or
administration 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.
2section 3540.1(d) states in pertinent part:
'Employee organization' means any organization
which includes employees of a public school
employer and which has as one of its primary
purposes representing such employees in their
relations with that public school employer.
'Employee organization' shall also include any
person such an organization authorizes to act on
its behalf.
N

The
	District
	contends
	that
	the 	Association
	does
	not
	meet
the
	definition
	of
	an
	employee
	organization
	and
	that
	there
	is
therefore
	no
	basis
	for 	finding
	a
	section
	3543.S(d)
	violation.
It
	further
	argues
	that
	a 	management
	employee
	does
	not
	have
	the
right
	to
	file
	an
	unfair
	practice
	charge
	under
	the 	Educational
Employment
	Relations
	Act
	(hereafter
	EERA
	or 	the
	Act)
.3
Finally,
	the
	District
	contends
	that
	if
	an
	unfair
	practice
took
	place,
	it
	occurred
	no
	later
	than
	when
	the
	agreement
providing 	the 	insurance
	benefit
	went
	into
	effect,
	admittedly
more
	than
	six
	months
	prior
	to
	the
	filing
	of
	the 	charge.
	Thus,
the
	District
	argues, 	the
	charge
	was
	not
	timely
	filed.4
ISSUES
1.
	Does 	a 	management
	employee 	have
	standing
	to
	file
	an
	unfair
practice
	charge
	on
	her
	own
	behalf
	under
	the
	Act?
2.
	Was
	the 	charge
	timely
	filed?
3.
	Does
	the 	Association
	fulfill
	the
	definition
	of
	an 	employee
organization
	so 	as
	to 	bring 	the 	charge 	within 	section
3The
	EERA
	consists
	of
	Government 	Code
	section
	3540
	et
	seq.
4section
	3541.S(a)
	states:
Any
	employee, 	employee
	organization, 	or
	employer
shall
	have
	the
	right 	to
	file
	an
	unfair 	practice
charge, 	except 	that 	the
	board	
shall
	not	
do	
eitherof 	the
	following:
	1)
	issue
	a
	complaint 	in
respect 	of
	any
	charge 	based
	upon 	an
	alleged
unfair 	practice 	occurring
	more
	than
	six
	months
prior 	to	
the	
filing 	of 	the 	charge
•.•
3
The District contends that the Association does not meet
the definition of an employee organization and that there is
therefore no basis for finding a section 3543.5 (d) violation.
It further argues that a management employee does not have the
right to file an unfair practice charge under the Educational
Employment Relations Act (hereafter EERA or the Act) . 3
Finally, the District contends that if an unfair practice
took place, it occurred no later than when the agreement
providing the insurance benefit went into effect, admittedly
more than six months prior to the filing of the charge. Thus,
the District argues, the charge was not timely filed. 4
ISSUES
1 . 	Does a management employee have standing to file an unfair
practice charge on her own behalf under the Act?
2. 	Was the charge timely filed?
3. 	Does the Association fulfill the definition of an employee
organization so as to bring the charge within section
3The EERA consists of Government Code section 3540 et seq.
4section 3541.5(a) states:
Any employee, employee organization, or employer
shall have the right to file an unfair practice
charge, except that the board shall not do either
of the following: 1) issue a complaint in
respect of any charge based upon an alleged
unfair practice occurring more than six months
prior to the filing of the charge. . .
3

3543.S(d), 	prohibiting 	employer 	support 	of 	an 	employee
organization?
4. 	Does 	the 	requirement 	that 	an 	employee 	join 	an 	employee
organization 	in 	order 	to 	receive 	a 	fringe 	benefit 	violate
the 	prohibition 	against 	employer 	support 	of 	an 	employee
organization 	contained 	in 	section 	3543.S(d)?
FINDINGS 	OF 	FACT
Ms. 	Weld 	is 	employed 	by 	the 	District 	as 	a 	half-time
psychologist. 	The 	parties 	have 	stipulated 	that 	she 	is 	a
management 	employee. 	The 	District 	has 	designated 	all
psychologists 	in 	the 	District 	as 	management 	employees 	because
they 	have 	responsibility 	for 	developing 	policies 	for 	the
District's 	child 	assessment 	program 	and 	also 	for 	administering
the 	program. 	Psychologists 	are 	excluded 	from 	the 	certificated
negotiating 	unit 	that 	is 	represented 	by 	the 	Hayward 	Unified
Teachers 	Association, 	CTA/NEA. 	The 	District 	has 	employed 	9.5
psychologists 	to 	work 	in 	its 	37 	schools. 	In 	all 	there 	are
approximately 	2,000 	District 	employees, 	of 	whom 	approximately
109 	are 	designated 	as 	management.
According 	to 	the 	uncontradicted 	testimony 	of 	Mr. 	Paul
Goldman, 	who 	was 	president-elect 	of 	the 	local 	affiliate 	of 	the
statewide 	Association 	during 	the 	1976-77 	school 	year, 	the
designated 	management 	employees 	in 	the 	District 	desired 	to 	have
the 	terms 	of 	their 	compensation 	and 	working 	conditions 	reduced
to 	writing. 	The 	management 	employees 	held 	numerous 	committee
meetings 	during 	the 	1976-77 	school 	year 	to 	formulate 	a 	written
4
3543.5 (d) , prohibiting employer support of an employee
organization?
4. 	Does the requirement that an employee join an employee
organization in order to receive a fringe benefit violate
the prohibition against employer support of an employee
organization contained in section 3543.5 (d) ?
FINDINGS OF FACT
Ms. Weld is employed by the District as a half-time
psychologist. The parties have stipulated that she is a
management employee. The District has designated all
psychologists in the District as management employees because
they have responsibility for developing policies for the
District's child assessment program and also for administering
the program. Psychologists are excluded from the certificated
negotiating unit that is represented by the Hayward Unified
Teachers Association, CTA/NEA. The District has employed 9.5
psychologists to work in its 37 schools. In all there are
approximately 2,000 District employees, of whom approximately
109 are designated as management.
According to the uncontradicted testimony of Mr. Paul
Goldman, who was president-elect of the local affiliate of the
statewide Association during the 1976-77 school year, the
designated management employees in the District desired to have
the terms of their compensation and working conditions reduced
to writing. 	The management employees held numerous committee
meetings during the 1976-77 school year to formulate a written

agreement.
	It
	became
	apparent
	that
	the
	large 	size
	of
	the
management
	group
	made
	it
	more
	feasible 	to
	select
	a
representative
	to
	act
	on
	their
	behalf
	than
	to
	have
	many
individuals
	draft
	the
	agreement.
The
	Association
	was
	selected
	for
	this
	representative 	role
because
	90
	percent
	of 	the
	management
	employees
	already
	belonged
to
	it.
	A
board
	of
	directors
	of 	the
	local
	affiliate
	of 	the
statewide 	Association
	was
	subsequently
	elected
	and 	began
consulting
	with
	the
	District
	in
	May
	of
	1977
	regarding 	the
proposed 	agreement.
The
	District
	had
	in 	the
	past 	offered
	all 	its
	employees
	a
"cafeteria 	style"
	fringe 	benefits
	package.
	Each 	employee
	could
use
	a
	fixed
	dollar
	allotment 	to
	"buy"
	various 	fringe 	benefits
tailored
	to 	his/her 	specific
	needs.
	The
	allotment
	was
	the
	same
for
	all
	full-time
	District
	employees, 	whether
	or 	not 	they
	were
within 	negotiating
	units.
	Under
	this
	plan,
	every
	half-time
employee 	would 	be
	entitled
	to
	50
	percent 	of 	the
	full
	time
fringe 	benefit 	allotment.
	The
	customary
	fringe 	benefit
	package
was
	to
	be
	continued
	under 	terms
	of 	the 	proposed 	agreement, 	but
the
	District
	sought 	to 	provide
	an
	extra 	benefit 	to
	employees
designated 	as
	management 	by	
offering 	to
	purchase
	a
	$25,000
	life
insurance 	policy 	for 	each 	such 	employee.
	The
	District
	chose
	to
secure
	this 	life
	insurance 	through 	the 	Association 	because,
according 	to
	Mr.
	Jack 	Weinstein,
	assistant 	superintendent 	for
personnel 	for 	the
	District,
	it
	was
	the 	only organization 	that
had 	a 	group 	insurance 	program
	that 	could
	be
	provided 	by
	the
5
agreement. It became apparent that the large size of the
management group made it more feasible to select a
representative to act on their behalf than to have many
individuals draft the agreement.
The Association was selected for this representative role
because 90 percent of the management employees already belonged
to it. A board of directors of the local affiliate of the
statewide Association was subsequently elected and began
consulting with the District in May of 1977 regarding the
proposed agreement.
The District had in the past offered all its employees a
"cafeteria style" fringe benefits package. Each employee could
use a fixed dollar allotment to "buy" various fringe benefits
tailored to his/her specific needs. The allotment was the same
for all full-time District employees, whether or not they were
within negotiating units. Under this plan, every half-time
employee would be entitled to 50 percent of the full time
fringe benefit allotment. The customary fringe benefit package
was to be continued under terms of the proposed agreement, but
the District sought to provide an extra benefit to employees
designated as management by offering to purchase a $25,000 life
insurance policy for each such employee. The District chose to
secure this life insurance through the Association because,
according to Mr. Jack Weinstein, assistant superintendent for
personnel for the District, it was the only organization that
had a group insurance program that could be provided by the

District
	at
	the
	desired
	price.
	The
	proposed 	agreement
incorporated
	this
	choice
	and
	provided
	that
	the
	policy
	would
	be
available 	"to
	those
	members 	who
	qualify
	for 	the
	program."
	An
employee
	had
	to
	be 	a 	member
	of 	the
	state
	Association 	in 	order
to
	qualify.
The
	finished
	agreement
	was
	presented
	to
	the
	management
employees,
	including
	Ms.
	Weld,
	at
	a
	meeting
	on
	June 	22, 	1977.
The
	terms
	of
	the
	agreement
	were
	explained, 	including 	the
qualifying 	provision
	of
	the 	insurance
	policy.
The
	agreement
	became
	effective
	July 	1,
	1977.
	Formal
parties
	to
	the
	agreement
	were
	the
	superintendent 	of 	the
District
	and
	the
	Hayward
	chapter 	of
	the
	state
	Association.
	A
copy
	was
	furnished 	to
	the
	Board
	of
	Education 	of 	the
	District,
which
	did 	not 	take
	any
	action
	with
	respect 	to
	it.
	The
agreement
	recognized 	the
	local 	chapter's 	right
	to 	consult
	with
the
	District
	on 	any
	educational 	matter.
	It
	also
	provided
	that
agreements 	concerning
	salaries,
	working
	conditions,
	and
	fringe
benefits
	should
	be 	made
	with 	the
	local
	Association
	through
	the
conferring 	process.	
It	
specified
	the
	current
	understanding
	of
particular
	items 	in 	the
	above 	mentioned
	areas.
Ms. 	Weld
	subsequently
	was
	denied 	the	
life
	insurance
	benefit
because 	she
	was
	not
	a 	member
	of 	the
	state
	Association
	and
	thus
was
	not
	a
	"qualifying
	member" 	under 	terms 	of 	the 	agreement.
She
	filed
	the 	charge 	in
	this
	case
	on
	May
	11, 	1978,
	shortly
after
	formal 	and
	final 	notification 	that 	the
	District
	would
	not
provide 	her 	with
	a 	comparable
	benefit.
6
District at the desired price. The proposed agreement
incorporated this choice and provided that the policy would be
available "to those members who qualify for the program. " An
employee had to be a member of the state Association in order
to qualify.
The finished agreement was presented to the management
employees, including Ms. Weld, at a meeting on June 22, 1977.
The terms of the agreement were explained, including the
qualifying provision of the insurance policy.
The agreement became effective July 1, 1977. Formal
parties to the agreement were the superintendent of the
District and the Hayward chapter of the state Association. 	A
copy was furnished to the Board of Education of the District,
which did not take any action with respect to it. The
agreement recognized the local chapter's right to consult with
the District on any educational matter. It also provided that
agreements concerning salaries, working conditions, and fringe
benefits should be made with the local Association through the
conferring process. It specified the current understanding of
particular items in the above mentioned areas.
Ms. Weld subsequently was denied the life insurance benefit
because she was not a member of the state Association and thus
was not a "qualifying member" under terms of the agreement.
She filed the charge in this case on May 11, 1978, shortly
after formal and final notification that the District would not
provide her with a comparable benefit.

CONCLUSIONS
	OF
	LAW
Section
	3541.S(a)
	explicitly
	addresses
	the
	question 	of
	who
may
	file
	an
	unfair
	practice
	charge.
	It
	provides 	in
	pertinent
part:
Any
	employee,
	employee
	organization,
	or
	employer
	shall
have
	the
	right
	to
	file
	an
	unfair
	practice
	charge
.•..
The
	charging
	party
	is
	plainly
	not
	an
	employee
	organization
or
	an
	employer.
	She
	must
	therefore
	fit
	the
	statutory
definition
	of
	"employee"
	in 	order
	to
	file.
	The
	definition
	of
"employee"
	is
	found
	in
	section
	3540.l(j):
••.
any
	person
	employed
	by
	any
	public
	school
	employer
except 	persons
	elected
	by
	popular
	vote,
	persons
appointed
	by
	the
	Governor
	of
	this 	state,
	management
employees,
	and
	confidential
	employees.
	(Emphasis
added.)
It
	is
	stipulated 	that
	the 	charging
	party
	is
	a 	management
employee.
	As
	such, 	she
	is
	excluded
	from
	filing
	an
	unfair
practice
	charge
	if
	the
	definition
	of
	"employee"
	in
	section
3540.l(j) 	controls
	as
	to 	section
	3541.S(a).
	The
	charging
	party
argues,
	however,
	that
	the 	phrase
	"any 	employee"
	in
	section
3541.S(a) 	should
	be
	read
	in
	its
	broad,
	lay 	or
	literal
	meaning
rather
	than 	according
	to
	its
	statutorily
	defined
	meaning.
Such 	a
	broad 	reading
	would
	allow
	any 	employee,
	including 	rson
se
	ed	
by 	popular 	vote 	or 	appointed 	by 	the
	Governor
	to
	file
7
CONCLUSIONS OF LAW
Section 3541.5(a) explicitly addresses the question of who
may file an unfair practice charge. It provides in pertinent
part :
Any employee, employee organization, or employer shall
have the right to file an unfair practice charge. . .
The charging party is plainly not an employee organization
or an employer. She must therefore fit the statutory
definition of "employee" in order to file. The definition of
"employee" is found in section 3540.1 (j):
. . . any person employed by any public school employer
except persons elected by popular vote, persons
appointed by the Governor of this state, management
employees, and confidential employees. 	(Emphasis
added . )
It is stipulated that the charging party is a management
employee. 	As such, she is excluded from filing an unfair
practice charge if the definition of "employee" in section
3540.1 (j) controls as to section 3541.5(a) . The charging party
argues, however, that the phrase "any employee" in section
3541.5 (a) should be read in its broad, lay or literal meaning
rather than according to its statutorily defined meaning.
Such a broad reading would allow any employee, including person
selected by popular vote or appointed by the Governor to file

an
	unfair
	practice
	charge.5	
In
	support 	of
	this
	theory, 	the
charging
	party 	points
	out
	that
	if
	the
	word
	"employee" 	were
	to
be
	used
	in
	its
	statutory
	sense 	throughout 	the 	Act,
	it
	would
result
	in
	certain
	inconsistencies.6	
In
	view
	of
	the 	obvious
use
	of 	the
	lay
	definition
	of 	the
	word
	"employee"
	elsewhere, 	she
argues
	that
	a
	similarly
	broad
	definition
	should
	be
	used
	in
section
	3541.5
	concerning
	who may
	file.
It
	is
	apparent
	from 	a
	close
	reading 	of 	various
	sections 	of
the
	Act
	that
	the
	less
	inclusive
	definition
	of
	employee
	is
	not
always
	used.
	However,
	the
	fact 	that
	some
	inconsistent
	uses
exist
	does
	not
	in
	itself
	compel
	the
	use
	of
	the
	lay
	definition
in
	this 	particular
	instance.
	The
	crucial
	question
	is,
	which
	of
the
	alternative
	readings
	better 	effectuates
	the 	purposes 	of
	the
Act?
	"[C]ourts
	should 	enforce
	a
	statute
	in
	such
	a 	manner
	that
5The
	fundamental
	policy 	consideration motivating 	the
limitation
	of 	the
	right
	to 	protected
	activity
	by management
employees
	appears
	to
	be
	the
	belief 	that
	the
	dividing
	lineseparating
	management 	from
	"other
	employees"
	is
	the
	appropriateplace 	to
	focus 	the
	tensions 	regarding 	matters 	related 	to
	wages,
hours
	and
	other
	terms
	and
	conditions 	of
	employment
	over
	which
negotiation
	ought
	to
	take
	place.
	If
	this 	line
	were
obliterated,
	it
	would
	not
	be
	difficult
	to
	imagine
	a
	"solid
phalanx" 	of
	management 	and
	other
	employees
	arrayed
	against
	theremaining
	citizens
	of 	the
	community
	in 	the 	public 	sector 	or
against 	the 	stockholders 	in 	the
	ivate 	sector.
	See
	Justice
Douglas'
	dissenting 	opinion 	in
	Packard
	Co.
	v.
	Labor 	Board(1947) 	0 U.S. 	5 	[
	LRRM
	2397]
	cited 	in Bell
	Aerospace(1974) 	416
	u.s. 	267 	[85
	LRRM
	2945, 	2949].
	As
	the 	Bell
Aerospace
	court 	notes, 	the 	Packard
	decision
	was
	"reversed" 	by
subsequent
	legislative 	action.
6"The charging party cites sections 3540.1(g) , 3540.1(c), and
3543.4 as examples in which the lay definition of employee must
be applied in order to give meaning to the section.
The
	gi 	par
	cites 	sections 	3540.l
	) ,
	3540.1
3543.4 	as 	examples 	in
	which
	the 	lay 	defin 	ionbe
	applied 	in 	or
	r
	to 	give 	meani
	to 	the 	section.
8
an unfair practice charge. In support of this theory, the
charging party points out that if the word "employee" were to
be used in its statutory sense throughout the Act, it would
result in certain inconsistencies. In view of the obvious
use of the lay definition of the word "employee" elsewhere, she
argues that a similarly broad definition should be used in
section 3541.5 concerning who may file.
It is apparent from a close reading of various sections of
the Act that the less inclusive definition of employee is not
always used. However, the fact that some inconsistent uses
exist does not in itself compel the use of the lay definition
in this particular instance. The crucial question is, which of
the alternative readings better effectuates the purposes of the
Act? "[Cjourts should enforce a statute in such a manner that
5The fundamental policy consideration motivating the
limitation of the right to protected activity by management
employees appears to be the belief that the dividing line
separating management from "other employees" is the appropriate
place to focus the tensions regarding matters related to wages,
hours and other terms and conditions of employment over which
negotiation ought to take place. If this line were
obliterated, it would not be difficult to imagine a "solid
phalanx" of management and other employees arrayed against the
remaining citizens of the community in the public sector or
against the stockholders in the private sector. See Justice
Douglas' dissenting opinion in Packard Co. v. Labor Board
(1947) 330 U.S. 485 [19 LRRM 2397] cited in Bell Aerospace
(1974) 416 U. S. 267 [85 LRRM 2945, 2949]. As the Bell
Aerospace court notes, the Packard decision was "reversed" by
subsequent legislative action.

its 	overriding 	purpose 	will 	be 	achieved, 	even 	if 	the 	words 	used
leave 	room 	for 	a 	contrary 	interpretation." 	Haberman 	v. 	Finch
(2d 	Cir. 	1969) 	418 	F. 2d 	664, 	666. 	In 	interpreting 	statutes,
"the 	general 	purpose 	is 	a 	more 	important 	aid 	to 	the 	meaning
than 	any 	rule 	which 	grammar 	or 	formal 	logic 	may 	lay 	down."
U.S. 	v. 	Whitridge 	(1905) 	197 	U.S. 	135, 	143.
Section 	3540.1 	specifically 	defines 	the 	various 	terms
"[a]s 	used 	in 	this 	chapter .•.• " 	[Emphasis 	added.] 	For
example, 	the 	terms 	"confidential 	employee", 	"exclusive
representative", 	"management 	employee", 	and 	"meeting 	and
negotiating" 	are 	given 	express 	statutory 	definitions. 	The 	word
"employee" 	is 	defined 	in 	subsection 	3540.l(j}. 	The 	effect 	of
the 	language 	"[a]s 	used 	in 	this 	chapter" 	is 	to 	create 	a
presumed 	intent 	that 	the 	word 	"employee" 	will 	be 	used 	in 	its
defined 	sense 	throughout 	the 	Act.
The 	charging 	party 	appears 	to 	argue 	that 	if 	the 	Act 	is 	read
as 	a 	whole, 	so 	that 	the 	statutory 	definition 	of 	employee 	is
used 	when 	the 	word 	"employee" 	occurs; 	the 	result 	will 	sometimes
be 	absurd 	and 	sometimes 	unfair.
While 	it 	can 	be 	rather 	easily 	granted 	that 	the 	Legislature
would 	not 	intend 	a 	result 	which 	is 	absurd, 	it 	does 	not
necessarily 	follow 	that 	the 	Legislature 	did 	not 	intend 	a 	result
which, 	to 	the 	charging 	party, 	seems 	unfair. 	As 	a 	leading
commentator 	on 	statutory 	construction 	points 	out,
Although 	the 	presumption 	against 	absurdity 	is
strong,the 	presumptions 	against 	unfairness 	and
9
its overriding purpose will be achieved, even if the words used
leave room for a contrary interpretation. " Haberman v. Finch
(2d Cir. 1969) 418 F. 2d 664, 666. In interpreting statutes,
"the general purpose is a more important aid to the meaning
than any rule which grammar or formal logic may lay down."
U.S. v. Whitridge (1905) 197 U.S. 135, 143.
Section 3540.1 specifically defines the various terms
"[als used in this chapter... ." [Emphasis added. ] For
example, the terms "confidential employee", "exclusive
representative", "management employee", and "meeting and
negotiating" are given express statutory definitions. The word
"employee" is defined in subsection 3540.1(j). The effect of
the language "[als used in this chapter" is to create a
presumed intent that the word "employee" will be used in its
defined sense throughout the Act.
The charging party appears to argue that if the Act is read
as a whole, so that the statutory definition of employee is
used when the word "employee" occurs, the result will sometimes
be absurd and sometimes unfair.
While it can be rather easily granted that the Legislature
would not intend a result which is absurd, it does not
necessarily follow that the Legislature did not intend a result
which, to the charging party, seems unfair. As a leading
commentator on statutory construction points out,
Although the presumption against absurdity is
strong , the presumptions against unfairness and

unreasonableness,
	depending
	on
	degree, 	are
	usually
weak.7
The
	burden
	of
	overcoming
	the
	presumption
	that
	the
Legislature
	meant
	for
	the
	statutory 	definition
	of
	employee
	to
be
	applied
	where
	it
	would
	not
	create
	an
	absurd
	result
	weighs
heavily, 	therefore,
	on
	the 	charging
	party.
	That 	burden
	is
	not
met
	in
	this
	case.
	Merely
	demonstrating
	that
	in 	other
	parts
	of
the
	statutory
	scheme
	the
	term
	is
	subject 	to
	a
	possible
alternative 	definition
	does
	not
	rebut 	the 	strong
	presumption
created.
The
	argument
	for 	the
	use
	of
	the
	lay
	definition
	of
"employee"
	in
	this
	context
	also
	fails
	when
	comparison
	is
	made
to 	the
	clearly
	expressed
	legislative 	intent
	in 	other
	sections.
In
	short,
	use
	of 	the
	statutory 	definition
	here
	is
	compatible
with
	the
	intent
	expressed 	elsewhere
	in
	the 	Act.
The
	only
	provision 	of 	the
	Act
	explicitly
	conferring
	any
7oickensen,
	The
	Interpretation
	and
	Application 	of
	Statutes
(1975}
	p.
	232.
10
unreasonableness, depending on degree, are usually
weak . 7
The burden of overcoming the presumption that the
Legislature meant for the statutory definition of employee to
be applied where it would not create an absurd result weighs
heavily, therefore, on the charging party. That burden is not
met in this case. Merely demonstrating that in other parts of
the statutory scheme the term is subject to a possible
alternative definition does not rebut the strong presumption
created.
The argument for the use of the lay definition of
"employee" in this context also fails when comparison is made
to the clearly expressed legislative intent in other sections.
In short, use of the statutory definition here is compatible
with the intent expressed elsewhere in the Act.
The only provision of the Act explicitly conferring any
7 Dickensen, The Interpretation and Application of Statutes
(1975) p. 232.
10

rights 	on 	management 	employees 	is 	section 	3543.4.8 	It
provides 	a 	management 	employee 	with 	the 	right 	to 	represent
himself 	or 	herself 	individually, 	or 	to 	be 	represented 	by 	an
employee 	organization 	whose 	membership 	is 	composed 	entirely 	of
management 	employees, 	in 	his 	or 	her 	employment 	relationship.
Significantly, 	this 	right 	is 	circumscribed, 	in 	that 	"meeting
and 	negotiating" 	is 	forbidden 	in 	general, 	and 	then 	pointedly
and 	explicitly 	ruled 	out 	with 	respect 	to 	"any 	benefit 	or
compensation." 	Although 	management 	employees 	are 	given 	a
limited 	right 	to 	representation 	on 	other 	than 	a 	meet 	and
negotiate 	basis, 	the 	enforcement 	of 	this 	right 	is 	conspicuously
absent 	from 	the 	list 	of 	enforceable 	rights 	explicitly 	contained
in 	the 	unfair 	practice 	provisions 	of 	section 	3543.5. 	It 	is 	also
significant 	that 	the 	entire 	concept 	of 	exclusive 	representation
provided 	by 	section 	3543.l(a) 	is 	made 	inapplicable 	to
8section 	3543.4 	states:
No 	person 	serving 	in 	a 	management 	position 	or 	a
confidential 	position 	shall 	be 	represented 	by 	an
exclusive 	representative. 	Any 	person 	serving 	in
such 	a 	position 	shall 	have 	the 	right 	to 	represent
himself 	individually 	or 	by 	an 	employee
organization 	whose 	membership 	is 	composed
entirely 	of 	employees 	designated 	as 	holding 	such
positions, 	in 	his 	employment 	relationship 	with
the 	public 	school 	employer, 	but, 	in 	no 	case,
shall 	such 	an 	organization meet 	and 	negotiate
with 	the 	public 	school 	employer. 	No
representative 	shall 	be 	permitted 	by 	a 	public
school 	employer 	to meet 	and 	negotiate 	on 	any
benefit 	or 	compensation 	paid 	to 	persons 	serving
in 	a 	management 	position 	or 	a 	confidential
position.
11
rights on management employees is section 3543.4.8 It
provides a management employee with the right to represent
himself or herself individually, or to be represented by an
employee organization whose membership is composed entirely of
management employees, in his or her employment relationship.
Significantly, this right is circumscribed, in that "meeting
and negotiating" is forbidden in general, and then pointedly
and explicitly ruled out with respect to "any benefit or
compensation." Although management employees are given a
limited right to representation on other than a meet and
negotiate basis, the enforcement of this right is conspicuously
absent from the list of enforceable rights explicitly contained
in the unfair practice provisions of section 3543.5. It is also
significant that the entire concept of exclusive representation
provided by section 3543.1(a) is made inapplicable to
8 Section 3543.4 states:
No person serving in a management position or a
confidential position shall be represented by an
exclusive representative. Any person serving in
such a position shall have the right to represent
himself individually or by an employee
organization whose membership is composed
entirely of employees designated as holding such
positions, in his employment relationship with
the public school employer, but, in no case,
shall such an organization meet and negotiate
with the public school employer. 	No
representative shall be permitted by a public
school employer to meet and negotiate on any
benefit or compensation paid to persons serving
in a management position or a confidential
position.
11

management
	employees
	because
	of
	the
	very
	explicit
	limiting
language
	of
	section
	3543.4
	which
	unequivocally 	precludes
management
	employees
	from
	being
	represented
	by 	an
	exclusive
representative.
	It
	can
	thus
	be
	concluded
	that
	the 	Act,
	when
read 	as
	a
	whole,
	does
	not 	suggest
	that
	the
	Legislature
	intended
the
	result
	which
	the 	charging
	party
	urges.
In
	the
	absence
	of
	clear
	evidence 	or
	stronger
	arguments
refuting
	express
	statutory
	language,
	it
	must
	be
	concluded
	that
management
	employees
	do
	not
	have
	the
	right
	to
	file
	unfair
practice
	charges
	on
	their
	own
	behalf.
Two
	references 	to
	the
	federal
	experience 	serve
	to 	reinforce
this
	conclusion.
	First,
	although
	management
	employees 	have
	the
right 	to
	file
	charges
	to
	institute
	National
	Labor
	Relations
Board
	(hereafter
	NLRB)
	proceec!ings,
	the
	right
	stems
	from
	NLRB
Rules
	and
	Regulations
	section 	102.9
	which
	gives 	the
	right
	to
file
	to
	"any
	person".
	Although
	many
	sections
	of 	the
	Act
	are
patterned
	after
	the
	Labor
	Management
	Relations 	Act, 	as
	amended
(hereafter
	LMRA)
,9	
it
	is 	significant 	that
	the
	California
Legislature
	chose
	different
	language
	in
	this
	section
	than
	that
used	
in 	cases
	arising
	under
	the
	LMRA
	While
	it
	could	
have
provided 	"any 	person" 	with 	the
	right 	to
	file,
	the 	Legislature
chose
	instead 	to 	identify
	such
	individuals 	specifically.
	That
is,
	it
	chose
	to 	limit
	them
	to
	"employees", 	"employee
9
929 	u.s.c. 	151
	et
	seq.
12
management employees because of the very explicit limiting
language of section 3543.4 which unequivocally precludes
management employees from being represented by an exclusive
representative. It can thus be concluded that the Act, when
read as a whole, does not suggest that the Legislature intended
the result which the charging party urges.
In the absence of clear evidence or stronger arguments
refuting express statutory language, it must be concluded that
management employees do not have the right to file unfair
practice charges on their own behalf.
Two references to the federal experience serve to reinforce
this conclusion. First, although management employees have the
right to file charges to institute National Labor Relations
Board (hereafter NLRB) proceedings, the right stems from NLRB
Rules and Regulations section 102.9 which gives the right to
file to "any person". Although many sections of the Act are
patterned after the Labor Management Relations Act, as amended
(hereafter LMRA) ,9 it is significant that the California
Legislature chose different language in this section than that
used in cases arising under the LMRA . While it could have
provided "any person" with the right to file, the Legislature
chose instead to identify such individuals specifically. That
is, it chose to limit them to "employees", "employee
29 U.S.C. 151 et seq.
12

organizations" 	or 	"employers". 	This 	choice 	tends 	to 	reinforce
the 	conclusion 	that 	the 	Legislature 	intended 	that 	a 	strict
exclusionary 	construction 	should 	be 	given 	the 	statutory
definition 	of 	"employee".
Second, 	it 	is 	noted 	that 	management 	employees 	are 	generally
excluded 	from 	NLRB 	jurisdiction. 	NLRB 	v. 	Bell 	Aerospace 	Co.,
Div. 	of 	Textron, 	Inc. 	(1974) 	416 	U.S. 	267 	[85 	LRRM 	2945);
Retail 	Clerks 	International 	Association 	v. 	NLRB 	{D.C.Cir. 	1966)
366 	F.2d 	642 	(62 	LRRM 	2837]. 	The 	charging 	party 	attempts 	to
distinguish 	these 	decisions, 	however, 	on 	the 	grounds 	that 	they
deal 	strictly 	with 	bargaining 	unit 	inclusion 	issues 	rather 	than
with 	the 	filing 	of 	unfair 	labor 	practice 	charges. 	It 	is 	true
that 	the 	NLRB 	held 	in 	North 	Arkansas 	Electric 	Cooperative 	Inc.
(1970) 	185 	NLRB 	550 	[75 	LRRM 	1068] 	that 	although 	a 	management
employee 	had 	been 	excluded 	from 	the 	bargaining 	unit 	because 	of
his 	management 	status, 	he 	nevertheless 	was 	entitled 	to 	the
protection 	afforded 	"employees". 	In 	this 	case, 	the 	NLRB 	held
.....that 	a management 	employee 	Flhould 	be 	prot-Prt-Pil 	1mnPr 	SeCLlOn
8(a) (3) 	of 	the 	LMRA 	where 	he 	had 	been 	discharged 	for 	union
sympathies 	expressed 	during 	an 	election 	campaigno 	Prior 	to
North 	Arkansas, 	however, 	the 	NLRB 	had 	consistently 	held 	that
management 	employees 	were 	excluded 	from 	the 	coverage 	of 	the
LMRA. 	See, 	e.g., 	Eastern 	Camera 	and 	Photo Corp. 	(1963) 	140
NLRB 	569, 	.571 	[52 	LRRM 	1068]; 	AFL-CIO 	(1958) 	120 	NLRB 	969, 	973
[42 	LRRM 	1075]; 	General 	Tel. 	Co. 	of 	Ohio 	(1955) 	112 	NLRB 	1225,
1229 	[36 	LRRM 	1178]. 	The 	Court 	of 	Appeals 	reversed 	the 	NLRB
13
organizations" or "employers". This choice tends to reinforce
the conclusion that the Legislature intended that a strict
exclusionary construction should be given the statutory
definition of "employee".
Second, it is noted that management employees are generally
excluded from NLRB jurisdiction. NLRB v. Bell Aerospace Co. ,
Div. of Textron, Inc. (1974) 416 U.S. 267 [85 LRRM 2945] ;
Retail Clerks International Association v. NLRB (D. C.Cir. 1966)
366 F. 2d 642 [62 LRRM 2837]. The charging party attempts to
distinguish these decisions, however, on the grounds that they
deal strictly with bargaining unit inclusion issues rather than
with the filing of unfair labor practice charges. It is true
that the NLRB held in North Arkansas Electric Cooperative Inc.
(1970) 185 NLRB 550 [75 LRRM 1068] that although a management
employee had been excluded from the bargaining unit because of
his management status, he nevertheless was entitled to the
protection afforded "employees". In this case, the NLRB held
that a management employee should be protected under section
8 (a) (3) of the LMRA where he had been discharged for union
sympathies expressed during an election campaign. Prior to
North Arkansas, however, the NLRB had consistently held that
management employees were excluded from the coverage of the
LMRA. See, e.g., Eastern Camera and Photo Corp. (1963) 140
NLRB 569, 571 [52 LRRM 1068] ; AFL-CIO (1958) 120 NLB 969, 973
[42 LRRM 1075] ; General Tel. Co. of Ohio (1955) 112 NLRB 1225,
1229 [36 LRRM 1178]. The Court of Appeals reversed the NLRB
13

ruling 	in 	NLRB 	v. 	North 	Arkansas 	Electric 	Cooperative, 	Inc.
(8th 	Cir. 	1971) 	446 	F.2a 	602 	[77 	LRRM 	3114], 	holding 	instead
that 	there 	was :
••• nothing 	in 	the 	Act 	[National 	Labor 	Relations 	Act]
or 	its 	legislative 	history 	to 	indicate 	that 	Congress
intended 	the 	word 	'employee' 	to 	have 	one 	definition
for 	the 	purpose 	of 	determining 	a 	proper 	bargaining
unit 	and 	another 	definition 	for 	the 	purpose 	of
determining 	which 	employees 	are 	protected 	from 	being
fired 	for 	union 	activity. 	(NLRB 	v. 	North 	Arkansas,
supra, 	77 	LRRM 	at 	3120). 	--
The 	Court 	of 	Appeals 	decision 	in 	NLRB 	v. 	North 	Arkansas 	is
cited 	with 	apparent 	approval 	by 	the 	Supreme 	Court 	in 	NLRB 	v.
Bell 	Aerospace, 	supra, 	85 	LRRM 	at 	2953.
If 	the 	California 	Legislature 	had 	intended 	that 	management
employees 	be 	granted 	the 	right 	to 	initiate 	unfair 	practice
charges 	on 	their 	own 	behalf, 	that 	decision 	would 	have
represented 	a 	substantial 	departure 	from 	the 	established 	rule
of 	law 	developed 	over 	more 	than 	two 	decades 	of 	federal
experience. 	It 	is 	logical 	to 	conclude 	that, 	had 	such 	a
departure 	been 	intended, 	the 	Legislature 	would 	have 	clearly
signaled 	its 	intent. 	It 	did 	not 	do 	so.
Based 	on 	all 	of 	the 	above, 	it 	is 	concluded 	that 	the
chargi 	rty, 	a 	management 	employee, 	lacks 	the 	standing
necessary 	to 	file 	and 	pursue 	an 	unfair 	actice 	charge 	on 	her
own 	behalf 	under 	the 	Act. 	Since 	charge 	is 	resolved 	on 	this
sis 	it 	is 	not 	necessary 	that 	ot 	r 	issues 	rai
consi 	r 	re.
14
ruling in NLRB v. North Arkansas Electric Cooperative, Inc.
(8th Cir. 1971) 446 F. 2d 602 [77 LRRM 3114], holding instead
that there was :
. . . nothing in the Act [National Labor Relations Act]
or its legislative history to indicate that Congress
intended the word 'employee' to have one definition
for the purpose of determining a proper bargaining
unit and another definition for the purpose of
determining which employees are protected from being
fired for union activity. (NLRB v. North Arkansas,
supra, 77 LRRM at 3120) .
The Court of Appeals decision in NLRB v. North Arkansas is
cited with apparent approval by the Supreme Court in NLRB v.
Bell Aerospace, supra, 85 LRRM at 2953.
If the California Legislature had intended that management
employees be granted the right to initiate unfair practice
charges on their own behalf, that decision would have
represented a substantial departure from the established rule
of law developed over more than two decades of federal
experience. It is logical to conclude that, had such a
departure been intended, the Legislature would have clearly
signaled its intent. It did not do so.
Based on all of the above, it is concluded that the
charging party, a management employee, lacks the standing
necessary to file and pursue an unfair practice charge on her
own behalf under the Act. Since the charge is resolved on this
basis it is not necessary that the other issues raised be
considered here.
14

PROPOSED
	ORDER
It
	is
	the
	Proposed
	Order,
	based
	upon
	the
	findings
	of
	fact
and
	conclusions 	of
	law
	and
	the
	entire
	record 	of 	the
	case,
	that
the
	unfair
	practice
	charge
	filed
	by 	Ms.
	Gail
	Weld
	is
	hereby
DISMISSED.
Pursuant
	to
	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	January 	3,
	1979
	unless
	a
	party
	files
	a
	timely
statement 	of 	exceptions 	within
	twenty
	(20)
	calendar
	days
following 	the 	date 	of 	service 	of
	the
	decision.
	Such
	statement
of 	exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
	by
the 	executive
	assistant
	to
	the
	Board
	at
	the 	headquarters
	office
in
	Sacramento
	before 	the
	close 	of 	business
	(5:00 	p.m.)
on
	January
	2,
	1979
	in 	order 	to
	be
	timely
	filed.
	(See
California
	Administrative
	Code,
	title
	8,
	part
	III,
	section
32135.)
	Any
	statement 	of 	exceptions
	and
	supporting
	brief
	must
be
	served
	concurrently
	with
	its
	filing
	upon
	each
	party 	to
	this
proceeding. 	Proof 	of 	service
	shall
	be
	filed
	with 	the
	Board
itself.
	(See
	California 	Administrative
	Code,
	title
	8,
	part
	III,
sections
	32300 	and 	32305,
	as
	amended.)
Dated:
	December 	12.
	1978
MICHA~TTONSi~
Hea~g
	Office~
15
PROPOSED ORDER
It is the Proposed Order, based upon the findings of fact
and conclusions of law and the entire record of the case, that
the unfair practice charge filed by Ms. Gail Weld is hereby
DISMISSED .
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on January 3, 1979 unless a party files a timely
statement of exceptions within twenty (20) calendar days
following the date of service of the decision. Such statement
of exceptions and supporting brief must be actually received by
the executive assistant to the Board at the headquarters office
in Sacramento before the close of business (5:00 p.m.)
on January 2, 1979 in order to be timely filed. (See
California Administrative Code, title 8, part III, section
32135.) Any statement of exceptions and supporting brief must
be served concurrently with its filing upon each party to this
proceeding. Proof of service shall be filed with the Board
itself. (See California Administrative Code, title 8, part III,
sections 32300 and 32305, as amended. )
Dated: December 12, 1978
MICHAEL J/ TONSING
Hearing Officer
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