Manton Joint Union Elementary School District (PERB 0960E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	MANTON UNIT
OF CHAPTER NO. 	406,
Charging 	Party,
v.
MANTON JOINT UNION ELEMENTARY
SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1483
PERB 	Decision No. 	960
November 	23, 	1992
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Appearances: 	California 	School 	Employees Association by Sharon
R. 	Furlong, 	Senior Field Representative, 	for California School
Employees Association and 	its 	Manton Unit of Chapter No. 	406;
Blandell 	Swanson by L. 	Alan Swanson, 	Attorney, 	for Manton Joint
Union Elementary 	School 	District.
Before Hesse, 	Chairperson, 	Camilli and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California 	School 	Employees 	Association and 	its 	Manton 	Unit 	of
Chapter No. 	406 	(CSEA) 	to a PERB administrative 	law judge's 	(ALJ)
proposed decision 	(attached hereto). 	The ALJ 	found that the
Manton Joint 	Union Elementary 	School 	District 	(District) 	violated
section 3543.5(a), 	(b), 	(c) 	and (d) 	of the Educational Employment
Relations Act 	(ERRA or Act)1 by interfering with a
1EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:

decertification 	election.
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
(d) 	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.
The 	Board has 	reviewed the 	entire record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	CSEA's
exceptions 	and the 	District's 	responses 	thereto. 	The 	Board 	finds
the ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free of
prejudicial 	error and adopts 	them as 	the decision of 	the 	Board
itself.
CSEA'S 	EXCEPTIONS
CSEA 	contends 	the ALJ 	failed 	to provide 	effective 	meaning 	to
EERA 	section 	3541.5(c) 	when he denied CSEA's 	request 	for a
one-year 	cooling off period. 	CSEA asserts 	that 	the 	taint 	of 	the
superintendent's 	letter, 	praising the decertification effort,
remains 	and 	the 	employees would be 	reluctant to 	take 	a position
in conflict with the District's position. 	Such circumstances,
they argue, 	effectively deny the 	employees 	the right to 	freely
N
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cast their vote.
CSEA 	additionally 	asserts 	that 	the ALJ 	failed 	to 	invalidate
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the 	two 	decertification petitionsN filed 	by 	the 	employee 	group.
CSEA relies 	on decisions 	of 	the National 	Labor Relations 	Board
(NLRB), 	citing Alexander Linn Hospital Association 	(1988) 	288
NLRB 	18 	[12 7 LRRM 1318], 	which held that petitions 	for
decertification were 	tainted 	by 	the 	unfair 	labor practices 	found
against the employer, 	and therefore, 	the petitions were
dismissed. 	Further, 	CSEA contends 	that under the NLRB's 	"small
shop doctrine," 	where the 	number of 	employees 	in the work place
is 	small, 	it may be 	inferred that the employer knew of the union
activities 	and 	supported the rival organization. 	(D & D
Distribution v. 	NLRB 	(3rd Cir. 	1986) 	801 	F.2d 	636 	[123
LRRM 	2464].) 	CSEA argues 	that 	the 	District's 	unlawful 	conduct 	so
undermines 	the 	employees' 	support 	for the 	existing union that
CSEA 	stands 	no 	fair 	chance 	in the 	election. 	They 	insist 	only 	an
insulation period and a 	requirement 	that 	a 	new petition be 	filed,
would provide 	an 	equitable 	remedy.
The 	District 	responded 	to CSEA's 	statement 	of 	exceptions
contending the ALJ's 	remedy 	is 	appropriate. 	The 	District 	asserts
that 	there 	has 	been 	"ample 	time 	for CSEA to 	ameliorate any
imagined detrimental 	effects" 	resulting 	from the 	District's
March 25, 	1992 letter.
22 Subsequent 	to 	the 	filing of 	the unfair practice 	charge 	in
this 	case, 	the 	employee 	group 	filed a 	second decertification
petition on July 	1, 	1992. 	This petition has not been processed
pending 	resolution of 	the unfair practice 	charge.
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DISCUSSION
EERA authorizes 	the 	Board 	to 	take 	any 	such 	action necessary
to give 	effect to the policies 	of 	this Act. 	Section 	3541.5(c)
states:
(c) 	The board 	shall have the power to 	issue
a 	decision 	and 	order directing 	an 	offending
party 	to 	cease 	and desist 	from the unfair
practice 	and to 	take 	such affirmative action,
including but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies 	of
this chapter.
In Jefferson School District 	(1980) 	PERB Order No. 	Ad-82
(Jefferson), 	a decertification petition was 	filed with PERB after
unfair practice 	charges 	alleging 	refusal 	to 	meet 	and 	negotiate 	in
good 	faith were 	filed against 	each 	other by 	the 	district 	and 	the
exclusive representative. 	The 	regional director 	imposed a 	stay
of 	the 	decertification 	election pending 	resolution 	of 	the 	unfair
practice 	charges. 	Subsequently, 	the regional 	director 	lifted the
stay 	and 	allowed 	the 	decertification 	election 	to 	go 	forward prior
to 	final 	resolution of the unfair practice 	charges. 	The regional
director 	considered 	a 	number 	of 	factors 	in deciding 	to 	lift 	the
stay, 	including the passage of time 	since the unfair practice
charges were 	filed. 	The 	Board upheld the 	regional 	director's
determination 	and held 	that 	the 	election 	should 	continue 	to 	be
stayed 	only 	if:
. 	. 	. 	the employees' dissatisfaction with
their representative 	is 	in all 	likelihood
attributable 	to 	the 	employer's 	unfair
practices 	rather 	than to 	the 	exclusive
representative's 	failure 	to 	respond 	to 	and
serve the needs 	of 	the employees 	it
represents. 	[Citation.]
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The 	Board 	further 	concluded 	that 	in order 	to preserve 	the
employees' 	free choice 	in the matter of representation, 	the Board
"may delay 	a 	representation election when there 	is 	a 	substantial
risk that 	its 	outcome will 	be 	affected by 	conduct that 	is 	alleged
to be 	an unfair practice when that 	charge 	is 	still pending before
the Board." 	(Jefferson, 	at p. 	18.)
In this 	case, 	CSEA argues 	that a decertification election
should 	not 	be 	conducted until 	there 	has 	been a 	one-year 	cooling
off period to remove the 	"taint" 	of the 	superintendent's 	letter.
The 	employees 	in this 	case 	sought decertification of 	the
exclusive 	representative prior to 	any 	interference 	by 	the
District. 	Further, 	as noted by the ALJ, 	it was the employees,
through 	the 	custodian who 	initiated 	the 	decertification 	effort,
who 	contacted 	the 	superintendent 	seeking 	certain 	information.
The 	District 	did 	not 	initiate 	any 	effort 	to 	direct 	the 	employees
in their choice of 	employee representation. 	Given these 	facts,
it 	cannot be 	concluded that the employees' 	dissatisfaction with
their 	representative was 	attributable 	to 	the 	employer's 	unfair
practice.
Furthermore, 	with the passage 	of 	approximately 	seven months
since 	the 	filing 	of 	the unfair practice 	charge 	and 	the 	resolution
of 	the charge 	through issuance of 	this decision, 	CSEA fails 	to
establish what 	benefit would 	accrue 	to 	the 	employees 	by 	requiring
them to wait a 	full 	year to vote 	in the decertification election.
Therefore, 	this 	exception is rejected.
CSEA also 	contends 	the ALJ 	erred 	by 	failing 	to 	invalidate
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the 	two 	decertification petitions 	filed by 	the 	employee 	group.
CSEA's 	reliance on the NLRB cases 	is 	misplaced. 	In Alexander
Linn Hospital Association, 	supra. 	288 NLRB 	18 	[127 LRRM 1318],
the 	employer 	committed 	several 	unfair 	labor practices 	which 	had
not 	been 	remedied at 	the 	time 	the 	decertification petition was
filed. 	In dismissing the decertification petitions, 	the NLRB
found the 	nature 	of 	the 	violations 	and the 	timing of 	the
decertification effort 	cast 	doubt 	on the 	effectiveness 	of 	the
union. 	Similarly, 	in Jefferson, 	the district and the employee
organization both 	filed 	unfair practice 	charges 	prior 	to 	the
initiation of 	the decertification petition. 	Here, 	the District's
unlawful 	conduct 	occurred 	after 	the 	initial 	decertification
petition was 	filed 	and 	such 	conduct 	cannot 	be 	construed 	as 	the
basis 	for the 	employees' 	dissatisfaction with the 	exclusive
representative.
Further, 	CSEA seeks 	to 	expand the holding 	in D & D
Distribution, 	supra. 	801 	F.2d 636 	[123 LRRM 2464]. 	The court
held 	that 	the 	small 	shop 	doctrine 	allowed 	an 	inference 	that 	the
employer knew of 	its 	employees' 	union activities, 	but 	it did not
then 	conclude 	that 	the 	employer 	supported 	a 	rival 	employee
organization. 	It does 	not 	follow that because the District has
knowledge of the employees' 	decertification effort, 	it therefore
supports 	the effort.
The 	employee 	group 	in this 	case properly 	filed 	a
decertification petition prior 	to 	any unlawful 	acts 	by 	the
District. 	There is no evidence the employees' 	dissatisfaction
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with 	the 	exclusive 	representative 	is 	derived 	from the 	District's
unfair practices. 	Further, 	the District did not 	initiate the
contact with the group. 	CSEA 	fails 	to provide 	any 	compelling
reason to overcome 	the 	Board's 	policy to 	encourage prompt
resolution of 	bargaining unit 	representation issues, 	especially
since 	the unfair practice 	charge 	has 	been 	resolved 	through
issuance of this decision. 	Accordingly, 	this 	exception is
rejected 	and 	the 	Board 	finds 	that 	a 	new decertification 	election
should be 	conducted 	in order to permit 	the 	employees 	an
opportunity 	to 	decide the 	question 	of 	representation.
ORDER
Based upon the 	findings 	of 	fact 	and 	conclusions 	of 	law and
the 	entire record 	in this 	case, 	the Board 	finds 	that the Manton
Joint 	Union Elementary School 	District 	(District) 	violated
section 3543.5(c) 	and 	(d) 	of the Educational Employment Relations
Act 	(EERA) 	when the 	superintendent bypassed 	the 	exclusive
representative 	to 	negotiate with 	the 	representative 	of 	a 	rival
group 	of 	employees 	and declared pre-election 	support 	for 	that
group. 	Because the action had the 	additional 	effect of
interfering with the right of 	unit members 	to be 	represented by
the 	California 	School 	Employees 	Association and 	its 	Manton 	Unit
of Chapter No. 	406 	(CSEA), 	it was also a violation of EERA
section 	3543.5(a). 	Because the action had the further effect of
interfering with the right of CSEA to represent 	its 	members, 	it
also violated EERA section 3543.5(b).
Pursuant to EERA section 3541. 5(c), 	it is hereby ORDERED
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that 	the District, 	its 	governing board and its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Encouraging employees 	to 	support any organization
in preference 	to 	another at a 	time when a 	question concerning
representation is pending by: 	(a) 	negotiating with 	individual
employees 	or organizations 	other 	than the 	exclusive
representative, 	CSEA; 	and 	(b) 	making statements through the
superintendent 	or 	other 	agent which 	express 	support 	for 	and/or
appreciation of 	rival 	organization 	efforts 	to decertify 	CSEA 	as
the 	exclusive 	representative;
2. 	Interfering with the 	right of 	the classified
employees 	to be represented by CSEA; 	and
3. 	By the 	same conduct, 	interfering with the right of
CSEA to represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer subject to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	classified 	employees
customarily are posted, 	copies 	of 	the Notice attached hereto 	as
an Appendix. 	The Notice must be 	signed by an authorized 	agent 	of
the 	District, 	indicating 	that 	the 	District will 	comply with 	the
terms 	of 	this 	Order. 	Such posting 	shall be maintained 	for a
period of thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be 	taken to 	ensure that the Notice 	is 	not 	reduced 	in 	size,
altered, 	defaced or 	covered with 	any other material.
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2. 	Make written notification of 	the 	actions 	taken to
comply with this 	Order to 	the 	Sacramento 	Regional 	Director of 	the
Public 	Employment 	Relations 	Board 	in accord with 	the 	director's
instructions.
C. 	IT 	IS ALSO ORDERED THAT:
The results of the May 	11, 	1992 	election be 	set aside
and the ballots 	destroyed. 	The 	Sacramento Regional 	Director 	is
hereby directed 	to 	conduct 	a 	new election.
Chairperson Hesse and Member Camilli 	joined 	in this 	Decision.
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APPENDIX 	NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	S-CE-1483,
California 	School 	Employees 	Association and 	its 	Manton Unit 	of
Chapter No. 	406 v. 	Manton Joint Union Elementary School 	District,
in which all parties had the right to participate, 	it has 	been
found 	that 	the 	Manton Joint 	Union Elementary 	School 	District
(District) 	has 	violated the 	Educational 	Employment Relations Act
(EERA), Government Code section 3543.5(a), 	(b), 	(c) and (d). 	The
District 	violated these provisions 	of 	the 	EERA when the
superintendent 	bypassed 	the 	exclusive 	representative 	to 	negotiate
with 	a 	rival 	group 	of 	employees 	and declared pre-election 	support
for that group.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Encouraging employees 	to 	support any organization
in preference 	to another at a 	time when a question
concerning representation is pending by: 	(a) 	negotiating
with 	individual 	employees 	or organizations 	other 	than 	the
exclusive representative, 	CSEA; 	and 	(b) 	making statements
through 	the 	superintendent 	or 	other 	agent which 	express
support 	for 	and/or 	appreciation of 	rival 	organization
efforts 	to decertify CSEA as 	the 	exclusive 	representative;
2. 	Interfering with the right of 	the 	classified
employees 	to be represented by CSEA; 	and
3. 	By the 	same conduct, 	interfering with the right of
CSEA to represent 	its members.
B. 	IT IS ALSO ORDERED THAT:
The results of the May 	11, 	1992 	election be 	set aside
and the ballots 	destroyed. 	The 	Sacramento Regional 	Director
is 	hereby directed to 	conduct 	a 	new election.
Dated: 	MANTON 	JOINT 	UNION
ELEMENTARY 	SCHOOL 	DISTRICT
By:
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND 	MUST NOT
BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION and 	its MANTON UNIT
Of CHAPTER No. 	406,
Charging 	Party,
v.
MANTON JOINT 	UNION 	ELEMENTARY
SCHOOL DISTRICT,
Respondent.
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) 	Unfair 	Practice
Case No. 	S-CE-1483
PROPOSED 	DECISION
(8/5/92)
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Appearances: 	Jan Dole, 	Field Representative, 	for the California
School 	Employees Association and 	its Manton Unit 	of 	Chapter
No. 	406; 	Blandell Swanson by L. 	Alan Swanson, 	Attorney, 	for the
Manton Joint 	Union Elementary School 	District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union 	representing 	a unit 	of 	classified 	employees 	contends
here 	that 	a decertification 	election 	should be 	invalidated
because 	of a 	school 	superintendent's pre-election letter. 	In the
letter, 	which was written in reply to a 	letter 	from the 	employee
guiding 	the decertification, 	the 	superintendent made 	certain
commitments 	and praised 	the 	decertification effort. 	The District
defends 	on the 	theory 	that 	the 	superintendent's 	letter had no
effect on the election result and urges 	that 	the ballots, 	which
have been impounded, 	be 	counted.
The 	California 	School 	Employees Association and 	its Manton
Unit 	of 	Chapter No. 	406 	(CSEA or Union) 	commenced this 	action on
April 	13, 	1992, 	by filing an unfair practice charge against 	the
Manton Joint Union Elementary School District 	(District). 	The
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	followed on April 	28 	with a 	complaint 	against 	the
District.
The 	complaint alleges 	that District 	Superintendent 	R. 	Barry
Morrell, 	by a 	letter sent 	to a group of 	employees 	on or about
March 25, 	1992, 	bypassed CSEA and interfered with the protected
rights 	of unit members and CSEA. 	These actions were alleged to
be in violation of section 3543.5(a), 	(b), 	(c) 	and 	(d) 	of the
Educational Employment Relations Act 	(EERA) .1
The District answered the complaint 	on May 5, 	1992, 	denying
any wrong-doing. 	A hearing was 	conducted 	in Willows 	on July 27,
1 Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government 	Code. 	The 	EERA is 	codified at Government 	Code
section 3540 	et 	seq. 	In relevant part, 	section 3543.5 provides
as follows:
It 	shall 	be unlawful 	for a public 	school
employer to:
(a) 	Impose 	or threaten to 	impose reprisals 	on
employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by this chapter. 	. 	. 	.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
(d) 	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.
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1992. 	With the filing of briefs, 	the matter was 	submitted for
decision on August 3, 	1992.2
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under the 	EERA.
CSEA at 	all 	times 	relevant 	has 	been 	the 	exclusive 	representative
of 	a 	comprehensive unit 	of 	the District's 	classified employees.3
The District 	operates 	one 	school 	and during 	February and March 	of
1992, 	when the events at 	issue took place, 	had nine classified
employees.
Suzanne M. 	Rodrigue, 	a custodian for the District, 	testified
that 	the 	decertification effort was 	initiated by her. 	She 	said
when she 	decided to attempt 	the 	removal 	of 	CSEA she 	called, 	for
advice, 	a 	former boss who was 	employed at a school 	district 	in
Crocket. 	That boss advised her to contact 	the 	PERB. 	She
testified 	that 	she 	then called 	the 	Sacramento Regional 	Office 	of
the 	PERB where 	she was 	given 	instructions 	about 	how to 	conduct 	a
decertification 	attempt.
On February 24, 	1992, 	Ms. 	Rodrigue assembled a group of
classified employees 	to discuss 	the 	decertification of 	CSEA as
exclusive 	representative. 	Six of 	the District's 	nine 	employees
attended the meeting and by the 	time 	it 	ended, 	all 	six had signed
the proof 	of 	support 	for the decertification. 	Four of 	those who
22 The parties 	elected not 	to 	request 	a 	transcript 	of 	the
hearing. 	This proposed decision 	is 	written on the basis 	of 	notes
taken at 	the 	hearing and documentary evidence.
3 CSEA was 	voluntarily 	recognized 	as 	exclusive 	representative
on April 28, 	1978. 	See PERB representation file, 	S-D-148
(S-R-688).
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signed the petition were 	instructional 	aides. 	One was 	a 	cook and
one a custodian. 	On March 5, 	Ms. 	Rodrigue 	filed the
decertification petition with 	the 	Sacramento Regional 	Office 	of
the 	PERB. 	The 	decertification petition was 	found to be 	timely
and backed by a 	sufficient 	showing 	of 	support. 	The 	Regional
Director ordered that an election be held on May 11, 	1992.
On March 24, 	Ms. 	Rodrigue wrote a letter to Superintendent
Morrell. 	She 	stated 	in the 	letter that 	"experience with this
[emphasis 	in original] 	union has 	shown that 	decertification will
benefit 	the 	school 	in general 	as well 	as 	the majority of 	the
classified unit." 	She noted, 	however, 	that an exclusive
representative 	could be 	reinstated after one year. 	She 	then
identified a 	series 	of 	working 	conditions 	and 	observed 	that
"[b]efore 	the 	election date we 	need assurance 	that:"
1. 	The 	contents 	of 	the present 	contract
will 	be 	reduced to 	school policies 	in
accordance with 	the 	Education Code with 	input
by 	the 	Classified Unit.
2. 	Present 	compensations 	and benefits will
remain in effect.
3. 	Salaries will 	continue at 	the present
schedule with options 	to negotiate as 	in the
past.
4. 	Job 	classifications and duties 	remain
the 	same with 	input 	by the 	Classified Unit 	on
changes.
5. 	You will 	agree 	to meet with a
representative 	committee when 	issues 	of
concern to 	the unit 	or the 	school 	arise and
need 	to be 	resolved.
The 	letter was 	signed, 	"Suzanne M. 	Rodrigue Representing A Group
of 	Classified Employees."
4

Superintendent Morrell 	replied by letter of March 25. 	In
his 	response 	he 	listed by number each 	item from Ms. 	Rodrigue's
letter and 	stated 	that 	each was 	"acceptable." 	In addition 	to
those 	items, 	he 	listed a sixth working 	condition which the
District 	would honor.4 His 	letter 	concluded with 	the 	following
comment:
Personally, 	I 	can never express 	to the
individuals 	responsible 	for 	this
decertification, 	my admiration of 	their
courage, 	commitment to the school, 	the
community, 	and the certificated staff, 	for
the position they have 	taken. 	A position
that 	demonstrates 	an attitude 	that puts 	the
children first, 	one that 	truly 	[sic] 	desires
harmony, 	rather 	[th]an and 	[sic] adversarial
[sic] 	relationship; 	An attitude that 	fosters
team work and the betterment 	of 	the 	school 	is
to be applauded.
Thank you all 	for your 	concerns 	for 	the
children, 	staff and community. 	It 	is an
honor 	to work with people 	that 	use 	their
position 	for the betterment 	of 	children and
the 	school 	rather 	than 	for self 	fulfilling
motives.
The 	superintendent's 	letter was 	distributed by Ms. 	Rodrigue among
the 	employees 	who had signed 	the proof 	of 	support 	for 	the
decertification 	attempt.
Not 	long after the 	superintendent 	sent his 	letter, 	CSEA
filed the present unfair practice 	case. 	On May 1, 	the Sacramento
4 Item no. 	6 as 	listed on Mr. 	Morrell's reply reads as
follows:
6. 	Betty Heitmans 	[sic] 	rent and living
conditions will 	remain as 	listed in the
contract. 	The district 	reserves 	the right 	to
revert 	to 	free 	rent 	in the event 	that 	it will
benefit 	all 	concerned.
55

Regional 	Director of 	the 	PERB 	issued an order which determined
that 	the unfair practice 	constituted a blocking 	charge. 	By 	the
same letter, 	the Regional Director ordered that 	the ballots 	from
the May 	11 	on-site 	election be 	impounded pending 	investigation
and resolution of 	the unfair practice 	charge. 	Subsequently, 	the
election was 	conducted and 	the ballots 	remain 	impounded.
At 	the unfair practice hearing, 	the District 	called 	five 	of
the 	six employees 	who 	signed 	the 	showing 	of 	support 	for 	the
decertification 	and 	asked 	each whether 	the 	superintendent's
letter had affected their votes 	in the 	election. 	Each of 	the
employees 	testified 	that 	she 	had not 	been affected by 	the 	letter
and had decided 	to vote 	for decertification prior 	to 	the 	date 	the
letter was written.
The District also introduced a 	copy of a July 1, 	1992,
decertification petition 	filed against 	the 	CSEA chapter at
Manton. 	The petition bears 	the signatures 	of 	the same six
employees 	as 	signed the 	original petition plus 	the 	signature 	of
an employee 	hired 	since 	then.
LEGAL 	ISSUE
Did 	the District 	through 	the 	superintendent's 	letter of
March 25, 	1992:
A) 	Interfere with the protected right 	of 	employees 	to be
represented by 	CSEA 	in violation 	of 	Government 	Code 	section
3543.5(a) ?
B) 	Interfere with the 	right 	of 	CSEA to represent 	its
members 	in violation 	of 	Government 	Code 	section 	3543.5(b)?
66

C) 	Bypass, 	undermine and derogate 	the authority of 	CSEA in
violation 	of 	Government 	Code 	section 	3543.5 (c)?
D) 	Encourage 	employees 	to vote 	in preference 	of
decertification 	in violation 	of 	Government 	Code 	section
3543.5(d)?
CONCLUSIONS 	OF 	LAW
The 	rules 	of 	law 	in pre-election 	cases 	involving
interference 	with 	employee 	choice 	and unlawful 	employer
preference are well 	established 	in PERB decisions. 	There 	is
considerable 	overlap 	among 	them and 	the 	evidence 	which will
establish 	interference 	often will 	also 	establish unlawful
employer 	support. 	Typically, 	where an employer has unlawfully
supported one 	organization 	in preference 	to another, 	that 	conduct
will 	constitute 	interference 	with various 	protected 	rights.
Public 	school 	employees 	have 	the protected 	right
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for 	the purpose 	of
representation on all 	matters 	of 	employer-
employee 	relations.5
It 	is 	an unfair practice under section 3543.5(a) 	for a public
school 	employer 	"to 	interfere with, 	restrain, 	or coerce employees
because of 	their exercise of" 	protected rights.
In an unfair practice 	case 	involving 	an allegation 	of
interference, 	a violation will 	be 	found where 	the 	employer's 	acts
interfere 	or 	tend 	to 	interfere with 	the 	exercise 	of 	protected
rights 	and 	the 	employer 	is 	unable 	to 	justify 	its 	actions 	by
5 Section 	3543.
77

proving 	operational 	necessity. 	(Carlsbad Unified 	School 	District
(1979) 	PERB Decision No. 	8 9 . ) 6 In an interference case, 	it 	is
not 	necessary 	for 	the 	charging 	party 	to 	show 	that 	the 	respondent
acted with an unlawful 	motivation. 	(Regents 	of 	the 	University 	of
California 	(1983) 	PERB Decision No. 	305-H.)
Like 	individual 	employees, 	organizations 	also have protected
rights 	under 	the 	EERA. 	Among 	these 	is 	the 	right 	of 	an employee
organization 	to 	represent 	its members.7 It 	is 	an unfair practice
under 	section 	3543.5(b) 	for a public 	school 	employer 	to 	"deny 	to
employee 	organizations 	rights" 	protected by 	the 	EERA. 	An alleged
6 The 	Carlsbad 	test 	for 	interference provides, 	in relevant
part, 	as follows:
(2) 	Where 	the 	Charging 	Party establishes
that 	the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm to 	employee 	rights
granted under 	the 	EERA, 	a prima 	facie 	case
shall 	be 	deemed 	to 	exist;
(3) 	Where 	the harm to the employees' 	rights
is 	slight, 	and the 	employer offers
justification 	based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer and
the 	rights 	of 	the 	employees 	will 	be balanced
and 	the 	charge 	resolved 	accordingly;
(4) 	Where 	the 	harm is 	inherently destructive
of 	employee 	rights, 	the employer's 	conduct
will 	be 	excused 	only 	on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
(5) 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would 	not 	have 	engaged 	in 	the
complained 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent.
7 Section 3543.1(a).
88

interference with organizational 	rights 	is 	analyzed 	in 	the 	same
manner as 	an alleged 	interference with 	individual 	rights.
Evidence 	that 	an 	employer has 	negotiated with a 	rival 	group
of 	employees 	may show both a bypassing 	of 	the 	exclusive
representative 	and unlawful 	preference 	between 	organizations.
Upon the 	certification of 	an exclusive 	representative, 	the
employer 	is 	obligated 	to 	refrain 	from negotiating directly with
employees 	in the bargaining unit. 	(Walnut Valley Unified School
District 	(1981) 	PERB Decision No. 	160.) 	Once an exclusive
representative has been chosen, 	"only that 	employee 	organization
may 	represent 	that unit 	in 	their employment 	relations 	with 	the
public 	school 	employer."8 When an employer bypasses 	the
exclusive 	representative 	and negotiates 	directly with 	employees,
an employer 	fails 	to negotiate 	in good 	faith 	in violation of
section 3543.5(c).
Finally, 	under section 3543.5(d) 	it 	is an unfair practice
for a public 	school 	employer 	to 	"contribute 	financial 	or other
support" 	to an employee 	organization or to 	"in any way encourage
employees 	to 	join any organization 	in preference 	to another."
The 	PERB 	has 	interpreted 	this 	language as 	imposing 	"an
unqualified 	requirement 	of 	strict 	neutrality." 	(Clovis 	Unified
School District 	(1984) 	PERB Decision No. 	389.) 	There is no
requirement 	that 	the 	aggrieved 	employee 	organization 	show 	that
the 	employer 	intended 	its 	actions 	to 	impact 	on employee 	free
choice. 	"The 	simple 	threshold test 	. . . 	is whether the
1 18 Section 3543.1(a).
99

employer's 	conduct 	tends 	to 	influence 	that 	choice 	or provide
stimulus 	in one direction or the 	other." 	(Santa Monica Community
College District 	(1979) 	PERB Decision No. 	103.) 	It 	is
unnecessary 	that 	the 	organization 	for which 	the 	employer
expressed preference be 	listed on 	the ballot 	or be 	a 	formally
constituted organization. 	(Clovis Unified School District.
supra. 	PERB Decision No. 	389; 	Sacramento City Unified School
District 	(1982) 	PERB Decision No. 	214.)
The 	central 	factual 	allegations 	of 	this 	case are undisputed.
During 	the 	time 	immediately prior 	to 	a 	decertification 	election,
the 	leader of 	the decertification effort, 	Suzanne Rodrigue,
requested 	the 	District 	superintendent 	to make 	certain
commitments. 	Although the 	letter was 	signed only by
Ms. 	Rodrigue, 	it 	is 	clear from the text of the letter that
Ms. 	Rodrigue was 	representing a group of 	employees. 	She
requested 	commitments 	about 	the 	retention of wages 	and other
benefits. 	More telling, 	she also asked for a commitment 	that 	the
superintendent would agree 	to 	future meetings with 	"a
representative 	committee when 	issues 	of 	concern to 	the unit" 	need
to be 	resolved.
The 	superintendent 	promptly acceded 	to 	every 	request 	set 	out
in the 	letter. 	He also offered assurance of 	the 	continuance 	of
another employee benefit 	which was 	not 	even 	requested 	in 	the
employee 	letter. 	Then, 	the superintendent went 	on to profusely
praise 	the 	employees 	involved 	in 	the 	decertification 	for 	their
"courage" 	and 	"commitment 	to the 	school."
10

The 	exchange 	of 	letters between Ms. 	Rodrigue and the
superintendent 	clearly 	concerned wages 	and 	other matters 	within
the scope of 	representation. 	Ms. 	Rodrigue asked for and was
given assurances 	that 	the 	decertification of 	CSEA would 	result 	in
no 	change 	of 	those matters. 	At 	the 	time 	this 	exchange occurred,
CSEA remained 	the 	exclusive 	representative. 	By dealing directly
with Ms. 	Rodrigue, 	the superintendent bypassed CSEA. 	In
bypassing 	the 	exclusive 	representative 	and dealing 	directly with
a group 	of 	employees, 	the District 	failed to negotiate 	in good
faith in violation of section 3543.5(c).
It is clear from Ms. 	Rodrigue's letter, 	moreover, 	that she
envisioned more 	than the 	simple decertification of 	CSEA. 	She
plainly anticipated a 	continuing 	organization 	to meet 	with 	the
District 	and discuss 	working 	conditions. 	She 	requested and was
given 	the 	superintendent's 	assurance 	that 	he 	would hold 	future
meetings 	with a 	classified employees 	committee 	to discuss 	working
conditions.
It 	is 	of 	no moment 	that 	the 	organization had no 	official
name other than Ms. 	Rodrigue's description of 	it as 	"A Group of
Classified Employees." 	It 	is 	similarly insignificant 	that
Ms. 	Rodrigue's 	group did not appear as 	a rival 	organization on
the decertification election ballot. 	The 	"Group of 	Classified
Employees" 	was 	a de 	facto 	employee 	organization and by his
March 25 	letter 	the 	superintendent 	expressed a 	clear preference
in 	favor of 	it. 	He also made a commitment 	to deal with the group
in 	the 	future. 	The 	superintendent 	thus 	failed to 	satisfy the
11

unqualified 	requirement 	of 	strict 	neutrality which 	the 	Board has
required in representation elections. 	By this 	conduct, 	the
District violated section 3543.5(d).
The 	superintendent's 	bypassing 	of 	CSEA and 	favoritism toward
the 	"Group of 	Classified Employees" 	were 	acts which would have
the 	natural 	effect 	of 	interfering with 	the protected 	rights 	of
CSEA supporters 	to be 	represented by CSEA. 	Similarly, 	the
bypassing 	and 	favoritism 	toward 	the 	rival 	group 	would 	interfere
with CSEA's 	ability 	to represent 	its members. 	So 	long as 	CSEA
continued to be 	the 	exclusive 	representative, 	the District was
not permitted to engage 	in such conduct. 	The District 	offered no
operational 	necessity to justify its actions. 	These actions,
therefore, 	also violated section 3543.5(a) 	and 	(b).
REMEDY
The PERB 	in section 3541.5(c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an 	offending party 	to 	cease 	and
desist 	from the unfair practice 	and to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies 	of 	this 	chapter.
CSEA here requests 	that the election of May 11, 	1992, 	be set
aside 	and 	that 	no new election be held 	for a period 	of 	one year
following 	the 	issuance 	of 	this proposed decision. 	The District
argues 	that 	since 	there 	is 	no showing 	that 	the 	superintendent's
letter had any effect 	on the 	election result, 	the ballots 	from
the May 	11 	election 	should be 	opened and 	counted.
12

The 	basic 	question 	in determining whether 	to 	set 	aside 	an
election 	is 	whether 	the various 	unlawful 	activities 	establish a
"probable 	impact 	on the employees' 	vote." 	(Jefferson Elementary-
School District) 	(1981) 	PERB Decision No. 	164.)9 When measuring
whether unlawful 	employer 	conduct 	had a 	"probable 	impact" 	on
employee 	choice, 	an objective 	standard is 	followed. 	The question
is 	whether 	the 	employer's 	conduct 	would 	reasonably 	tend 	to 	coerce
or 	interfere with employee 	choice.
That 	no 	one was 	in 	fact 	coerced or
intimidated is 	of no relevance. 	The 	test 	of
coercion and intimidation 	is 	not 	whether 	the
misconduct proves 	effective. 	The 	test 	is
whether the misconduct 	is 	such that, 	under
the 	circumstances 	existing, 	it may reasonably
tend 	to 	coerce 	or 	intimidate 	employees 	in 	the
exercise 	of 	rights protected under the Act.
(NLRB v. 	Triangle Publications 	(3d Cir. 	1974)
500 	F.2d 597, 	598 	[86 	LRRM 2939].)
The 	superintendent's 	letter of 	support 	for the 	"Group of
Classified Employees" 	and his pre-election commitments 	to 	it was
conduct 	of 	the 	type which would have a probable 	impact 	on 	the
employee vote. 	Assurances 	that benefits would remain unchanged
and 	that 	the 	superintendent 	would hold 	future meetings 	with an
employee 	committee 	would naturally minimize voter 	concerns 	about
the 	future. 	Voters 	could cast 	their ballots 	confident 	that 	they
would 	retain 	their 	existing benefits 	without 	CSEA. 	Some voters
might 	also be 	influenced by the 	superintendent's 	high praise 	of
their decision 	to 	remove 	CSEA as 	exclusive 	representative.
9 It 	is unnecessary that actual 	impact be proven. 	(San Ramon
Valley Unified School District 	(1979) 	PERB Decision No. 	111;
Clovis Unified School District, 	supra. 	PERB Decision No. 	389.)
13

The District 	argues 	that 	the 	superintendent's 	letter 	is 	no
basis 	for 	setting aside 	the 	election because 	six of 	the 	nine
employees 	decided 	in 	February 	to vote 	against 	CSEA. 	They made up
their minds when they signed the petition, 	the District 	argues,
and 	this 	occurred 	long before 	the 	superintendent 	wrote 	the
disputed letter. 	Moreover, 	the District argues, 	the employees
testified 	they were 	unaffected by 	the 	letter.
The District's argument assumes, 	however, 	that employee
signatures 	on a proof 	of 	support 	equate 	automatically with
employee votes 	in an election. 	Indeed, 	common experience shows
this 	is not 	the 	case. 	Election results demonstrate 	that
employees 	often vote 	differently 	than their 	signatures 	or non-
signatures 	on showing of 	support petitions would predict. 	The
same holds 	true 	for 	the 	testimony of 	five 	employees 	that 	they
were unaffected. 	It 	is 	common knowledge 	that what people 	say
about 	an 	election and how 	they actually 	cast 	their 	secret 	ballots
are 	often quite 	different. 	Peer pressure might 	cause an
employee's 	public 	statements 	to differ 	from what 	that 	employee
actually believed. 	This 	is 	one 	reason that an objective 	rather
than a subjective 	test 	is 	employed to determine 	impact.
I 	find it appropriate, 	therefore, 	that the May 11 election
be 	set 	aside 	and the 	ballots 	destroyed without 	being 	counted.
I 	find no justification, 	however, 	for CSEA's 	request 	that a
one-year 	cooling 	off 	period be 	imposed prior 	to 	any new election.
Although 	the 	superintendent 	improperly negotiated with 	the 	"Group
of Classified Employees" 	and made commitments to it, 	there 	is no
14

evidence he 	initiated this 	conduct. 	The unchallenged evidence 	is
that Ms. 	Rodrigue 	initiated the decertification election without
support 	or assistance 	from the District. 	It was 	also 	she who
initiated 	the 	negotiations 	with the 	superintendent.
It 	is not clear, 	under these circumstances, 	what purpose a
one-year 	cooling 	off 	period would achieve. 	The 	harm to be
remedied was 	in a very real 	sense 	instigated by 	the very
employees 	who 	supposedly would benefit 	from the 	cooling 	off
period. 	The Union has made no persuasive argument 	about what
benefit 	would be 	achieved 	in 	compelling 	these 	employees 	to wait 	a
year 	to vote 	in a new election.
The 	District 	will 	be 	ordered 	to 	cease-and-desist 	from 	its
unlawful 	conduct. 	After the District has 	admitted that 	it 	acted
unlawfully through the posting of 	the attached notice, 	there will
be 	no 	further 	delay 	ordered before 	the 	Regional 	Director may
conduct 	a new election as 	the 	director 	finds 	appropriate.
It 	is 	appropriate 	that 	the District be 	directed to post 	a
notice 	incorporating 	the 	terms 	of 	the 	order. 	Posting of 	such a
notice, 	signed by an authorized agent 	of 	the District, 	will
provide 	employees 	with notice 	that 	the District 	has 	acted 	in an
unlawful manner, 	is being 	required 	to 	cease and desist 	from this
activity, 	and will 	comply with the order. 	It effectuates 	the
purposes 	of 	the 	EERA that 	employees 	be 	informed 	of 	the 	resolution
of 	this 	controversy and 	the District's 	readiness 	to 	comply with
the 	ordered remedy. 	(Placerville Union School 	District 	(1978)
PERB Decision No. 	69.)
15

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Manton
Joint Union Elementary School 	District 	(District) 	violated
section 3543.5(c) 	and 	(d) 	of 	the Educational 	Employment Relations
Act 	(Act). 	The District violated the Act when the 	superintendent
bypassed 	the 	exclusive 	representative 	to 	negotiate 	with 	the
representative 	of 	a 	rival 	group 	of 	employees 	and declared
pre-election support 	for that 	group. 	Because 	the action had the
additional 	effect 	of 	interfering with 	the 	right 	of 	unit members
to be 	represented by 	the 	California 	School 	Employees 	Association
and its Manton Unit of Chapter No. 	406 	(CSEA), 	the refusal 	to
negotiate also was a violation of 	section 3543.5(a). 	Because the
action had 	the 	further effect 	of 	interfering with the 	right 	of
CSEA to 	represent 	its members, 	the 	refusal 	to negotiate also was
a violation of 	section 3543.5(b).
Pursuant to section 3541.5(c) 	of the Government Code, 	it
hereby is 	ORDERED 	that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Encouraging 	employees 	to 	support 	any 	organization
in preference 	to another at 	a 	time when a question concerning
representation 	is 	pending by:
(a) 	Negotiating with individual 	employees 	or
organizations 	other 	than 	the 	exclusive 	representative,
California 	School 	Employees Association;
16

(b) 	Making statements 	through the 	superintendent
or 	other agent which express 	support 	for and/or
appreciation of 	rival 	organization efforts 	to decertify
the 	CSEA as 	exclusive 	representative;
2. 	By the 	same 	conduct, 	interfering with the right 	of
the 	classified 	employees 	to be 	represented by CSEA;
3. 	By the same 	conduct, 	interfering with the 	right 	of
CSEA to 	represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Within ten 	(10) 	workdays 	of 	the service of a final
decision 	in this matter, 	post at all work locations where notices
to 	classified employees 	customarily are posted, 	copies 	of 	the
Notice attached hereto as an Appendix. 	The Notice must be 	signed
by an authorized agent 	of 	the District, 	indicating that 	the
District will 	comply with the 	terms 	of 	this 	Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to ensure 	that 	the
Notice 	is not 	reduced in size, 	altered, 	defaced or covered with
any other material.
2. 	Upon issuance of a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to 	the
Sacramento Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	in accord with 	the 	director's 	instructions.
C. 	IT ALSO IS ORDERED THAT:
The results of the May 11, 	1992, 	election be set aside
and 	the ballots 	destroyed.
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Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall become
final 	unless 	a party 	files a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 20
days of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and supporting brief must be 	served
concurrently with 	its 	filing upon each party 	to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Panell E, PalulaughRonald E. 	Blubaugh
Administrative 	Law 	Judge
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