San Mateo County Community College District (PERB A058E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
AMERICAN
	FEDERATION
	OF
	STATE
	COUNTY
	AND
MUNICIPAL
	EMPLOYEES,
	AFL-CIO,
	LOCAL
	377,
Employee
	Organization,
APPELLANT,
and
CALIFORNIA
	SCHOOL 	:&\!PLOYEES
	ASSOCIATION,
Employee
	Organization,
and
SAN MATEO 	COUNTY 	COMMUNITY
	COLLEGE
DISTRICT,
Employer.
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______________________ )
Case
	No. 	SF-D-22
PERB
	Order
	No. 	Ad-58
Administrative
	Appeal
February 	14,
	1979
APaearances: 	Michael
	J.
	Dunlap,
	Business
	Agent
	for
	AmericanFe
	eration
	of
	State
	County 	and
	Municipal
	Employees,
	AFL-CIO,
Local
	377i
	Tom
	Matteoli, 	Representative 	for
	California
	School
Employees
	Association.
Before 	Gluck, 	Chairperson1
	Cossack 	Twohey 	and
	Gonzales,
	Members.
DECISION
The 	American
	Federation 	of
	State
	County 	and
	Municipal
Employees, 	AFL-CIO,
	Local
	377
	(hereafter
	AFSCME), 	has
	appealed
the
	decision 	of 	the
	San
	Francisco 	regional 	director 	to
	withdraw
the 	appointment 	of
	a
	mediator 	pending 	completion 	of
	a
decertification 	election.
	AFSw'-1E
	objects 	that 	the 	decision
	was
issued 	without 	proper 	review 	of 	the 	facts
	of 	the 	case, 	reversed
the 	position 	of 	the 	Board
	that 	mediation 	was
	appropriate,
	was
issued 	without 	authority
	as 	the 	withdrawal 	had 	not 	been 	sought
by 	a 	party, 	and 	improperly 	negated 	the 	District's 	obligation 	to

recognize
	and
	negotiate
	with
	AFSCME
	during
	a
	period 	in
	which
AFSC..~E
	continued
	to
	enjoy
	a
	presumption
	of 	majority 	support.
The
	Public
	Employment
	Relations
	Board
	(hereafer
	PERE
	or
	the
Board)
	affirms
	the
	decision 	of
	the
	regional
	director.
FACTS
The 	San 	Mateo
	County
	Community
	College
	District
	(hereafter
District)
	extended
	voluntary
	recognition 	to
	AFSCME
	as
	the
exclusive 	representative
	of
	a
	blue
	collar
	unit
	of
	buildings,
grounds,
	and
	food
	services
	employees 	on
	February 	14,
	1977.
Approximately
	14 	months
	later,
	on
	April
	17, 	1978,
	the
San
	Francisco 	regional
	director
	granted 	the
	joint
	request 	of
the
	District
	and
	AFSCME
	to 	find
	their
	negotiations
	for
	an
initial
	contract
	at
	impasse,
	and
	appointed	
a	
mediator.
	That
same
	day, 	April
	17, 	1978,
	the
	California
	School
	Employees
Association
	and
	its
	San Mateo
	County
	Community
	College
	District
Chapter
	No. 	33
	(hereafer
	CSEA)
	filed
	a
	petition
	for
decertification
	of
	AFSCME. 	On May
	2, 	1978,
	the
	San
	Francisco
regional 	director
	determined
	that
	the
	petition
	of
	CSEA
evidenced
	a
	sufficient
	showing
	of 	support
	and
	directed 	that
	a
decertification 	election
	proceed.
	The
	regional 	director 	also
informed 	the
	parties
	on
	May
	2, 	1978,
	that
	he
	determined
	that
the
	valid 	decertification 	petition 	created
	a
	question
concerning 	representation. 	Consequently,
	he 	was
	withdrawing
the 	appointment 	of 	the 	mediator
	until 	resolution 	of 	the
decertification 	proceeding.
On 	May
	15, 	1978,
	AFSCME
	appealed 	the 	decision 	to 	withdraw
the 	mediator.
	AFSCME
	did 	not 	contest 	the 	finding 	of 	the
2

director 	that
	a
	question
	of
	representation
	had
	been
raised.
	Indeed,
	in
	its
	appeal
	AFSCME
	specifically
	requested
that
	the
	decertification 	election
	not
	be
	stayed
	pending
	the
appeal.
	Nor
	did
	AFSCME
	request 	negotiations
	of 	the
	District
	in
the 	face
	of
	the
	withdrawal 	of
	the 	mediator.
While
	the 	appeal 	of	
AFSCME	
was
	pending,
	the
	decertification
election
	was
	held
	on
	June 	2, 	1978.
	AFSCME
	won
	the
	election;
CSEA
	did
	not
	file
	objections;
	and
	AFSCME
	was
	certified
	as
	the
exclusive 	representative
	on
	June
	10,
	1978.
DISCUSSION
AFSC..'1.E
	did 	not
	substantiate
	its
	bald
	allegation 	that
	the
regional 	director 	failed
	to 	properly
	review
	the
	facts
	of 	the
case.
	The
	regional
	director
	withdrew
	the 	appointment 	of
	the
mediator
	upon
	finding
	that
	a
	question 	of 	representation	
had
been
	raised.
	And, 	as	
appears 	in 	the 	following
	discussion,
	that
finding
	was
	sufficient
	basis 	for 	the 	withdrawal.
Likewise,
	we
	find
	no
	merit 	in 	the 	contention
	that
	the
regional
	director's
	determination
	on
	May
	2, 	1978,
	that
mediation
	was 	no
	longer 	appropriate
	was
	incorrect
	simply
because
	it
	reversed 	his
	earlier
	determination.
	An
administrative
	body 	has
	the 	inherent
	power
	to 	reconsider
	an
action
	taken 	by	
it
	unless 	precluded 	by	
law.l	
Moreover,
circumstances
	had 	changed; 	the 	regional 	director
	had
	received
	a
valid 	petition
	for
	a
	decertification 	election.
lrn 	re 	Fain 	(1976) 	65 	Cal.App.3d 	376, 	389.
3

The
	latter
	two
	objections 	of
	AFSCME,
	that
	withdrawal
	was
improper 	because
	it
	was
	not
	requested	
by	
a
	party
	and
	because
	it
negated 	the
	District's
	obligation 	to 	negotiate,
	are
	equally
without
	merit.
	Apparently
	AFSCME
	has
	misconceived
	the 	purpose
of
	the
	withdrawal.
	When
	the
	board 	withdraws
	the
	appointment
	of
a
	mediator,
	it
	is
	regulating
	its
	own
	conduct, 	not
	that
	of 	the
parties.
	The
	question
	of
	whether 	or 	under
	what
	circumstances
parties
	may
	negotiate
	pending
	a
	decertification
	election
	is
entirely 	different
	and
	concerns
	the 	Board's
	regulation
	of
	the
conduct 	of 	the
	parties.
	We
	do
	not 	here 	address
	or
	answer
	that
separate 	question.
AFSCME
	argues
	that
	the 	withdrawal 	of 	the
	PERB
	mediator
	had
the
	effect
	of
	an
	"order 	to 	cease
	bargaining,
	by
	vir~ue 	of
.••
withdrawal 	of
	the_necessary
	vehicle
	(mediation) 	for
	its
continuation 	at
	this 	stage."
	This 	argument
	misses 	the
	point,
since
	it
	presumes
	that 	negotiations 	are
	devoid
	of
interruptions.
	In
	fact,
	a
	brief 	hiatus 	in 	negotiations
	is
commonplace.
AFSCME
	also
	misconstrues
	PERB's
	obligation 	to
	provide
	a
mediator. 	Educational
	Employment
	Relations
	Act2	
section
	3548
provides
	that
	PERB
	is
	obliged 	to 	appoint
	and 	pay
	the
	full 	cost
of
	a
	mediator
	at
	the
	request
	of
	either
	the
	employer 	or 	the
exclusive 	representative.
	This
	section 	further 	establishes
that 	the 	purpose 	of
	a
	mediator
	is
	to
	assist
	the
	parties 	"in
2The
	EERA
	is 	codified 	at
	Government 	Code
	sections
	3540
et 	seq. 	Hereafter, 	all 	statutory 	references 	are 	to 	theGovernment 	Code 	unless 	otherwise 	provided.
4

reconciling
	their
	differences
	and
	resolving
	the
	controversy
	on
terms
	which
	are 	mutually
	acceptable."
	It
	charges 	the 	mediator
with
	the
	responsibility
	"to
	persuade 	the
	parties
	to 	resolve
their
	differences
	and
	effect
	a
	mutually
	acceptable
	agreement."
PERB
	is
	also
	required 	to 	resolve 	questions
	of
representation.
	Whereas
	the
	parties
	may 	employ 	a
	mediation
procedure 	other
	than
	that
	provided 	by	
PERB,3	
only
	PERB
	may
resolve
	questions
	of
	representation.4
The
	real
	question 	raised	
by	
this
	appeal
	is
	the 	proper
	role
of
	PERE
	in
	facilitating
	an 	agreement 	between
	the
	employer 	and
an
	exclusive 	representative
	while
	there
	is
	a
	doubt 	as
	to 	the
exclusive
	representative's
	continued
	right
	to
	act
	in
	that
capacity 	raised
	by 	a
	rival
	employee
	organization's
	petition
	for
decertification.
	_We
	conclude
	that
	withdrawal 	of
	a
	PERB
appointed mediator
	is
	proper
	in 	order 	to 	preserve
	a
	neutral
election
	environment.
	If
	PERB
	were
	to
	provide 	continued
mediation 	in 	the 	face 	of
	an
	unresolved
	question
	of
representation,
	it
	might
	well
	inadvertantly 	influence 	the
outcome 	of 	the
	election.
	In
	some
	circumstances 	continued
mediation
	might 	be 	viewed
	as
	an
	implied 	endorsement 	of 	the
3Gov. 	Code
	sec.
	3548
	provides, 	in 	pertinent 	part:
Nothing 	in
	this 	section 	shall
	be
	construed
to 	prevent 	the
	parties
	from
	mutually
agreeing
	upon
	their
	own
	mediation 	procedureand
	in 	the 	event 	of 	such 	agreement,
	[PE.RB]
shall
	not 	appoint
	its
	own
	mediator, 	unless
failure 	to
	do 	so 	would 	be
	inconsistent 	with
the 	policies 	of 	this 	chapter.
4sections 	3540, 	3541.3(c), 	and 	3544.7(a).
5

incumbent
	and
	in 	others
	as
	implicit
	support
	for
	the
	rival 	petitioner.
Such
	a
	result
	may
	be
	avoided
	simply
	by
	suspending
mediation
	pending
resolution
	of 	the .question
	of
	representation.
Once
	again
	we
	must
	caution
	that
	by
	this
	decision
	we
	express
no
	opinion
	on
	the 	proper
	conduct
	of
	employer
	and
	exclusive
	repre-
se~tative
	pending
	a
	representation
	election.
	We
	decide 	only
	that
it
	is
	improper
	for 	the
	Board
	to
	participate
	by
	mediation
	in
negotiations
	once
	a
	rival
	organization
	has
	filed
	a
	valid
	petition
for	
decertification.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	in
	this
case, 	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	decision-of
	the
	San
	Francisco 	regional
	director 	to
withdraw
	the
	appointment
	of
	a
	mediator 	in 	the 	unresolved
negotiations
	between
	the
	San 	Mateo
	County
	Community
	College
District
	and
	the
	American
	Federation 	of
	State,
	County 	and
Municipal
	Employees,
	AFL-CIO,
	Local
	377,
	pending
	resolution 	of
the
	question 	of 	representation 	raised
	by
	the
	decertification 	peti-
tion 	of
	the
	California
	School
	Employees
	Association
	is 	affirmed.
r 	f	
-7'}""
6j/.
	Jerilou
	Cossack
Twohey, 	Merrfl5er
-6-

STAT-e
OF
CAUfORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
Son 	Francisco Regioncl Office
~77 Post St., 9th Floor
an
	Francisco, California 	94108
(41
S)	
557-13.50
May
	2,
	1978
Mr.
	Tom
Matteoli
California
School
Employees
	Association
and
	its
	San
Mateo
	County
Community
College
District
	Chapter
No. 	33
1838
	El
Camino
	Real,
	Suite
201
Burlingame,
	California
	94010
Mr
•.
Glen P. 	Smith
San Mateo County C'.:limllunity
College
District
2015
	Pioneer
Court
San Mateo,
	California
	94403
Mr.
	Michael
	J.
	Dunlap
American
	Federation of
	State,
	County and
Municipal
Employees,
	Local
377
539
	Middlefield
Road
Redwood
	City,
	California
	94063
-
Re: 	San Mateo County Community
	College
District
SF-R-112B; 	SF-D-22
Dear
	Interested Parties:
fl)MUNO
c;. SROWN JR., Go
..
erno
On
April
16,
	1978, 	a
	timely
	decertification petition
~as
	filed
	by
	the 	California
School
	Employees
	Association
and
	its
	San Mateo County Cou:munity
College
	District
Chapter
No.
	33.
	After careful
review of
	this 	petition,
	it
	has 	been determined
that
	the
	showing
	of support submitted
	is 	sufficient.
	Therefore,
	I 	am
directing
a
	decertification election
	to 	proceed
at 	this
	time.
	You
will
	be
	contacted
	by
a
	Board Agent
	in
	the 	immediate
	future
	to
	set
	up
	the
	decertification election.
I 	am
aware
	that
	the mediation procedures
	of 	the
Act have 	been implemented and
that
	a
	mediator has 	been
assigned
	to 	the case. 	In
light
	of the above
	directed
decertification election
now
pending,
	I
	am
withdrawing 	the appointment
	of
	the
mediator
until after
	the decertification is
	resolved.
	It
	is	
my	
determination
that
	the valid decertification petition filed	
by 	the California
	School
	Employees
Association
	and
	its
	San Mateo 	County Community
College
District
	Chapter
	#33 	on
April 16,
	1978 has
	created
a
	question concerning
representation in 	the 	unit,
and,
	therefore, 	mediation
	is
	inappropriate at 	this
	time.

Page 2
5/2/78
An app eal to this decision may be made within ten calendar days of service of
this action, stating the facts upon which the appeal is based and filed with
the Executive Director, Mr. Charles Cole, at 923 12th Street, Suite 201,
Sacramento, California 95814. Copies of any appeal must be served upon all
other parties to this action with an additional copy to the San Francisco
Regional Office.
Very truly yours,
James W. Tamm
Regional Director
JWT:pa
cc: Diana Fivey
State Conciliation