Poway Unified School District (PERB A127E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	TEACHERS
	ASSOCIATION,
Employee
	Organization,
APPELLANT,
and
POWAY
	FEDERATION
	OF
	TEACHERS
LOCAL
	2357,
	AFT/AFL-CIO,
Exclusive
	Representative,
and
POWAY
	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
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Case
	No. 	LA-R-109A
LA-AC-17
PERB
	Order
	No. Ad-127
Administrative
	Appeal
April
	30,
	1982
Appearances:	
James
	M.
	Gattey, 	Attorney 	for
	Poway
	Federation 	ofTeachers 	Local
	2357,
	AFT/AFL-CIO;.
	Michael
	R.
	White
	andA.
	Eugene
	Huguenin,
	Jr.,
	Attorneys 	for
	California
	Teachers
Association.
Before
	Gluck,
	Chairperson;
	Jaeger,
	Moore 	and
	Tovar,
	Members.
DECISION
The
	California
	Teachers
	Association
	(CTA)
	requests
	that
	it
be
	allowed
	to
	participate
	in
	an
	appeal 	of 	the
	Los
	Angeles
Regional
	Director's
	determination
	that
	the
	certification
	of 	the
exclusive 	representative
	in 	the
	Poway
	Unified
	School
	District
(District)
	should
	be 	amended
	to
	reflect
	a
	purported
	coalition
between 	the
	American
	Federation 	of 	Teachers
	(AFT) 	and
	CTA
affliates
	in 	the
	District.
	For 	reasons
	that 	are 	discussed
below,
	we
	accept
	CTA's 	motion 	to 	intervene 	in 	this 	matter
	and

reverse
	the
	regional
	director's
	proposed
	amendment
	of
certification.
FACTS
The 	Poway
	Federation 	of 	Teachers,
	CFT/AFT 	(PFT)
	has
	been
the 	exclusive
	representative
	of
	teachers
	in 	the
	District
	for
about
	six
	years
	and
	is
	party 	to
	a
	collective
	bargaining
agreement
	currently
	in
	effect.
	Throughout
	the 	events
	relevant
here,
	the
	United 	Teachers 	of
	Poway,
	CTA/NEA 	(UTP)
	has 	had
	about
80
	dues-paying
	members.
Pursuant 	to 	discussion
	among
	officers
	of
	both
	of
	these
local
	organizations,
	a
	"Coalition
	Agreement"
	was 	drawn 	up 	and
ratified
	by
	the 	executive
	boards
	of
	UTP
	and
	PFT 	on
November
	30, 	1981.
	The
	agreement
	provided
	that
	a 	new
organization
	was
	to
	be
	formed,
	the
	United 	Educators 	of
	Poway
(UEP),
	which
	was
	to
	be
	affiliated
	with 	both
	AFT
	and 	CTA.l	
It
further
	provided
	that
	individual
	members
	could
	choose
	to
	pay
per
	capita
	dues
	either
	to
	CTA/NEA
	or
	CFT/AFT.
In
	early
	December,
	the
	leadership 	of
	both
	UTP
	and 	PFT
	took
the 	Coalition
	Agreement
	to
	their
	memberships
	and
	campaigned
	for
a
	vote 	favoring 	the
	coalition
	proposal.
	The
	literature
lsection 	II.B 	of 	the
	Coalition
	Agreement
	reads:
UEP
	shall
	be
	affiliated
	with 	the 	California
Teachers 	Association
	and
	the 	NationalEducation 	Association
	and
	the 	CaliforniaFederation 	of 	Teachers, 	the
	American
Federation 	of 	Teachers, 	AFL-CIO. 	:
	,"
2

distributed
	during
	this
	campaign,
	as
	well
	as
	the
	Coalition
Agreement
	itself,
	indicated
	that
	the
	new
	organization
	would 	be
affiliated
	with
	both
	CTA
	and
	CFT
	and
	their
	respective
	national
parent 	organizations.
	For
	example,
	one
	flyer 	indicated
	that
the
	coalition
	would
	"permit
	teachers
	a
	choice
	in
	state
	and
national
	affiliation"
	and
	that
	it
	"[would]
	be 	a 	CFT/AFT
	and
CTA/NEA
	bargaining 	agent."
	Another
	pro-coalition
	document
asserts
	that
	"[w]e
	need
	affiliation
	with 	the
	state
organizations" 	to 	assure
	strength
	in 	the
	legislative
	arena,
financial 	assistance
	in 	the 	event 	of
	a
	strike,
	and
	the
	legal
support
	the
	statewide 	organizations
	could
	provide.
In
a
document
entitled
	"Coalition 	Issues
	and
	Questions,"
proponents 	of 	the
	coalition
	conceded
	that
	"CTA
	has
	been
	against
these
	kinds
	of
	local 	coalitions
	in 	the
	past
	and
	[has]
threatened 	to
	take
	away
	the
	charter
	of
	the
	local 	chapter."
	It
further
	mentioned
	that
	"all
	documents 	have 	been 	checked
	over
	by
an
	attorney
	to 	insure 	that
	they 	are
	consistent
	with 	the
constitutions
	of 	both
	NEA
	and 	AFT," 	and
	that,
	if
	CTA
	opposed
the
	coalition,
	"a
	challenge 	in
	court
	of
	their 	position
	would
take 	place."
In
	a
	secret 	ballot 	election
	held
	on 	December
	17, 	1981, 	the
members
	of 	both
	locals
	voted 	overwhelmingly 	in 	favor 	of 	forming
the
	coalition.
	According
	to
	CTA's
	uncontroverted
	declaration,
it
	was
	not 	aware
	of
	this
	campaign 	or 	the
	December 	17
	election,
although
	it
	received
	an 	anonymous
	call
	from 	a 	Poway
	teacher
	who
was 	concerned 	about 	the
	coalition 	drive.
3

On
	December
	17,
	PFT
	filed
	a
	request;
	pursuant 	to
	PERB
	rul~a
32760
	and
	32761,2	
to
	amend
	the
	certification
	so
	as
	to
	reflect
the
	outcome
	of 	the
	election.
	The 	name
	of 	the
	exclusive
representative
	was
	to
	be
	changed
	to
	"United
	Educators
	of
	Poway
(CFT/AFT
	affiliate,
	CTA/NEA
	affiliate)."
	On
	February
	1,
	1982,
PFT 	amended
	its
	request
	to 	drop 	the
	designation 	of
affiliations.
	On
	February 	8, 	1982,
	the
	Los
	Angeles
	regional
director 	notified
	the
	District
	and 	PFT
	that
	she
	intended
	to
grant
	the
	request
	and 	amend
	the
	certification
	so
	as
	to
designate
	UEP
	as
	the
	exclusive
	representative
	of
	the
	bargaining
unit.
2PERB
	rules 	are 	codified
	at
	8
	California
	Administrative
Code
	Section
	31000
	et.
	seq.
	32760
	and 	32761
	read 	in
	pertinent
part: 
Article
	3. 	Merger,
	Amalgamation
	or
	Transferof
	Jurisdiction
32760.
	It
	is
	the
	policy 	of 	the
	Board
	that
in 	the 	event 	of
	a
	merger, 	amalgamation,
affiliation
	or
	transfer
	of
	jurisdictionaffecting
	an
	exclusive 	representative
recognized 	or
	certified
	under
	EERA,
	SEERA
	or
HEERA,
	the 	exclusive 	representative 	shall
file
	a
	request
	with 	the 	Board,
	utilizing
	the
procedures 	described 	in
	this 	Article
	3.
32761.
	(a) 	A
recognized 	or
	certified
employee
	organization
	shall 	file
	with 	the
regional 	office
	a
	request 	to
	reflect
	a
change
	in 	the
	identity
	of 	the 	exclusive
representative 	in 	the 	event 	of
	a
	merger,amalgamation,
	affiliation
	or
	transfer 	of
jurisdiction 	affecting 	said 	organization.
4

CTA 	takes 	the 	position 	that 	its 	bylaws 	unambiguously
prohibit 	one 	of 	its 	local 	affiliates 	from 	participating 	in 	a
coalition 	of 	this 	sort. 	Section 	6 	of 	CTA's 	bylaws, 	entitled
"Restrictions 	Upon Merger" 	provides:
No 	chapter 	affiliated 	by 	the 	Association 	as
a 	governance 	affiliate 	shall 	enter 	into 	a
merger 	requiring 	affiliation 	with 	any 	other
organization 	or 	the 	payment 	of 	dues 	either
by 	individual 	members 	or 	by 	the 	chapter 	to
any 	other 	organization, 	whenever 	such 	other
organization 	is 	not 	affiliated 	with 	or 	by
the 	Association.
According 	to 	the 	declaration 	of 	CTA, 	neither 	the 	regional
director 	nor 	any 	agent 	of 	PERB 	notified 	it 	of 	the 	existence 	of
PFT's 	request 	for 	the 	amendment 	of 	certification 	during 	the
pendency 	of 	the 	Board's 	investigation.• 	Moreover, 	CTA 	has 	not
received 	an 	application 	for 	affiliation 	from 	UEP.
DISCUSSION
As 	a 	threshold 	matter, 	AFT 	objects 	to 	CTA's 	participation
in 	this 	proceeding. 	It 	claims 	that 	CTA has 	no 	standing 	to
appeal 	the 	regional 	director's 	decision 	since 	it 	is 	not 	the
exclusive 	representative 	of 	bargaining 	unit 	members 	and 	did 	not
particpate 	in 	the 	proceedings 	before 	the 	regional 	director.
PERB 	rule 	32763(a) 	requires 	the 	regional 	director 	to
... 	conduct 	such 	inquiries 	and
investigations 	or 	hold 	such 	hearings 	as
deemed 	necessary 	in 	order 	to 	decide
questions 	raised 	by 	the 	request.
Despite 	the 	fact 	that 	the 	regional 	director 	was 	in 	receipt 	of
both 	the 	"Coalition Agreement" 	purporting 	to 	affiliate 	UEP 	with
5

CTA 	and 	documents 	suggesting 	that 	CTA might 	disapprove 	of 	the
coalition, 	she 	granted 	the 	request 	for 	a 	change 	of
certification 	without 	holding 	a 	hearing 	and 	without 	notifying
CTA. 	We 	find 	that 	the 	existence 	of 	these 	documents 	should 	have
placed 	the 	regional 	director 	on 	notice 	that 	CTA 	was 	a 	necessary
party 	to 	these 	proceedings, 	and 	that 	she 	should 	have 	joined 	CTA
in 	the 	proceeding, 	required 	PFT 	to 	serve 	CTA, 	or 	otherwise
notified 	CTA 	of 	PFT's 	request. 	As 	a 	result 	of 	this 	lack 	of
notice, 	CTA 	was 	unaware 	of 	the 	purported 	merger 	or 	coalition
until 	sometime 	after 	the 	regional 	director's 	decision.
In 	order 	to 	cure 	this 	defect 	in 	the 	regional 	director's
investigation 	of 	PFT's 	request, 	and 	pursuant 	to 	the 	power
vested 	in 	the 	Board 	by 	subsections 	3541.3(m) 	and 	(n),3 	we
grant 	CTA's 	petition 	to 	participate 	in 	these 	proceedings 	and
consider 	its 	brief 	on 	the 	merits.
3subsections 	3541.3 	(m) 	and 	{n) 	state:
The 	Board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties 	...
(m) 	To 	consider 	and 	decide 	issues 	relating
to 	rights, 	privileges, 	and 	duties 	of 	an
employee 	organization 	in 	the 	event 	of 	a
merger, 	amalgamation, 	or 	transfer 	of
jurisdiction 	between 	two 	or 	more 	employee
organizations.
(n) 	To 	take 	such 	other 	action 	as 	the 	board
deems 	necessary 	to 	discharge 	its 	powers 	and
duties 	and 	otherwise 	to 	effectuate 	the
purposes 	of 	this 	chapter 	...
6

Turning
	to
	the
	substantive 	issue
	before 	us,
	we
	note
	that
	we
have 	never
	had
	to
	consider
	a
	request
	for
	a
	change
	of
certification
	in
	which
	a
	party 	affected
	by
	the
	certification
opposes
	it.
	CTA
	alleges 	that
	the
	material
	distributed
	by
supporters
	of 	the
	coalition 	prior
	to
	the
	December
	17,
	1981
election 	"blatantly
	and
	materially
	misrepresented"
	the
	policy
of
	CTA
	with 	regard 	to
	coalitions
	or 	mergers
	and
	falsely
represented
	that
	UEP
	would 	be
	affiliated
	with
	CTA.
	In
response,
	AFT
	claims
	that
	the
	pre-election 	materials
	made
	it
clear
	to
	bargaining
	unit
	members
	that
	CTA
	had
	opposed
	such
coalitions
	in
	the
	past
	and
	might
	try
	to
	revoke
	UTP's
	charter
were
	the
	coalition
	to
	come
	into
	being.
	In
	addition,
	AFT
	argues
that
	the
	term
	"affiliation"
	used
	in 	the
	coalition
	agreement
means 	no 	more
	than 	"the
	ability
	[by
	an 	employee]
	to
	designate
the
	state
	or
	national 	organization
	which
	will
	receive
	a
percentage 	of 	the
	dues
	paid
	to
	UEP."
We
	find
	that
	the 	proposed
	amendment
	of
	certification 	is
inappropriate.
	In 	the
	first
	place,
	the 	request 	of
	PFT,
	as
amended
	to
	drop
	the 	designation 	of
	affiliations,
	does
	not
reflect
	the
	intent
	of 	bargaining
	unit
	members
	in 	voting
	to
alter
	the
	certification.
	The
	ballot
	which
	bargaining
	unit
members 	marked 	when
	voting 	to
	approve 	or
	reject
	the 	merger
indicated 	that
	UEP
	would 	"be 	formed
	according 	to 	the
7

Coalition Agreement 	... 	and 	Constitution." 	That 	agreement
clearly 	indicated 	that 	UEP 	would 	be 	affiliated 	with 	both
CTA/NEA 	and 	CFT/AFT. 	It 	would 	be 	incongruous 	for 	the 	Board 	to
approve 	a 	change 	of 	certification 	which 	so 	clearly 	inconsistent
with 	the 	expressed 	goal 	of 	bargaining 	unit 	members.
Second, 	while 	the 	coalition's 	pre-election 	materials
acknowledged 	the 	possibility 	that 	CTA might 	oppose 	the
coalition, 	they 	failed 	to 	disclose 	the 	fact 	the 	CTA 	had 	never
been 	contacted 	concerning 	the 	possible 	coalition 	and 	that 	CTA's
bylaws 	prohibited 	such 	a 	coalition. 	Moreover, 	these 	materials
give 	the 	impression 	that 	CTA 	could 	be 	forced, 	by 	legal 	action
if 	necessary, 	to 	accept 	the 	coalition 	when 	there 	appeared 	to 	be
no 	such 	~asis 	for 	that 	contention. 	In 	short, 	if 	the
coalition's 	pre-election 	materials 	did 	not 	go 	so 	far 	as 	to
materially 	misrepresent 	CTA's 	policy 	concerning 	mergers, 	they
failed 	to 	inform 	bargaining 	unit 	members 	fully 	as 	to 	available
and 	legally 	relevant 	information.
Finally, 	we 	note 	that, 	even 	if 	the 	request 	for 	the 	change
of 	certification 	had 	not 	been 	amended 	so 	as 	to 	drop 	the
designation 	of 	affiliations, 	the 	contemplated 	change 	would 	not
have 	been 	appropriate. 	The 	Board 	has 	no 	power 	to 	compel 	an
unwilling 	state 	or 	national 	employee 	organization 	to 	accept 	the
affiliation 	of 	a 	local 	exclusive 	representative 	through 	the
amendment 	of 	certification 	process.
8

The
	net
	effect
	of 	the 	misinformation
	was
	that
	the
organization
	proposed
	for
	certification
	by
	the
	regional
director
	was
	not
	what
	the
	employees
	were
	voting
	for.
	It
	would
therefore
	be
	inappropriate
	for 	the
	Board
	to
	grant
	the
	amendment
of
	certification
	in
	these 	circumstances.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record
	in
	this
matter,
	the
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	regional
	director's
	proposed
	amendment
	of
	certification
is
	hereby
	REVERSED
	and 	no 	amendment
	shall
	issue.
I
The
	concurrence
	of
	Members
	Barbara
	D.
	Moore
	and
	Irene
Tovar 	begins
	on
	page 	10.
9

10
Members 	Moore 	and 	Tovar, 	Concurring.
We 	concur 	in 	the 	result 	reached 	in 	the 	lead 	opinion 	and
with 	the 	bulk 	of 	the 	reasoning 	expressed 	therein. 	Thus 	we
agree 	with 	the 	lead 	opinion's 	conclusion 	that 	the 	proposed
amendment 	of 	certification 	should 	not 	be 	approved. 	However,
in 	reaching 	this 	conclusion, 	we 	do 	not 	rely 	on 	the 	notion
that 	voters 	were 	misinformed 	or 	less 	than 	fully 	informed 	as
to 	relevant 	information. 	Rather, 	we 	base 	our 	decision 	on
the 	fact 	that 	the 	coalition 	could 	not 	deliver what 	it
promised 	and 	thus, 	as 	the 	lead 	opinion 	states, 	the 	organization
which 	the 	regional 	director 	proposed 	to 	certify 	could 	not
be 	what 	the 	employees 	were 	voting 	for.
Barbara 	D. 	Moore, 	Member 	Irene 	Tovar, 	Member
10