Jefferson Elementary School District (PERB 0135E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEFFERSON 	ELEMENTARY 	SCHOOL 	DISTRICT
Employer,
and
JEFFERSON 	CLASSROOM TEACHERS
ASSOCIATION,
Employee 	Organization,
and
JEFFERSON 	FEDERATION 	OF TEACHERS,
LOCAL 3267, AFT, AFL-CIO,
Employee 	Organization,
APPELLANT.
Case Nos. 	SF-D-12; 	SF-D-41
PERB Decision No. 	135
June 19, 	1980
Appearances: 	William F. 	Kay, 	Attorney for Jefferson School 	District;
Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen, 	Weinberg & Roger) 	for
Jefferson Federation of Teachers, 	Local 	3267 AFT, 	AFL-CIO;
Kirsten L. 	Zerger, 	Attorney 	for Jefferson Classroom Teachers
Association.
Before Gluck, 	Chairperson; 	Gonzales and Moore, 	Members.
DECISION
Petitioner Jefferson Federation of Teachers, 	Local 	3267,
AFT/AFL-CIO 	(hereafter AFT) 	has 	requested 	that 	two 	Board employees
be 	directed to 	testify at 	a hearing 	to 	determine objections 	to 	a
decertification 	election 	held 	in 	the 	Jefferson Elementary 	School
District 	(hereafter District) 	on May 6, 	1980, 	filed by the
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Jefferson Classroom Teachers Association, 	CTA/NEA 	(hereafter CTA),
the 	incumbent 	exclusive representative. 	CTA alleges, 	inter alia,
that 	one of 	the 	Board employees misled certain voters 	in 	the 	course
of 	furnishing 	information 	to 	a District 	teacher 	during a 	telephone
conversation 	on 	election 	day 	and 	that 	the 	other 	Board 	employee
permitted 	certain 	claimed 	election 	conduct 	irregularities 	at 	a
polling 	site 	to 	go 	uncorrected.
Board rule 32150(e)1 provides:
Upon a 	finding of 	the 	Board 	itself 	that 	a 	Board
agent or a Board document 	is 	essential 	to 	the
resolution 	of 	a 	case 	and 	that no 	rational
decision 	of 	the 	Board 	can be 	reached without
such agent 	or 	document 	the 	Board 	itself 	shall
willingly produce 	the 	agent 	or 	document 	if
subpoenaed 	to 	do 	so by any party 	to 	the
dispute.
As 	I understand this 	rule, 	I 	am required to 	decide whether the
hearing 	officer 	can make 	a 	rational 	determination of 	the 	issues
before 	him without 	the 	testimony 	of 	either 	or both of 	the 	Board
employees 	involved. 	The problem I 	face, 	beyond that of speculating
on 	the hearing officer's 	ability to 	render a rational 	decision, 	is
created by my obligation 	to 	abide 	by 	a 	rule 	of 	this 	agency and my
concurrent 	obligation 	to 	refrain 	from deciding the merits 	of a 	case
not before 	the Board 	itself. 	I 	see no way 	to 	determine whether a
rational 	decision 	can be 	issued without 	reaching 	the merits 	on 	the
basis of the record 	to 	date.
1
Codified at California Administrative Code, 	Title 	8,
section 32150(e).
N
1
2

By deciding these matters one way or the other, I would, in 	would, 	in
effect, at least be pointing the hearing officer in the direction r 	in 	the 	direction
that I, myself, would take on the merits. This is true whether s 	is 	true whether
the rule requires that I resolve the subpoena request based on quest 	based on
my ability to issue a "rational decision" or on my belief that the my belief 	that 	the
hearing officer can do so. do 	so.
In brief, I am convinced that rule 32150 (e) is unworkable.unworkable.
Yet, I am required to abide by its mandate. Faced with this dilemma, ith this 	dilemma,
I would require the appearance of both employees as requested by requested by
AFT. 	There were no witnesses to the telephone statement allegedly allegedly
made by Ms. Gelt, one of the Board employees. Only Ms. Gelt, nly Ms . 	Gelt,
therefore, can speak to the matter. 	matter .
In view of my difficulty in dealing with the rule, I find no rule, 	I 	find no
basis for denying the request for a subpoena compelling the pelling 	the
appearance of Ms. Martinez, the Board agent, who allegedly permitteddly permitted
or failed to correct polling place irregularities claimed by CTA, med by CTA,
although witnesses to the circumstances did appear and testify.testify.
Member Gonzales concurrence begins on page 4. e 	4 .
3
By deciding 	these matters 	one way or 	the 	other, 	I
effect, 	at 	least 	be 	pointing 	the 	hearing office
that 	I, 	myself, 	would take 	on 	the merits. 	Thi
the 	rule 	requires 	that 	I 	resolve 	the 	subpoena 	re
my 	ability 	to 	issue 	a 	"rational 	decision" 	or 	on
hearing officer 	can
In brief, 	I 	am convinced 	that 	rule 	32150(e) 	is
made by Ms. 	Gelt, 	one of 	the 	Board employees. 	O
Y~t, 	I 	am required 	to 	abide by 	its 	mandate . 	Faced w
I 	would 	require 	the 	appearance 	of 	both 	employees 	as
AFT. 	There 	were 	no witnesses 	to 	the 	telephone 	statement
therefore, 	can 	speak 	to 	the
In view of my 	difficulty 	in 	dealing with 	the
basis 	for 	denying 	the 	request 	for 	a 	subpoena 	com
appearance 	of Ms. 	Martinez, 	the 	Board agent, who 	allege
or 	failed 	to 	correct 	polling place 	irregularities 	clai
althouah witnesses 	to 	the 	circumstances 	did aooear 	and
I
Member 	Gonzales 	concurrence begins 	on pag
3

Raymond J. Gonzales, Member, concurring: curring:
I consider the testimony of PERB's agents essential toessential 	to
building a complete record on which the Board can reach a can 	reach 	a
rational decision. ision. 	Therefore, pursuant to PERB rule 32150 	32150
(Cal. Admin. Code, tit. 8, sec. 32150), I would issue thed issue the
subpoenas requested by the Jefferson Federation of Teachers. ers.
Kaymove J. Gonzales Member
ORDER
It is ORDERED that Public Employment Relations Board employees employees
Gelt and Martinez appear and testify in the matter of objections toobjections 	to
the results of the decertification election conducted in theconducted 	in 	the
Jefferson Elementary School District to which the Jeffersonthe 	Jefferson
Federation of Teachers, Local 3267, AFT/AFL-CIO and the Jefferson rson
Classroom Teachers Association, CTA/NEA were parties. parties.
PUBLIC EMPLOYMENT RELATIONS BOARD D
Member Moore's dissent begins on page 5. 5.
4
Raymond J. 	Gonzales, 	Member, 	con
I 	consider 	the 	testimony of 	PERB's 	agents
building 	a 	complete 	record on which 	the 	Board
rational 	dec 	Therefore, 	pursuant 	to 	PERB 	rule
(Cal. 	Admin . 	Code, 	tit. 	8, 	sec. 	32150), 	I 	woul
subpoenas 	requested by 	the 	Jefferson 	Federation 	of 	Teach
7ay~;l_ J.
.. 	> 	,,
Gonzales 	Member
ORDER
4
It 	is 	ORDERED 	that 	Public 	Employment 	Relations 	Board
Gelt 	and Martinez 	appear 	and 	testify 	in 	the matter 	of
the 	results 	of 	the 	decertification 	election
Jefferson 	Elementary School 	District 	to which
Federation of 	Teachers, · Local 	3267, 	AFT/AFL-CIO 	and 	the 	Jeffe
Classroom Teachers 	Association, 	CTA/NEA were
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOAR
Member Moore's 	dissent 	begins 	on page

Barbara D. Moore, Member, dissenting: nting:
I find that neither Board agent Gelt nor Board agent Martinez nt 	Martinez
are essential to the resolution of the case and that there is 	and 	that 	there 	is
sufficient evidence in the record from which a rational decision ational 	decision
can be reached. Therefore, pursuant to PERB Rule 32150 (e) , I 32150(e), 	I
would recommend that the Board continue its prior refusal to refusal 	to
issue the subpoenas in question. estion .
By: Barbara D. Moore, Member ember
5
Barbara D. 	Moore, 	Member, 	disse
5
I 	find 	that 	neither 	Board 	agent 	Gelt 	nor 	Board 	age
are 	essential 	to 	the 	resolution of 	the 	case
sufficient 	evidence 	in 	the 	record 	from 	which 	a 	r
can be 	reached. 	Therefore, 	pursuant 	to PERB Rule
J
would 	recommend 	that 	the 	Board 	continue 	its 	prior
issue 	the 	subpoenas 	in 	qu
By : 	Barbara D. 	Moore, 	M