Solano Community College District (PERB 0166E)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMEN'I'
	RELATIONS
	BOARD
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SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION,
	Local 	614,
	AFL-CIO,
Charging
	Party,
v.
SOLANO
	COMMUNITY
	COLLEGE
	DISTRICT,
Respondent.
Case
	No.
	SF-CE-475
PERB
	Decision
	No.
	166
June
	30,
	1981
Appearances:	
Stewart
	Weinberg
	(Van
	Bourg,
	Allen,
	Weinberg	
&
Roger), 	Attorney 	for 	Service
	Employees
	International
	Union,
Local
	614,
	AFL-CIO;
	and
	Dr.
	A.
	Curt
	Steffen, 	Professional
Consulting
	Services
	for
	Solano
	Community
	College
	District.
Before
	Moore,
	Jaeger,
	and
	Tovar,
	Members.
DECISION	DECISION
This	
case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board)
	on 	an
	appeal
	filed
	by
	Service
Employees
	International
	Union, 	Local 	614,
	AFL-CIO
(hereafter
	SEIU)
	of 	the 	hearing
	officer's
	dismissal 	of
	its
unfair 	practice
	charge 	with
	prejudice.
	That 	Dismissal 	Without
Leave
	to
	Amend,
	issued
	August
	13, 	1980,
	is
	attached 	hereto	
and
incorporated
	by
	reference 	herein.
The
	Board 	has 	considered 	the 	record 	as
	a
	whole
	in
	light
	of
SEIU's 	appeal
	and
	hereby
	affirms 	the 	hearing
	officer's
	findings
of 	fact
	and
	conclusions 	of
	law.
SERVICE EMPLOYEES INTERNATIONAL
UNION, Local 614, AFL-CIO,
Charging Party, 	Case No. SF-CE-475
v . 	PERB Decision No. 166
SOLANO COMMUNITY COLLEGE DISTRICT, June 30, 1981
Respondent.
Appearances: Stewart Weinberg (Van Bourg, Allen, Weinberg &
Roger ) , Attorney for Service Employees International Union,
Local 614, AFL-CIO; and Dr. A. Curt Steffen, Professional
Consulting Services for Solano Community College District.
Before Moore, Jaeger, and Tovar, Members.
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on an appeal filed by Service
Employees International Union, Local 614, AFL-CIO
(hereafter SEIU) of the hearing officer's dismissal of its
unfair practice charge with prejudice. That Dismissal Without
Leave to Amend, issued August 13, 1980, is attached hereto and
incorporated by reference herein.
The Board has considered the record as a whole in light of
SEIU's appeal and hereby affirms the hearing officer's findings
of fact and conclusions of law.

ORDER	ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record
	in
	this
case,
	the
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	unfair
	practice
	charge
	in
	Case
	No.
	SF-CE-475
	filed	
by
Service
	Employees
	International
	Union,
	Local 	614,
	AFL-CIO
against
	Solano
	Community
	College
	District 	is
	hereby
	DISMISSED
with
	prejudice
	and
	without 	leave 	to
	amend.
PER CURIAM
2
PER CURIAM
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
The unfair practice charge in Case No. SF-CE-475 filed by
Service Employees International Union, Local 614, AFL-CIO
against Solano Community College District is hereby DISMISSED
with prejudice and without leave to amend.
2

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STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS	
BOARDJ
SERVICE
	EMPLOYEES
	INTERNATIONAL
UNION,
	Local
	614,
	AFL-CIO,
Charging
	Party,
v.
SOLANO
	COMMUNITY
	COLLEGE
	DISTRICT,.
Respondent.
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___________________
)
UNFAIR PRACTICE
	CHARGE
Case
	No.
	SF-CE-475
DISMISSAL WITHOUT
LEAVE
	TO AMEND
Notice
	is
	hereby
	given
	that
	the
	a::::::-;e-captioned
	unfair
practice
	charge
	is
	dismissed 	without	
:22:--Je	
to
	amend.
The
	charge
	alleges
	the
	employe=
	=~:?Ortea
	CSEA
	and
	its
Chapter
	1211
	(hereafter
	CSEA)
	in
	fa~c=
	of
	SEIU,
	Local 	614,
AFL-CIO
	(hereafter
	SEIU) 	by
	meetin~
	and
	negotiating 	with
	CSEA
in 	the 	face 	of
	a
	question 	concerning
	representation 	raised	
by
two
	representation 	petitions 	filed	
by	
SEIU.
	Charging
	party
further 	alleges
	it
	represents
	a
	majority
	of 	the
	employees
	in
the 	bargaining
	unit.
	Charging
	party
	contends
	that 	the
respondent's 	actions 	in
	con::inuing
	to
	meet 	and
	negotiate 	with
CSEA
	violate 	section
	3543. 5 (a) , 	(b) 	and 	(d) •
The 	two
	representation 	petitions 	in 	question 	are
	SF-D-66
PUBLIC EMPLOYMENT
RELATIONS BOARD
HEADQUARTERS
OFFICESTATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, Local 614, AFL-CIO,
Charging Party , 	UNFAIR PRACTICE CHARGE
Case No. SF-CE-475
SOLANO COMMUNITY COLLEGE DISTRICT,
DISMISSAL WITHOUT
Respondent. 	LEAVE TO AMEND
Notice is hereby given that the above-captioned unfair
practice charge is dismissed without leave to amend.
The charge alleges the employer supported CSEA and its
Chapter #211 (hereafter CSEA) in faves of SEIU, Local 614,
AFL-CIO (hereafter SEIU) by meeting and negotiating with CSEA
in the face of a question concerning representation raised by
two representation petitions filed by SEIU. Charging party
further alleges it represents a majority of the employees in
the bargaining unit. Charging party contends that the
respondent's actions in continuing to meet and negotiate with
CSEA violate section 3543.5(a) , (b) and (d) .
The two representation petitions in question are SF-D-66

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and 	SF-R-394B. 	San 	Francisco 	regional 	office 	records 	reflect
that 	SEIU's 	decertification 	petition 	(SF-D-66) 	was 	filed 	on
March 	24, 	1980, 	during 	the 	120-90 	day 	period 	immediately
proceeding 	the 	expiration 	of 	the 	existing 	contract 	between 	CSEA
and 	the District. 	The 	decertification 	petition 	sought 	a 	unit
of 	office, 	technical 	and 	paraprofessional 	employees. 	Since 	the
petition 	sought 	to 	carve 	out 	a 	new 	unit 	from 	the 	then
established 	unit 	of 	all 	classified 	employees, 	the 	Regional
Director 	determined 	that 	the 	petition 	should 	have 	been 	filed 	as
a 	new 	request 	for 	recognition 	pursuant 	to PERB 	Regulation
33050, 	and, 	on 	April 	15, 	1980, 	he 	dismissed 	the 	petition. 	That
administrative 	determination was 	appealed 	and 	subsequently
upheld by 	the 	Board 	its elf 	in 	PERB 	Order 	t'1o. 	AD-94, 	(July 	11,
1980.) 	The 	decertification 	petition, 	therefore, 	created 	no
question 	concerning 	representation 	and 	it 	was 	not 	improper 	for
the 	District 	and.CSEA 	to 	continue 	to 	meet 	and 	negotiate 	in 	the
face 	of 	the 	decertification 	petition.
The 	second 	petition 	(SF-R-394B) 	was 	a_request 	for
recognition 	seeking 	a 	unit 	described 	as 	11 all 	classified 	'white
collar' 	and 	technical 	and 	paraprofessional 	positions". 	It 	was
essentially 	the 	sar::.e 	unit 	petitioned 	for 	by 	the 	above 	mentioned
decertification 	petition 	(SF-D-66). 	San Francisco 	regional
office 	records 	reflect 	that 	the 	request 	for 	recognition 	was
mailed 	by 	SEIU 	on June 	1, 	1980 	and 	received 	by 	PERB 	on June 	3,
1980.
and SF-R-394B. San Francisco regional office records reflect
that SEIU's decertification petition (SF-D-66) was filed on
March 24, 1980, during the 120-90 day period immediately
proceeding the expiration of the existing contract between CSEA
and the District. The decertification petition sought a unit
of office, technical and paraprofessional employees. Since the
petition sought to carve out a new unit from the then
established unit of all classified employees, the Regional
Director determined that the petition should have been filed as
a new request for recognition pursuant to PERB Regulation
33050, and, on April 15, 1980, he dismissed the petition. That
administrative determination was appealed and subsequently
upheld by the Board itself in PERB Order No. AD-94, (July 11,
1980.) The decertification petition, therefore, created no
question concerning representation and it was not improper for
the District and CSEA to continue to meet and negotiate in the
face of the decertification petition.
The second petition (SF-R-394B) was a request for
recognition seeking a unit described as "all classified 'white
collar' and technical and paraprofessional positions". It was
essentially the same unit petitioned for by the above mentioned
decertification petition (SF-D-66). San Francisco regional
office records reflect that the request for recognition was
mailed by SEIU on June 1, 1980 and received by PERB on June 3,
1980.

A negotiated 	agreement 	between CSEA 	and 	the 	District,
covering 	the 	employees 	in 	the 	then 	existing 	CSEA wall 	to 	wall
unit, 	was 	in 	effect 	from 	July 	1, 	1977 	to 	and 	including June 	30,
1980. 	This 	created 	an 	insulation 	period 	from 	April 	1, 	1980
through 	June 	30, 	1980, 	during 	which 	CSEA 	and 	the 	District
should 	have 	been 	permitted 	to 	negotiate 	free 	from 	the 	threat
of 	further 	decertification 	petitions 	or- requests 	for
recognition. 1
Since 	the 	SEIU 	request 	for 	recognition was 	filed 	during
that 	insulation 	period 	it 	would 	normally 	be 	untimely on 	its
face. 	This 	case 	is, 	however, 	complicated 	by 	an 	additional
factor. 	San Francisco 	regional 	office 	=ecords 	reflect 	that 	on
March 	24, 	1980 	a 	valid 	and 	timely 	=~=:-..:~..=-t 	for 	recognition 	was
filed _by 	the 	International Union 	o= 	S?erating 	Engineers,
Stationary Local 	No. 	39, 	AFL-CIO 	(hereafter 	Operating
Engineers) 	seeking 	to 	carve 	out 	a 	unit 	of 	opecations 	and
support 	services 	employees 	from 	CSEA's 	existing 	wall 	to 	wall
unit. 	On May 	16, 	1980, 	CSEA, 	the District, 	and Operating
Engineers 	agreed 	to 	hold 	an 	election 	in 	the 	requested
operations 	and 	support 	se~vices 	unit. 	CSEA 	disclaimed 	any
interest 	in 	representing 	t~ose 	employees. 	The 	parties 	agreed
lneluxe 	Metal 	Furniture Co. 	(1958) 	121 	NLRB 	995 	(42 	LRRM
14 701
A negotiated agreement between CSEA and the District,
covering the employees in the then existing CSEA wall to wall
unit, was in effect from July 1, 1977 to and including June 30,
1980. This created an insulation period from April 1, 1980
through June 30, 1980, during which CSEA and the District
should have been permitted to negotiate free from the threat
of further decertification petitions or requests for
recognition.
Since the SEIU request for recognition was filed during
that insulation period it would normally be untimely on its
face . 	This case is, however, complicated by an additional
factor. San Francisco regional office records reflect that on
March 24, 1980 a valid and timely request for recognition was
filed by the International Union of Operating Engineers,
Stationary Local No. 39, AFL-CIO (hereafter Operating
Engineers) seeking to carve out a unit of operations and
support services employees from CSEA's existing wall to wall
unit. On May 16, 1980, CSEA, the District, and Operating
Engineers agreed to hold an election in the requested
operations and support services unit. CSEA disclaimed any
interest in representing those employees. The parties agreed
1Deluxe Metal Furniture Co. (1958) 121 NLRB 995 [42 LRRM
1470]

to 	an 	election, 	the 	choices 	on 	the 	ballot 	being 	Operating
Engineers 	and 	No 	Re9resentation, 	to 	be 	held May 	30, 	1980.
Operating 	Engineers 	received 	a 	majority of 	the 	valid 	votes
counted 	and 	was 	certified 	as 	the 	exclusive 	representative 	for
the 	Operations 	and 	Support 	Services 	Unit 	as 	of 	June 	10, 	1980.
Since 	the 	wall 	to 	wall 	unit 	covered 	by 	the 	then 	existing
contract 	was 	being 	carved 	up 	pursuant 	to 	the Operating
Engineers 	timely 	request 	for 	recognition, 	it 	could 	be 	argued
that 	CSEA 	had 	no 	contract 	bar 	protection 	for 	the 	residual 	unit
still 	covered 	by 	the 	existing 	contract. 	If, 	however, 	an
exclusive 	representative 	was 	forced 	to 	expose 	its 	entire 	unit
to 	challenge 	by 	otherwise 	untimely 	petitions 	merely 	by 	agreeing
to 	an 	election 	in 	a 	portion 	of 	the 	wall 	to 	wall 	unit 	sought 	by
a 	timely 	request 	for 	recognition, 	it 	would 	be 	discouraged 	from
settling 	even 	valid 	carve 	out 	requests 	in 	order 	to 	protect 	the
remainder 	of 	their 	unit. 	This 	would 	be 	contrary 	to 	the
purposes 	of 	the 	Act. 	It 	is 	therefore 	concluded 	that 	CSEA 	does
not lose 	all 	contract 	bar 	protection 	for 	the 	residual 	unit
simply 	because 	it 	agreed 	to 	an 	election 	in 	a 	unit 	carved 	out 	by
a 	valid 	request 	for 	recognition.
The 	SEIU 	request 	for 	recognition 	(SF-R-394B) 	was
accordingly 	barred 	by 	the 	contract 	between 	CSEA 	and 	the
District 	and 	created 	no 	question 	concerning 	representation.
Under 	the 	circumstances, 	it 	was 	not 	improper 	for 	CSEA 	and 	the
District 	to 	continue 	to 	meet 	and 	negotiate 	in 	the 	face 	of 	the
untimely 	request 	for 	recognition 	filed 	by 	SEIU.
to an election, the choices on the ballot being Operating
Engineers and No Representation, to be held May 30, 1980.
Operating Engineers received a majority of the valid votes
counted and was certified as the exclusive representative for
the Operations and Support Services Unit as of June 10, 1980.
Since the wall to wall unit covered by the then existing
contract was being carved up pursuant to the Operating
Engineers timely request for recognition, it could be argued
that CSEA had no contract bar protection for the residual unit
still covered by the existing contract. If, however, an
exclusive representative was forced to expose its entire unit
to challenge by otherwise untimely petitions merely by agreeing
to an election in a portion of the wall to wall unit sought by
a timely request for recognition, it would be discouraged from
settling even valid carve out requests in order to protect the
remainder of their unit. 	This would be contrary to the
purposes of the Act. It is therefore concluded that CSEA does
not lose all contract bar protection for the residual unit
simply because it agreed to an election in a unit carved out by
a valid request for recognition.
The SEIU request for recognition (SF-R-394B) was
accordingly barred by the contract between CSEA and the
District and created no question concerning representation.
Under the circumstances, it was not improper for CSEA and the
District to continue to meet and negotiate in the face of the
untimely request for recognition filed by SEIU.

)
Charging
	party
	has
	failed 	to
	allege
	supportive
	facts
tending 	to
	show
	prima
	facie 	violations
	of 	Sections
	3543.S{a)
(b)
	and
	(d).
	Thus,
	it
	is
	concluded
	that
	unfair
	practice
	charge
No.
	SF-CE-475
	is
	dismissed 	without
	leave
	to
	amend.
This
	dismissal
	without
	leave 	to
	amend
	is
	made
	pursuant
	to
PERB
	Regulation 	32630(a).
	The
	charging
	party
may
obtain
	review
of 	the
	dismissal
	by
	fiiing
	an
	appeal
	to
	the
	Board
	itself
	within
twenty
	(20)
	calendar
	days
	after
	service
	of
	this
	Notice.
	(PERB
Regulation
	32630(b).)
	Such
	appea~ 	must
	be
	actually 	received
	by
the
	Executive
	Assistant 	to
	the
	Board
	before 	the 	close 	of
business
	(5:00
	p.rn.}
	on 	September
	2r
	1980
	in 	order
	to
	be
timely
	filed.
	(PERE
	Regulation
	32135.:
	Such
	appeal 	must
	be
	in
writing,
	must
	be
	signed
	by
	the
	cha:~:.::;
	party
	or
	its
	agent,
	and
must
	contain 	the 	facts
	and
	arg~~ents
	upon 	which
	the 	appeal
	is
based.
	(PERB
	Regulation
	32630 (b)
-~
	The
	appeal
	must
	be
accompanied	
by 	proof
	of 	service
	upon
	all
	parties.
	{PERB
Regulations
	32135, 	32142, 	and
	32630(b}
.)
DATED: August 13, 1980	DATED:
	August
	13,
	1980 
WILLIAM
	P.
	SMITH,
	Chief
ADroinistrative
	Law
	Judge
JAMES W. 	TAHL'1
Hearing 	Officer
Charging party has failed to allege supportive facts
tending to show prima facie violations of Sections 3543.5(a)
(b) and (d) . Thus, it is concluded that unfair practice charge
No. SF-CE-475 is dismissed without leave to amend.
This dismissal without leave to amend is made pursuant to
PERB Regulation 32630 (a) . The charging party may obtain review
of the dismissal by filing an appeal to the Board itself within
twenty (20) calendar days after service of this Notice. (PERB
Regulation 32630 (b) .) Such appeal must be actually received by
the Executive Assistant to the Board before the close of
business (5:00 p.m.) on 	September 2, 1980 in order to be
timely filed. 	(PERS Regulation 32135. Such appeal must be in
writing, must be signed by the charging party or its agent, and
must contain the facts and arguments upon which the appeal is
based. (PERB Regulation 32630 (b) .) The appeal must be
accompanied by proof of service upon all parties. (PERB
Regulations 32135, 32142, and 32630(b) .)
WILLIAM P. SMITH, Chief
ADministration Law Judge
JAMES W. TAMM
Hearing Officer