Napa County Office of Education (PERB 0282E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NAPA COUNTY FEDERATION 	OF 	TEACHERS,
AFT LOCAL 	406 7,
Charging 	Party,
v.
NAPA COUNTY 	OFFICE 	OF EDUCATION,
Respondent.
Case No. 	SF-CE-596
PERB Decision No. 282
February 14, 	1983
Appearances; 	Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& Rogers) 	for 	Napa County Federation of Teachers, 	AFT
Local 4067.
Before Gluck, 	Chairperson; 	Tovar and Jaeger, Members.
DECISION
JAEGER, 	Member: 	This 	case 	is before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on 	appeal by 	the Napa County
Federation of Teachers, 	AFT Local 4067 	(Union) 	of a hearing
officer's 	dismissal of 	its 	charge 	alleging 	that 	the 	Napa County
Office of Education 	(County) 	violated subsections 3543.5(a),
(b) 	and 	(c) 	of 	the Educational Employment Relations Act 	(Act)
by refusing 	to negotiate with 	the Union over 	the wages, 	hours,
and working 	conditions 	of 	a 	newly-created 	position.
The 	hearing 	officer 	found 	that 	the 	County 	had 	no duty 	to
bargain over 	the wages, 	hours, 	and working conditions of a
newly-created 	classification pending 	the 	placement 	of 	that
classification 	in 	the 	bargaining 	unit pursuant 	to 	the 	Public
)
)
)
)
)
)
)
)
)
)
______________ )

Employment Relation Board's unit modification procedures.1
We find that the unfair practice charge was rendered moot by
PERB's resolution of the issue in a representation hearing
resulting 	from 	the union's later 	filing of a unit modification
petition.
PROCEDURAL 	HISTORY
On April 	28, 	1981, 	the County announced the creation of a
new position, 	that of program specialist. 	There were 	to be
three such positions, 	which were 	to be 	filled 	by July 1, 	1981.
After 	the April 	28 	announcement 	and 	several meetings between
the 	parties, 	the 	County 	informed 	the 	Union 	that 	these 	positions
would 	be excluded 	from the 	unit 	as 	supervisory. 	Later, 	the
County 	changed 	its position, 	arguing 	that 	these 	employees 	were
managerial.
On September 	15, 	1981, 	the Union filed an 	unfair 	practice
charge 	alleging 	that 	the 	County violated 	subsections
1PERB 	rules 	are 	codified 	at 	title 	8, 	California
Administrative Code, 	section 31001 et 	seq. 	Prior 	to
September 	20, 	1982, 	the 	rules governing 	unit modification
procedures 	were 	located at 	section 	33260 	- 	33265. 	Former 	PERB
rule 	33261 provided 	in 	relevant part:
(a) 	A recognized 	or 	certified 	employee 	org-
ganization may 	file 	with 	the 	regional office
a petition for 	unit modification 	. 	. 	. 	:
(3) 	To add to 	the unit new
unrepresented 	classifications 	or
positions 	created 	since 	recognition 	or
certification of 	the 	current 	exclusive
representative;
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

3543.5(a), 	(b) 	and 	(d) 	of the Act. 	On October 22, 	1981, 	the
Union amended 	its 	complaint, 	adding 	a subsection 3543.5(c)
allegation 	and 	deleting 	the 	subsection 	3543.5(d) 	violation. 	The
amended 	charge 	alleges 	in 	relevant part:
Prior 	to establishing, 	announcing, 	and
filling 	the 	position of 	"program
specialist," 	the County Office 	of Education
failed 	to 	request 	a meeting 	to 	negotiate
. 	. 	. 	these positions. 	When requested, 	the
County office 	failed 	to 	respond 	in writing
to 	the 	NCFT. 	Upon 	further 	request 	to 	the
County Office of Education 	in meetings with
Associate 	Superintendent 	Edward 	Henderson,
the 	County continued 	to 	refuse 	to meet 	and
negotiate wages, 	hours, 	and working
conditions 	for 	program specialists. 	Program
specialists 	by virtue 	of 	being 	certificated
non-supervisory, 	non-management personnel
remain part of 	the 	recognized 	unit 	in Napa
County Office 	of Education 	until 	the 	PERB
approves 	a 	unit 	modification 	petition 	from
either 	the employer, 	or 	jointly 	from 	the
employer 	and 	exclusive 	representative.
Thus, 	the employer 	has a legal
responsibility 	to meet 	and 	negotiate 	with
the 	exclusive 	representative 	over 	these
issues.
The 	hearing 	officer 	dismissed 	the 	complaint with 	leave 	to
amend, 	finding 	that 	newly-created 	positions 	remain outside 	of
the 	unit 	until 	the 	exclusive 	representative 	files 	a unit
modification 	petition 	and 	the 	positions 	are placed 	in 	the 	unit
following 	a 	representation 	hearing.
On October 	23, 	1981, 	subsequent to 	the 	filing of 	the
above-noted 	unfair 	practice charges, 	the 	Union 	filed 	a unit
modification 	petition 	to 	add 	the 	classification 	of
33

program specialist 	to 	the 	certificated 	unit. 	On
December 24, 1982, after a hearing in Case No. 	SF-UM-217, a
PERB 	hearing 	officer 	ordered 	that 	the 	program 	specialist
classification 	be added 	to 	the certificated 	unit. 	That
decision became 	final on January 	13, 	1983.
DISCUSSION
In Amador 	Valley 	Joint 	Union High 	School 	District
(10/02/78) 	PERB Decision No. 	74 and subsequent decisions, 	the
Board 	established 	a 	standard 	for 	determining 	whether 	an 	issue
has become moot. 	Thus, 	where 	the essential nature of a
complaint 	is 	lost 	due 	to 	the 	superseding 	conduct 	of 	the
parties, 	it 	is rendered moot. 	Amador Valley, 	supra; 	State of
California, 	Department of 	Transportation 	(3/17/81) 	PERB
Decision No. 	159-S. 	However, 	where 	issues persist beyond 	the
specific case, 	despite 	the 	fact 	that 	the 	parties may have
reached 	a private 	resolution of 	the matter, 	the case 	is 	not
rendered 	moot. 	Healdsburg 	Union High 	School 	District 	(6/19/80)
PERB Decision No. 	132.
Applying 	these 	principles 	to 	the 	present 	case, 	we 	find 	that
the 	Union's 	unfair 	practice 	charge 	was 	rendered 	moot 	by 	the
subsequent 	filing 	of 	a 	unit 	modification petition 	and 	the
placement 	of 	the 	program specialist classification 	in 	the
certificated 	unit.
Although 	the 	Union's 	unfair 	practice charge 	is 	ambiguous,
it may be 	fairly 	read 	to allege 	that 	the 	parties' 	recognition
4

agreement 	automatically 	placed 	new 	certificated 	employees 	in
the 	unit 	and, 	that, 	by refusing 	to negotiate over 	the wages,
hours, 	and working 	conditions 	of 	newly 	created certificated
positions, 	the County breached 	this 	agreement 	with 	the 	Union,
thereby violating 	the 	duty 	to 	bargain 	in 	good 	faith. 	The
Union's unit modification petition, 	on the other 	hand, 	is
premised 	on 	the 	theory 	that 	a 	"new 	unrepresented
classification" 	should 	be prospectively placed 	in 	the
bargaining 	unit 	(former 	PERB 	rule 	33261(a)(3)). 	Thus 	the
Union's 	unit modification petition 	assumes 	that 	the 	County had
no 	duty 	to 	negotiate prior 	to 	the 	resolution 	of 	PERB's 	unit
modification procedure. 	The 	Union's 	subsequent 	filing 	of a
unit 	modification 	petition, 	inherently 	inconsistent with 	the
position 	it 	took 	in 	the 	earlier 	unfair 	practice charge, 	and 	the
resolution 	of 	the 	employee placement 	issue 	through 	the
modification proceeding, 	effectively 	renders 	the 	unfair
practice 	charge moot. 	Accordingly, 	it 	is dismissed. 	Amador
Valley, 	supra; 	Department of Transportation, 	supra; Healdsburg,
supra.
ORDER
After 	a 	review of 	the 	entire 	record 	in 	this case, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that 	the 	unfair
practice 	charge 	in Case No. 	SF-CE-596 	is hereby DISMISSED.
Gluck, 	Chairperson, and Tovar, Member, 	joined 	in this Decision.
55

. .
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
NAPA COUNTY FEDERATION OF TEACHERS,
AFT LOCAL 4067,
Charging 	Party,
v.
NAPA COUNTY OFFICE 	OF EDUCATION,
Respondent.
Unfair 	Practice
Case No. SF-CE-596
NOTICE OF REFUSAL TO
ISSUE COMPLAINT AND
DISMISSAL OF CHARGE
WITH LEAVE TO AMEND
NOTICE IS HEREBY GIVEN that no complaint will be issued in
the above-captioned unfair practice charge and that it is
hereby dismissed with leave to amend within twenty (20)
calendar days after service of this Notice pursuant to PERB
regulation, section 32630 (California Administrative Code,
title 8, part III) .
The charge is dismissed on the grounds that it fails to
allege facts sufficient to state a prima facie violation of the
Educational Employment Relations Act (section 3540 et seq. of
the Government Code, hereafter EERA) .
981,
amended on October 26, 1981 and amended again on November 3,
1981. The basic allegation remained unchanged through the
various amendments. In essence, it is contended that the Napa
County Office of Education on or about April 28, 1981 announced
)
)
)
)
)
)
)
)
)
)
_________________ )
NOTICE 	IS 	HEREBY GIVEN 	that 	no 	complaint 	will 	be 	issued 	in
the 	above-captioned 	unfair 	practice 	charge 	and 	that 	it 	is
hereby dismissed 	with 	leave 	to 	amend 	within 	twenty 	(20)
calend~r 	days 	after 	service 	of 	this 	Notice 	pursuant 	to PERB
regulation, 	section 	32630 	(California Administrative Code,
title 	8, 	part 	III).
The 	charge 	is 	dismissed 	on 	the 	grounds 	that 	it 	fails 	to
allege 	facts 	sufficient 	to 	state 	a prima 	facie 	violation 	of 	the
Educational Employment 	Relations 	Act 	(section 	3540 	et 	seq. 	of
the Government Code, 	hereafter 	EERA).
DISCUSSION
This charge originally was filed on September 18, 1	mber 	18, 	1981,
amended 	on October 	26, 	1981 	and 	amended 	again on November 	3,
1981. 	The 	basic 	allegation 	remained 	unchanged 	through 	the
various 	amendments. 	In 	essence, 	it 	is 	contended 	that 	the Napa
County Office 	of 	Education on or 	about 	April 	28, 	1981 	announced
DISCUSSION
This 	charge 	originally 	was 	filed 	on 	Septe

three vacancies 	for 	the position of 	"program specialist."
These 	newly created positions were 	to come 	into 	existence on
July 1, 	1981. 	Shortly after 	the creation of 	the positions was
announced, 	the Napa County Federation of Teachers discovered
that 	the employer 	intended 	to exclude 	the positions 	from the
negotiating 	unit. 	The Federation is 	the exclusive
representative of 	the employer's certificated 	employees.
Initially, 	the charge alleges, 	the employer contended that
these positions 	should 	be 	excluded 	from the 	unit 	as being
supervisory. 	Later, 	however, 	the employer changed its position
to the contention that 	the positions 	should 	be excluded 	as
being management. 	This 	change 	in position occurred after 	the
Federation met with 	the 	employer 	and 	contested 	the designation
of 	the program specialists as supervisors. 	It 	is alleged 	that
the wages, 	hours and working conditions of 	the three employees
have 	been fixed 	unilaterally by the 	employer 	without respect 	to
the contract between the parties. 	Furthermore, 	the Federation
continues, 	the employer 	has refused to negotiate about 	the
wages, 	hours and working conditions 	for 	the three employees.
The Federation contends 	that by 	these actions 	the 	employer
has violated Government Code section 3543.5(a), 	(b) 	and 	(c).
The Federation bases 	this contention on 	the 	theory 	that 	it 	is
the representative of all certificated 	employees. 	It disputes
the 	employer's 	contention 	that 	the program specialist position
N	
2

is either supervisory or managerial and avers 	that 	the position
therefore 	must 	be 	in 	the 	negotiating 	unit.1
Under 	these allegations, 	it is concluded that the employer
could 	not 	have 	violated 	the Educational Employment Relations
Act by unilaterally setting 	the wages, 	hours and working
conditions 	for program specialists 	because 	the position never
was 	in 	the negotiating 	unit. 	The position is newly created and
could not have 	been within the contemplation of 	the parties at
the time 	they established 	the unit. 	PERB 	rules 	for 	unit
modifications provide that an employee organization may file a
unit modification petition:
(2) 	To add to the unit classifications
created 	since 	recognition or 	certification
of 	the 	current 	exclusive 	representative.2
The rules also provide that an employee organization, 	an
employer 	or 	both 	jointly may file a 	unit modification petition:
(1) 	To delete classifications no longer 	in
existence or which by virtue of changes 	in
circumstances 	are no longer 	appropriate 	to
the 	established 	unit.3
The 	rules further provide that:
1In 	a separate proceeding, 	the Federation on October 	23,
1981 	filed a petition for 	unit modification with 	the PERB's
San Francisco Regional Office. 	This petition asks 	that 	the
position of program specialist be added to the unit. 	In that
petition, 	the Federation states that the position of program
specialist was created as a result of legislation enacted 	in
1980.
2Cal. Admin. Code, title 8, section 33261(a)(2).
3Cal. Admin. Code, title 8, section 33261(b)(l).
W	
3

No unit modification may be made by any
procedure other 	than 	that 	contained 	in 	this
Article.4
The rules 	thus set out a procedure for 	changing 	the 	status
quo. 	If new jobs 	have been created, 	they can be added to the
unit only by a petition for 	unit modification. 	If existing
jobs are no longer 	appropriate for 	the unit, 	they can be
removed only by a petition for 	unit modification. 	Newly
created positions 	remain outside 	the 	unit until 	the exclusive
representative positions 	for 	them and 	the PERB 	brings 	them into
the unit 	through 	the unit modification procedure. 	Similarly,
existing jobs remain within 	the unit 	until 	the PERB 	removes
them upon the request of a party or parties.
Thus 	the employer 	had no obligation to meet 	and negotiate
about the position of program specialist. 	It was a newly
created position and 	it remains outside 	the unit 	until 	the
Federation petitions for 	it and the PERB has concluded 	that 	the
position belongs 	in the unit. 	An employer 	has 	unfettered
authority to set wages, 	hours and working conditions for
positions not within the negotiating unit. 	See generally,
Chemical Workers v. Pittsburgh Plate Glass Co. 	(1971) 	404 U.S.
157 	[78 LRRM 2974]. 	For 	these reasons, 	the present charge must
be dismissed.
4Cal. Admin. Code, title 8, section 33260.
A	4

This 	refusal 	to 	issue a complaint and dismissal of 	the
charge with 	leave 	to amend 	is made pursuant 	to California
Administrative Code, title 8, section 32630(a). 	If charging
party chooses 	to amend, 	the amended charge must be filed with
the San Francisco Regional Office of 	the PERB within 	twenty
(20) 	calendar days 	(section 32630(b)). 	Such amendment must be
actually 	received at 	the San Francisco Regional Office of 	the
PERB before the close of business 	(5:00 p.m.) 	on November 	30,
1981, 	in order to be timely filed 	(section 32135).
If charging party chooses not to amend 	the charge, 	it may
obtain review of 	this refusal 	to 	issue complaint and dismissal
of 	the charge by filing 	an appeal 	to 	the Board 	itself within
twenty 	(20) 	calendar days after 	service of 	the Notice 	(section
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 November 30, 	1981, 	in order 	to be timely filed.
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 	(section 32630(b)). 	The appeal
must be 	accompanied by proof of 	service 	upon all parties
(sections 32135, 32142 and 32630(b))).
Dated: 	November 	9, 	1981 	WILLIAM P. 	SMITH
Chief Administrative Law Judqe
Ronald E. 	Blubaugh
Hearing Officer
5