Sierra Sands Unified School District (PERB 0977E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FERNELEY H. 	ROBERTS,
Charging 	Party,
v.
SIERRA SANDS 	UNIFIED SCHOOL
DISTRICT and DESERT AREA TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondents.
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) 	Case No. 	LA-CE-3140
PERB Decision No. 	977
February 	23, 	1993
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Appearances; 	National Right 	to Work Legal 	Defense 	Foundation,
Inc. 	by W. 	James Young, 	Attorney, 	for Ferneley H. 	Roberts;
California Teachers Association by Charles 	R. 	Gustafson,
Attorney, 	for Desert Area Teachers Association, 	CTA/NEA.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by Ferneley
H. 	Roberts 	(Roberts), 	to a PERB administrative law judge's 	(ALJ)
proposed decision 	(attached hereto). 	The ALJ found that 	the
Sierra Sands Unified School 	District 	(District) 	violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA)1 by
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals 	on
employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise 	to
interfere with, 	restrain, 	or coerce employees
because 	of 	their exercise 	of 	rights 	guaranteed by

discriminating 	against 	Roberts 	and 	his 	colleagues 	when 	they were
denied 	the 	opportunity to use 	employee mailboxes 	to 	distribute
leaflets 	in opposition to the 	imposition of agency fees. 	In
refusing 	to 	set 	aside 	the agency shop 	election result, 	the ALJ
found no probable 	or actual 	impact 	on the 	employee vote 	as 	a
result 	of 	the violation. 	The ALJ concluded that 	Sierra Sands
Concerned Teachers 	(Concerned Teachers) 	is 	not 	an employee
organization within the meaning of 	EERA and, 	therefore, 	dismissed
the allegation that 	denial 	of 	the use 	of mailboxes violated EERA
section 3543.5(b).
this 	chapter. 	For purposes of 	this subdivision,
"employee" 	includes 	an applicant 	for employment 	or
reemployment.
The Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	Roberts'
exceptions 	and the Desert Area Teachers Association, 	CTA/NEA's
response 	thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.2
CHARGING 	PARTY'S 	EXCEPTIONS
On appeal, 	Roberts 	contends 	that 	the ALJ erred when he
concluded 	that 	Concerned Teachers 	is 	not 	an employee 	organization
under 	EERA and 	dismissed 	the 	alleged 	EERA 	section 	3543.5(b)
violation.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2Accordingly, Roberts' 	request 	for oral 	argument before 	the
Board 	is 	denied.
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Roberts 	further asserts 	that 	the ALJ erred by 	refusing 	to
set 	aside 	the 	agency shop election 	result. 	Roberts urges 	the
Board 	to 	revise 	its 	rule 	that 	an election 	should not 	be 	set 	aside
unless 	a probable 	or actual 	impact 	on the 	employee vote has 	been
shown as 	a result 	of an unfair practice. 	Roberts argues 	that an
election 	should be voided unless 	the 	party which 	committed 	the
unfair practice 	can establish 	that 	the 	election 	result 	was 	not
impacted by 	the 	unlawful 	activity.
DISCUSSION
With 	regard 	to 	the 	dismissal 	of 	the 	alleged EERA
section 3543.5(b) 	violation, 	the evidence 	clearly establishes
that 	Concerned Teachers 	was 	formed 	to 	campaign against 	the
imposition of agency fees. 	The decision to 	impose agency fees 	is
a matter 	decided by 	the members 	of 	a bargaining unit 	which
effects 	the 	internal 	dealings 	of 	the union. 	Roberts has not
shown 	that 	Concerned Teachers 	had as 	a primary purpose,
representation of its members in their relations with the District.
Therefore, 	this exception is rejected.
Roberts 	further urges 	the Board to revise 	its well-
established 	rule 	that 	an election 	should not be 	set 	aside unless
a probable 	or actual 	impact 	on 	the 	employee vote 	has 	been shown
as 	a result 	of 	the unfair practice. 	Roberts argues 	that an
election 	should be voided unless 	the 	party which 	committed 	the
unfair practice 	can establish 	that 	the 	election result 	was 	not
impacted by 	the 	unlawful 	activity.
As 	discussed 	in the 	"Remedy" 	section of 	the ALJ's 	proposed
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decision, 	PERB has 	determined 	it will 	not 	overturn an election
result where 	it 	is unlikely the 	outcome was 	affected by the
unlawful 	conduct. 	Roberts provides no legal basis 	for revision
of 	this 	long established Board precedent. 	Therefore, 	the Board
rejects 	this 	exception.
ORDER
Upon the 	findings 	of 	fact 	and conclusions 	of 	law and the
entire 	record in this 	case, 	it 	is 	found that 	the Sierra Sands
Unified School District 	(District) 	violated section 3543.5(a) 	of
the Educational 	Employment Relations Act 	(EERA). 	The District
violated 	EERA when 	it 	prohibited 	teachers 	opposed 	to 	the
imposition of 	agency 	fees 	from using 	teacher mailboxes 	to
distribute 	flyers. 	Because 	the action had the 	effect 	of
interfering with the 	right 	of unit members 	to engage 	in protected
conduct, 	the mailbox prohibition was 	a violation of 	EERA section
3543.5(a).
Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST 	FROM:
Regulating 	employee 	use 	of 	teacher mailboxes 	in a
manner 	that 	discriminates 	against 	those 	who wish 	to 	engage 	in
protected 	conduct.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to 	reconsideration, 	post 	at
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all 	work 	locations 	where 	notices 	to 	employees 	customarily are
placed, 	copies 	of 	the Notice attached hereto as 	an Appendix. 	The
Notice must 	be 	signed by an authorized agent 	of 	the District,
indicating 	that 	the District 	will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be taken to
ensure that 	the Notice is not 	reduced in size, 	altered, 	defaced
or 	covered with any 	other material.
2. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	Los Angeles 	Regional 	Director of
the 	Public 	Employment 	Relations 	Board 	in accord with 	the
director's 	instructions.
Chair Blair and Member Carlyle 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	LA-CE-3140,
Ferneley H. 	Roberts v. 	Sierra Sands Unified School District 	and
Desert Area Teachers Association. 	CTA/NEA, 	in which all parties
had the 	right 	to participate, 	it has been found that 	the Sierra
Sands 	Unified School 	District 	(District) 	has violated the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a). 	The District violated this provision of 	the
EERA when 	it 	prohibited 	teachers 	opposed 	to 	the 	imposition of
agency 	fees 	from using 	teacher mailboxes 	to distribute 	flyers.
This 	action was 	discriminatory because 	the 	District 	previously
had permitted 	employees 	to place 	other materials 	unrelated 	to
school 	district 	activities 	in teacher mailboxes.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will 	abide by the 	following. 	We will:
CEASE AND DESIST 	FROM:
Regulating 	employee 	use 	of 	teacher mailboxes 	in a
manner 	that 	discriminates 	against 	those who wish 	to 	engage
in protected 	conduct.
Dated: 	SIERRA SANDS 	UNIFIED
SCHOOL 	DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST NOT
BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
.,,

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FERNELEY H. 	ROBERTS,
Charging 	Party,
v.
SIERRA SANDS 	UNIFIED 	SCHOOL
DISTRICT and DESERT AREA TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondents.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3140
PROPOSED DECISION
(10/27/92)
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Appearances; 	W. 	James Young, 	National Right 	to Work Legal
Defense Foundation, 	Inc., 	Attorney for Ferneley H. 	Roberts; 	Phil
Lancaster, 	Schools Legal 	Service, 	for the Sierra Sands Unified
School District; 	Charles R. 	Gustafson, 	California Teachers
Association, 	Attorney 	for the Desert Area Teachers Association,
CTA/NEA.
Proposed Decision by Ronald Blubaugh, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
A teacher 	contends 	here 	that 	an agency 	fee 	election 	should
be 	invalidated because 	he 	and 	others 	were 	prevented 	from using
teacher mailboxes 	to distribute 	opposing 	leaflets. 	The 	teacher
was 	a 	leader of 	a group attempting 	to defeat 	agency 	fees. 	The
teachers' 	union, 	which supported agency fees, 	replies that 	the
teacher and his 	associates 	were 	not 	entitled 	to use 	the
mailboxes. 	But even if 	they were, 	the union continues, 	the
complaining 	teacher has 	not 	demonstrated 	that 	denying him use 	of
the mailboxes 	affected the 	election 	result.
Ferneley H. 	Roberts 	commenced this 	action on November 4,
1991, 	by 	filing an unfair practice 	charge against 	the 	Sierra
Sands Unified School District 	(District). 	The general 	counsel 	of
the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	followed on
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

March 	3, 	1992, 	with a 	complaint 	against 	the District 	alleging
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violations 	of Government 	Code 	section 3543.5(a) 	and 	(b).
The 	complaint 	alleges 	that 	on or about 	October 	1, 	1991, 	the
District 	superintendent 	denied 	the 	use 	of 	teacher mailboxes 	to
the 	Sierra 	Sands 	Concerned Teachers 	(Concerned Teachers). 	The
complaint 	alleges 	further 	that 	the 	Concerned Teachers 	is 	an
employee 	organization,2 a 	contention which, 	if 	proven, 	would give
3w	it 	the 	right 	to use mailboxes.
11 Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	Educational 	Employment 	Relations Act
(EERA) 	is 	codified at 	section 	3540 	et 	seq. 	In relevant part,
section 	3543.5 	provides 	as 	follows:
It 	shall 	be 	unlawful 	for a public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals 	on
employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this chapter. 	. 	. 	.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2 "Employee 	organization," 	under Government 	Code 	section
3540.l(d),
. 	. 	. 	means any organization which includes
employees 	of 	a 	public 	school 	employer 	and
which has 	as 	one 	of 	its 	primary purposes
representing 	those 	employees 	in 	their
relations 	with 	that 	public 	school 	employer.
"Employee 	organization" 	shall 	also 	include
any 	person 	such 	an 	organization 	authorizes 	to
act 	on 	its 	behalf.
3 Under Government 	Code 	section 3543.1(b),
Employee 	organizations 	shall 	have 	the 	right
of 	access 	at 	reasonable 	times 	to areas 	in
which employees 	work, 	the 	right 	to use
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institutional bulletin boards, 	mailboxes, 	and
other means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the purpose 	of meetings 	concerned with
the 	exercise 	of 	the 	rights 	guaranteed by 	this
chapter.
The District answered the 	complaint 	on March 23, 	1992,
denying any wrong-doing. 	The Desert Area Teachers Association,
CTA/NEA, 	(Union) 	filed a motion on April 9, 	1992, 	asking that 	it
be 	joined as 	a party. 	The motion was 	granted on April 	20 	by a
PERB administrative 	law judge. 	The Union 	followed on June 	10,
1992, 	with an answer denying 	certain factual 	allegations 	and 	that
the District's 	actions 	constituted an unfair practice.
A hearing was 	conducted in Bakersfield on June 	10, 	1992, 	by
PERB Administrative Law Judge W. 	Jean Thomas. 	With the 	filing of
briefs, 	the matter was 	submitted for decision on September 	16,
1992. 	The matter was 	transferred to 	the undersigned on
October 19, 	1992, 	fo 	A	r the issuance of a proposed decision.4
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under 	the 	EERA.
The Charging 	Party, 	Ferneley Roberts, 	is a teacher employed by
the District 	since 	1973. 	The Union at all 	times 	relevant has
been the 	exclusive 	representative 	of 	the District's 	teachers.
The District operates 	12 	schools and, 	at 	the 	time of 	the
election, 	employed 3 03 	teachers 	in the primary certificated
4The 	transfer was made pursuant 	to 	California Administrative
Code, 	title 8, 	Part III, 	section 32168(b), 	in order to equalize
work 	loads 	within 	the Division 	of Administrative 	Law.
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bargaining unit. 	The District headquarters 	is 	in the Kern County-
town of Ridgecrest.
On or about September 26, 	1991, 	the District and the Union
entered a 	new 	collective 	bargaining 	agreement 	covering 	the 	period
from July 1, 	1991, 	through June 30, 	1992. 	A feature of that
agreement 	guaranteed the 	institution of 	agency 	fees, 	provided
that 	a majority of 	employees voting 	in an 	election 	favored 	the
proposal. 	The District 	and 	the Union 	entered an agreement 	with
the 	State Mediation and Conciliation Service 	to 	conduct 	the
election on October 21, 	1991. 	Under the agreement, 	the election
was 	conducted by on-site 	secret balloting at 	four 	locations. 	A
tally of ballots 	showed 	146 voters 	in 	favor of 	agency shop and 	76
opposed. 	A majority of valid votes 	cast were 	thus 	in 	favor of
the 	proposal 	and 	the District 	thereafter 	implemented 	the 	agency
shop provision.
On or about September 19, 	1991, 	when it became known that
the District 	and 	the Union would soon agree 	to 	an agency 	fee
election, 	Mr. 	Roberts arranged a meeting 	in District 	facilities
for 	teachers 	opposed to agency 	fees. 	He prepared a 	leaflet
announcing 	the date, 	time and 	location of 	a meeting 	"to discuss
strategies 	for 	fighting Agency Shop." 	Without 	incident,
Mr. 	Roberts placed copies 	of 	the 	flyer into 	the 	teacher mailboxes
at 	Burroughs 	High School 	where he 	is 	employed.
The 	events which gave 	rise 	to 	this 	case 	occurred when
Barbara Roberts, 	who is married to the Charging Party, 	attempted
to distribute 	the 	leaflet 	at 	three 	schools. 	She 	encountered no
A
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trouble at 	two but at 	the 	third school, 	Richmond Elementary, 	the
principal 	was 	uncertain about 	permitting her 	to place 	the 	flyer
into the 	teacher mailboxes. 	The principal 	called Bruce Auld, 	the
District's 	acting 	superintendent. 	Following 	that 	conversation,
the principal 	told Mrs. 	Roberts 	that 	the 	superintendent 	had
denied permission to place 	the 	flyers 	in 	teacher mailboxes.
However, 	the principal 	continued, 	the 	flyers 	could be left 	in
teacher lounges.
Upon learning of 	the problem from his wife, 	Mr. 	Roberts
called Superintendent Auld. 	Mr. 	Roberts 	complained that 	he
previously had known of 	no 	restrictions 	on the use 	of 	the
mailboxes. 	He 	testified 	that 	the 	superintendent 	told him that
the mailboxes 	could not 	be used by anyone but 	the Union.
However, 	the 	superintendent promised to 	check with his 	legal
counsel and get back to Mr. 	Roberts. 	Mr. 	Roberts 	testified that
the 	superintendent 	subsequently 	contacted 	him and 	affirmed 	the
District's 	position.
Mr. 	Roberts 	continued to pursue the question and, 	after
securing a 	copy of 	the EERA, 	contacted the 	superintendent 	and
read to him the provision dealing with use 	of mailboxes. 	The
superintendent, 	again consulted with his 	legal 	counsel, 	but 	then
called Mr. 	Roberts and reaffirmed the prohibition. 	Mr. 	Roberts
wrote 	a 	letter 	to 	the 	superintendent 	complaining about 	the
District's 	position but 	the District maintained 	the ban.
Despite 	the ban on mailbox usage, 	Mr. 	Roberts was able 	to
spread notice about 	his meeting. 	Eleven 	teachers who work 	in
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seven different 	schools 	attended 	the 	September 	26 	gathering.
Those 	in attendance 	agreed 	to 	form the 	Sierra Sands 	Concerned
Teachers. 	Mr. 	Roberts 	identified the purpose of 	the organization
as 	to 	"encourage people 	. . . 	to 	turn out 	and vote against" 	the
agency 	shop provision. 	He 	described defeating 	agency 	shop as
"our primary 	focus." 	He 	said the members 	"planned strategies 	and
tactics 	to deal 	with that particular election." 	He 	testified
that at meetings, 	"a number of different issues 	. 	. 	. 	came up
regarding 	employment 	with 	the District." 	The 	organization had no
formal 	structure, 	collected no dues 	and elected no 	officers.
Mr. 	Roberts 	conducted most of 	the meetings.
Some 	Concerned Teachers' 	literature was 	successfully placed
in 	teacher mailboxes 	even after 	the 	superintendent 	announced 	the
restriction. 	Mr. 	Roberts made at 	least 	one more distribution
through the mailboxes at Burroughs. 	In addition, 	Concerned
Teacher literature was placed 	in various 	teacher lounges. 	The
organization also 	conducted 	two press 	conferences 	in District
facilities which 	resulted 	in at 	least 	one article 	in a 	local
newspaper.
The 	District 	had not 	previously 	enforced a 	rigid ban 	on
non-school 	use 	of 	teacher mailboxes 	and 	several 	witnesses
testified 	that 	they knew of 	no 	restrictions. 	There was 	credible
testimony 	that 	flyers 	and 	leaflets 	about 	scouting and 	city and
military base 	recreation activities 	have 	been 	routinely placed 	in
mailboxes. 	Two witnesses 	also 	testified that 	leaflets 	and 	flyers
involving 	political 	endorsements 	had been placed 	in 	their
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mailboxes. 	Material 	involving parent-teacher association
activities 	also 	are 	routinely placed 	in 	teacher mailboxes.
LEGAL 	ISSUE
Did 	the 	District 	by 	its 	prohibition against 	the use 	of
teacher mailboxes 	by 	the 	Sierra 	Sands 	Concerned Teachers 	thereby:
A) 	Interfere with the 	right 	of 	the 	Sierra Sands 	Concerned
Teachers 	to have access 	to 	teacher mailboxes 	in violation of
section 	3543.5(b)?
B) 	Interfere with the protected right 	of 	employees 	to
refuse 	to 	join 	or participate 	in 	the 	activities 	of 	an employee
organization 	in violation 	of 	section 	3543.5(a)?
CONCLUSIONS 	OF 	LAW
Denial 	of 	Organizational 	Rights
Employee 	organizations 	under 	the 	EERA are 	granted 	certain
rights 	that 	exist 	apart 	from the protected 	rights 	of 	individual
employees. 	Among 	these are 	the 	right 	of 	an employee 	organization
to 	represent 	its members, 	to have 	its 	dues deducted by checkoff,
to have 	a 	reasonable 	amount 	of 	released 	time 	for members 	during
meeting and negotiating, 	and 	"to use institutional 	. 	. 	.
mailboxes, 	and other means of 	communication, 	subject 	to
reasonable 	regulation."55
In order to benefit 	from these 	rights, 	however, 	an
organization must 	fit 	within 	the 	statutory 	definition 	of
55 All 	of 	these 	organizational 	rights 	are 	set 	out 	in section
3543.1.
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"employee 	organization."6 This 	requires 	that 	the 	organization
have among 	its members public 	school 	employees 	and 	that 	"one 	of
its primary purposes 	[be] 	representing those employees 	in their
relations 	with 	that public 	school 	employer." 	It 	is 	undisputed
that 	the 	Concerned Teachers 	includes 	employees 	of 	a public 	school
employer, 	the District. 	The only question is whether the
organization has 	among 	its 	primary purposes 	the 	representation 	of
employees 	in 	their relations with the District.
The 	Charging 	Party argues 	that 	"both 	conceptually and
practically" 	the 	Concerned Teachers meets 	the 	standard. 	The
Charging 	Party 	cites 	testimony 	that 	the 	organization's 	primary
concern was 	to defeat 	the agency shop 	clause. 	Whether an agency
shop clause would be 	imposed, 	the Charging Party argues, 	"is
clearly an issue of 	the nonmembers' 	'relations' 	with their
employer." 	In addition, Charging Party notes 	that 	its members
also discussed 	"a number of different issues 	. 	. 	. 	regarding
employment with the District." 	It 	is 	not 	necessary that 	an
organization 	seek 	status 	as 	an exclusive 	representative 	in order
to 	qualify as 	an employee 	organization, 	the 	Charging 	Party
contends. 	This, 	the Charging Party argues, 	would require reading
into the 	statute a 	requirement 	that 	in order to qualify an
organization 	intend representation 	in 	"all" 	employment 	relations.
The Union argues 	that 	the 	Concerned Teachers 	is 	not 	an
employee 	organization under 	the 	EERA because 	it 	does 	not 	have as
a primary purpose 	the 	representation 	of 	employees 	in 	their
6See footnote no. 	2, 	supra.
88

relations with the District. 	Rather, 	the Union asserts, 	the sole
purpose 	of 	Concerned Teachers 	was 	to 	convince bargaining unit
members 	to vote 	"no" 	in the agency fee election. 	The Union
argues 	that 	Concerned Teachers 	has 	none 	of 	the attributes 	that
the 	PERB 	has 	found necessary 	for qualification as 	an 	employee
organization. 	"In short," 	the Union concludes, 	"Concerned
Teachers was not 	involved with its members' 	relations with the
district, 	but rather with their relations with 	[the Union]."7
It 	is undisputed that 	the 	Concerned Teachers 	was 	composed of
employees 	of 	the District, 	a public school 	employer. 	There 	is no
evidence, 	however, 	that 	the organization had as one of 	its
primary purposes 	the 	"representation" 	of 	those employees. 	Its
purpose was 	solitary, 	to defeat agency fees. 	Attempting to
defeat a union security clause 	is not 	representation.
Nor 	can 	it be 	said that 	the 	singular 	focus 	of 	the 	Concerned
Teachers, 	agency fees, 	involves employee relations with the
District. 	Indeed, 	consistent with the Union's argument, 	the PERB
once 	observed that 	"the 	exaction of 	agency 	fees 	is 	fundamentally
a matter between 	the 	exclusive 	representative 	and bargaining 	unit
members."8• Contrary 	to 	the 	argument 	of 	the 	Charging 	Party,
therefore, 	I 	find that the Concerned Teachers did not have as 	any
organizational 	purpose an 	involvement 	of 	itself 	in 	the
There 	are 	no District 	arguments 	to 	consider because 	the
District 	elected not 	to 	file a brief.
8See 	San Ramon Valley Unified School 	District 	(1989) 	PERB
Decision No. 	751. 	In that 	case 	the Board concluded that an
unfair practice 	charge 	could not be 	filed against 	an 	employer 	to
challenge 	the amount 	of 	an agency fee.
9

relationship between employees 	and the District. 	Its 	sole
purpose was 	to affect 	the 	terms 	of 	the 	relationship between 	the
employees 	and the Union.
For these 	reasons, 	I 	conclude 	that 	the Concerned Teachers
was 	not 	an employee 	organization under the EERA. 	Accordingly,
the allegation that 	the denial 	of 	the use of mailboxes violated
section 3543.5(b) 	must be dismissed.
Interference With 	Employee 	Rights
This determination, 	however, 	does not resolve the question
of 	whether the 	denial 	of 	the 	right 	to use mailboxes 	interfered
with protected 	individual 	rights. 	Public 	school 	employees 	have
the 	protected 	right
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for the purpose 	of
representation on all matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall 	also have 	the 	right 	to 	refuse 	to 	join
or participate 	in the activities 	of 	employee
organizations 	and shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the public 	school
employer . . . . 9 9
It 	is an unfair practice under section 3543.5(a) 	for a public
school 	employer 	"to interfere with, 	restrain, 	or coerce employees
because 	of 	their exercise of" 	protected rights.
In an unfair practice 	case 	involving an allegation of
interference, 	a violation will 	be 	found where 	the 	employer's 	acts
interfere 	or 	tend 	to 	interfere 	with 	the 	exercise 	of 	protected
rights 	and the 	employer 	is unable 	to 	justify 	its 	actions by
9Section 3543.
10

proving 	operational 	necessity. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	8 9 . ) 1 0 In an interference case, 	it is
not 	necessary 	for 	the 	charging party 	to 	show that 	the 	respondent
acted with an unlawful motivation. 	(Regents 	of 	the University of
California 	(1983) 	PERB Decision No. 	305-H.)
There 	is 	no 	statutory 	right 	that 	affords 	individual 	teachers
access 	to a school mail 	system11 or to 	teacher mailboxes. 	The
District, 	however, 	made available the use of 	teacher mailboxes
for the distribution of 	such non-school materials 	as 	political
statements, 	and 	flyers 	on scouting and local 	government
10The 	Carlsbad test 	for 	interference provides, 	in relevant
part, 	as follows:
(2) 	Where 	the 	Charging Party establishes
that 	the 	employer's 	conduct 	tends 	to or does
result 	in 	some 	harm to 	employee 	rights
granted under the EERA, 	a prima 	facie 	case
shall 	be 	deemed to 	exist;
(3) 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer and
the 	rights 	of 	the 	employees 	will 	be balanced
and 	the 	charge 	resolved accordingly;
(4) 	Where 	the harm is 	inherently destructive
of 	employee rights, 	the employer's 	conduct
will 	be 	excused only on proof 	that 	it was
occasioned by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course of action was available;
(5) 	Irrespective of the foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in 	the
complained 	conduct 	but 	for an unlawful
motivation, 	purpose or intent.
1:LSee generally, 	Los Rios 	Community College District 	(1990)
PERB Decision No. 	833.
11

recreational 	activities. 	Once 	the District 	opened the 	forum for
leaflets about 	these non-school 	activities, 	it 	could not 	then ban
employees 	from using 	the mailboxes 	to 	engage 	in protected
conduct.12
The 	statutory right 	to 	refuse 	to participate 	in the
activities 	of 	an employee 	organization includes 	within 	it 	a
protected 	right 	to oppose 	the 	imposition of 	agency 	fees.13
Mr. 	Roberts 	and his 	colleagues 	were 	therefore 	engaged 	in
protected activities 	when 	they attempted 	to 	circulate 	leaflets 	in
opposition to 	the 	imposition of 	agency 	fees. 	By discriminating
against Mr. 	Roberts and his associates, 	the District 	interfered
with 	their protected 	rights 	to 	engage 	in protected 	conduct 	in
violation of section 3543.5(a).
REMEDY
The PERB in section 3541.5(c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the unfair practice and to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
12
An 	otherwise valid no-solicitation 	rule 	will 	violate
employees' 	protected rights 	if 	the 	rule 	is 	discriminatory either
in scope 	or application. 	(State 	of 	California 	(Department 	of
Transportation) 	(1981) 	PERB Decision No. 	159b-S.) 	Thus, 	where an
employer permitted 	the distribution 	of 	personal 	mail 	at 	the work
site, 	it 	could not 	selectively prohibit personal mail 	sent 	to
employees by a union. 	(Id.	- 	)
13	1 3 This 	conclusion is 	implicit 	in Chaffey Joint Union High
School District 	(19 88) 	PERB Decision No. 	669. 	There, 	the Board
accorded 	standing 	to an 	individual 	employee who was 	attempting 	to
challenge 	an agency 	fee 	election.
12

Mr. 	Roberts argues 	that 	the appropriate 	remedial 	order would
be 	a declaration 	setting aside 	the 	election held 	on October 21,
1991. 	He argues 	in addition that 	"actions 	taken pursuant 	to 	the
voided 	election 	i.e., 	seizure 	of 	agency 	fees 	from nonunion
teachers 	should also be 	remedied." 	Specifically, 	he asserts,
all 	agency 	fees 	collected 	since 	the 	election 	should be 	refunded
to 	the agency 	fee payers who 	request 	it.
The Union argues 	that 	even if unlawful 	activity is 	found, 	it
is 	PERB's 	well-established 	rule 	that 	an election 	should not 	be
set aside unless 	an impact 	on employees' 	votes has been shown.
The Union argues 	that 	although access 	to mailboxes was 	denied at
some school 	sites, 	it was granted at others. 	In addition, 	the
Union 	continues, 	Concerned Teachers 	had the 	opportunity 	to
advance 	their position by other means 	including 	the use 	of
District 	facilities. 	In light of these facts, 	the Union
concludes, 	no demonstration of probable 	impact has been shown.
Although this 	charge 	does 	not 	involve 	objections 	to an
election, 	the remedy sought by Mr. 	Roberts parallels 	that
appropriate in an objections case. 	It is proper, 	therefore, 	to
test 	the 	requested 	remedy against 	the 	standards 	used 	in
objections 	cases. 	Since 	its very first 	decision, 	the Board has
consistently held 	that 	for 	election 	objections 	to be 	sustained,
some 	effect 	on 	the 	election 	result must 	either be 	shown or
logically 	inferred. 	In that 	first 	decision,14 the Board wrote:
14Tamalpais Union High School 	District 	(1976) 	EERB Decision
No. 	1. 	Prior to 1978, 	the Public Employment Relations Board was
known as 	the 	Educational 	Employment 	Relations 	Board.
13

In the absence 	of 	evidence 	that voters were
discouraged 	from voting, 	we would 	sustain 	the
Association's 	. 	. 	. 	objections only on 	[a]
finding 	that 	those 	events 	had 	the 	natural 	and
probable 	effect 	of 	discouraging voter
participation 	in 	the 	representation election.
In 	that 	case, 	the Board eschewed the per se 	rules 	often followed
in National 	Labor Relations 	Board decisions 	and dismissed 	the
objections 	to election.
In subsequent 	cases, 	the Board has 	held that 	even the
demonstration of unlawful 	conduct 	in the 	election environment 	is
but 	"a threshold question." 	(State 	of 	California 	(Department 	of
Personnel Administration et al.) 	(1986) 	PERB Decision
No. 	601-S.)1 5 The Board will not 	in every situation where
conduct 	tantamount 	to an unfair practice 	has 	been demonstrated,
order 	that 	the 	election be 	rerun. 	The basic 	question 	is whether
taken 	collectively 	the various 	unlawful 	activities 	establish a
"probable 	impact 	on the 	employees' 	vote." 	(Jefferson Elementary
School District 	(1981) 	PERB Decision No. 	164.)1 6
In deciding whether to set aside an election result, 	the
Board will 	look 	"upon 	the 	totality 	of 	circumstances 	raised 	in
each case and, 	when appropriate, 	the 	cumulative effect of 	the
conduct 	which 	forms 	the basis 	for the 	relief 	requested." 	(Clovis
Unified School District 	(1984) 	PERB Decision No. 	389.) 	Thus,
15See also, 	San Ramon Valley Unified School 	District 	(1979)
PERB Decision No. 	1ll 	and Clovis Unified School 	District 	(1984)
PERB Decision No. 	389.
16	16 It 	is unnecessary that actual 	impact be proven. 	(San
Ramon Valley Unified School District, 	supra; 	Clovis Unified
-.
School District, 	supra.)
14

even where 	some 	impact 	on voters 	can be 	inferred, 	the 	election
result 	in 	some 	circumstances 	still may not be 	set 	aside.
As 	the Union argues, 	there 	is no evidence here which would
establish a 	"probable 	impact 	on the employees' 	vote." 	Mr.
Roberts 	and members 	of 	the 	Concerned Teachers 	got 	some 	leaflets
into 	teacher mailboxes 	and distributed prior 	to when 	the ban went
into 	effect. 	They even had 	limited access 	to mailboxes 	in some
schools 	after 	the ban. 	They were permitted to use District
facilities 	for meetings 	and 	they were permitted 	to put 	literature
in 	teacher 	lounges. 	They 	successfully placed an article
explaining 	their position 	in a 	local 	newspaper. 	There 	is 	no
evidence 	the 	Concerned Teachers 	encountered 	any 	restrictions 	upon
personal 	solicitations 	of 	support 	from co-workers 	during non-
work periods. 	Under these circumstances, 	there 	is no evidence
that 	would establish a probable 	or actual 	impact 	upon 	the
election result. 	Accordingly, 	there 	is no basis 	for setting
aside 	the 	election result.
The primary 	remedy will 	be 	an order 	that 	the District
cease-and-desist 	from its 	unlawful 	conduct 	and post 	a notice
incorporating 	the 	terms 	of 	the order. 	Posting of 	such a notice,
signed by an authorized agent 	of 	the District, 	will 	provide
employees 	with notice 	that 	the District 	has 	acted 	in an unlawful
manner, 	is being required to 	cease and desist 	from this 	activity,
and will 	comply with the 	order. 	It 	effectuates 	the purposes 	of
the 	EERA that 	employees 	be 	informed of 	the 	resolution of 	this
controversy and 	the District's 	readiness 	to 	comply with 	the
15

ordered remedy. 	(Placerville Union School District 	(1978) 	PERB
Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the 	Sierra
Sands Unified School 	District 	(District) 	violated section
3543.5(a) 	of 	the Educational Employment Relations Act 	(Act). 	The
District 	violated 	the Act 	when 	the 	superintendent
discriminatorily prohibited 	teachers 	opposed 	to 	the 	imposition 	of
an agency 	fee 	from using 	teacher mailboxes 	to distribute 	flyers.
Because 	the 	action had the 	effect 	of 	interfering with 	the 	right
of unit members 	to engage 	in protected conduct, 	the mailbox
prohibition was a violation of 	section 3543.5(a).
Pursuant to section 3541.5(c) 	of the Government Code, 	it
hereby 	is 	ORDERED 	that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
Regulating 	employee use 	of 	teacher mailboxes 	in a
manner 	that 	discriminates 	against 	those who wish 	to 	engage 	in
protected 	conduct.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Within ten 	(10) 	workdays of 	the service of a final
decision 	in this matter, 	post at all work locations where notices
to 	certificated employees 	customarily are posted, 	copies 	of 	the
Notice attached hereto as 	an Appendix. 	The Notice must be 	signed
by an authorized agent 	of 	the District, 	indicating 	that 	the
16

District 	will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting
shall be maintained for a period of 	thirty 	(3 0) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to ensure 	that 	the
Notice 	is not 	reduced in size, 	altered, 	defaced or covered with
any other material.
2. 	Upon issuance 	of a final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with the 	Order to 	the
Los Angeles 	Regional 	Director of 	the 	Public 	Employment 	Relations
Board 	in accord with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 20
days 	of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must be 	served
concurrently with 	its 	filing upon each party 	to 	this 	proceeding.
17

Proof 	of 	service 	shall 	accompany each 	copy served on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law Judge
18