Hartnell Community College District (PERB A040E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATIONARY 	ENGINEERS, 	LOCAL 	39,
Employee 	Organization, 	APPELLANT,
and
HARTNELL 	COMMUNITY 	COLLEGE
DISTRICT,
Employer
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___________________ )
Case 	No. 	SF-D-24
PERB 	Order 	No. 	Ad- 40
Administrative 	Appeal
Jtm.e 27, 	1978
Appearances: 	Robert 	J. 	Bezemek, 	Attorney 	(Van 	Bourg, 	Allen,
Weinberg 	and 	Roger) 	for 	Stationary 	Engineers, 	Local 	39;
Dr. 	Gibb 	R. 	Madsen, 	Superintendent/President 	for 	Hartnell
Community College 	District.
Before: 	Gluck, 	Chairperson; 	Cossack 	Twohey 	and 	Gonzales,
Members.
OPINION
This 	is 	an 	appeal 	of 	the 	San 	Francisco 	regional 	director's
dismissal 	of 	a 	decertification 	petition 	filed 	by 	Stationary
Engineers, 	Local 	39 	(hereafter 	Local 	39).
FACTS
On 	May 	24, 	1977, 	Hartnell 	Community 	College 	District
(hereafter 	District) 	voluntarily 	recognized 	California 	State
Employees 	Association 	and 	its 	Hartnell 	Chapter 	470 	(hereafter
CSEA) 	as 	the 	exclusive 	representative 	of 	a 	wall-to-wall
negotiating 	unit 	of 	classified 	employees. 	On 	June 	1 	and 	2,
1977, 	Local 	39 	filed 	unfair 	practice 	charges 1 against 	the
lThe 	charges 	were 	designated 	SF-CE-98 	and 	SF-CO-21,
respectively.

District
	and
	CSEA
	challenging
	such
	recognition
	as
	illegal.
Local
	39
	alleged
	in 	those
	charges,
	inter
	alia,
	that
	the
District
	and
	CSEA
	committed
	unfair
	practices
	in
	that
	the
District
	extended
	recognition 	to
	CSEA, 	and
	that
	CSEA
	accepted
such
	recognition,
	in
	order 	to 	preclude
	Local
	39 	from
intervening 	in
	a
	formal
	Public
	Employment
	Relations
	Board
(hereafter
	PERB)
	unit
	determination 	hearing 	pursuant 	to
	the
one-card
	rule
2
for 	the 	purpose
	of 	arguing
	that
	an
	operations
unit
	was
	appropriate
	and
	should
	be
	carved 	out
	from
	the
wall-to-wall 	unit
	requested
	by 	CSEA.
	These
	charges
	later
	were
dismissed
	by
	the 	general 	counsel,
	and
	thereafter
	were
	appealed
by
	Local
	39
	to
	the
	Board
	itself.
On
	May
	22, 	1978,
	almost
	one
	year
	later,
	Local
	39
	filed
	a
petition
	for
	decertification 	election
	pursuant 	to
2
Board
	rule
	33340,
	codified
	at
	Cal.
	Admin. 	Code,
	tit.
	8,
section
	33340, 	which
	provides:
The 	Board
	may
	allow
	an 	employee
	organization
which
	did
	not
	file
	a
	timely 	request 	for
recognition
	or
	intervention 	to 	join
	the
hearing 	as
	a
	party 	provided:
(a) 	The 	employee
	organization
	files
	a
written 	application 	prior
	to 	the
commencement
	of 	the 	hearing
	stating 	facts
showing
	that
	it
	has 	an
	interest
	in 	the 	unitdescribed 	in 	the 	request 	for 	recognition 	or
an
	intervention;
	and
(b) 	The
	application 	is
	accompanied 	by
	proof
of 	the 	support 	of 	at 	least
	one 	employee
	in
the 	unit 	described
	by
	the 	request 	or
intervention;
	and
(c) 	The 	Board 	determines 	that 	the 	employee
organization 	has 	a
	substantial 	interest 	in
the 	case 	and
	will 	not 	unduly 	impede 	the
proceeding. 
2

section 	3544.S(d) 	of 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA). 3 The 	decertification 	petition 	stated 	that
CSEA 	was 	recognized 	on 	May 	24, 	1977, 	and 	that 	there 	was 	no
contract 	then 	in 	effect 	between 	CSEA 	and 	the 	District 	covering
the 	negotiating 	unit 	in 	which 	the 	District 	had 	recognized
CSEA. 	The 	petition 	further 	alleged 	that 	the 	employees 	in 	the
unit 	no 	longer 	desired 	to 	be 	represented 	by CSEA, 	and 	that 	they
wished 	to 	be 	represented 	by 	Local 	39.-
On 	May 	22, 	1978, 	the 	San 	Francisco 	regional 	director
dismissed 	Local 	39's 	decertification 	petition. 	The 	regional
director 	notified 	the 	parties 	in 	writing 	of 	his 	decision,
stating:
[IJnvestigation 	of 	this 	matter 	established
the 	following 	facts:
3The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Gov. 	Code 	sections 	3540 	et 	seq. 	Section 	3544.S(d) 	states:
A petition 	may 	be 	filed 	with 	the 	board, 	in
accordance 	with 	its 	rules 	and 	regulations,
requesting 	it 	to 	investigate 	and 	decide 	the
question 	of 	whether 	employees 	have 	selected
or 	wish 	to 	select 	an 	exclusive
representative 	or 	to 	determine 	the
appropriateness 	of 	a 	unit, 	by:
(d) 	An 	employee 	organization 	alleging 	that
the 	employees 	in 	an 	appropriate 	unit 	no
longer 	desire 	a 	particular 	employee
organization 	as 	their 	exclusive
representative, 	provided 	that 	such 	petition
is 	supported 	by 	current 	dues 	deduction
authorizations 	or 	other 	evidence 	such 	as
notarized 	membership 	lists, 	cards, 	or
petitions 	from 	30 	percent 	of 	the 	employees
in 	the 	negotiating 	unit 	indicating 	support
for 	another 	organization 	or 	lack 	of 	support
for 	the 	incumbent 	exclusive 	representative.
*****
3

1.
	The
	current
	exclusive
	representative
·of
the
	established 	unit
	is
	the
	California
School
	Employees
	Association
	and
	its
Hartnell
	Chapter
	No.
	470,
	which
	was
recognized
	on
	May
	24, 	1977.
2.
	No
	written
	agreement
	currently
	exists
between
	the
	exclusive
	representative
	and
	theemployer.
This
	investigation
	has
	resulted
	in 	the
administrative
	determination
	that
	the
conditions 	pursuant 	to
	section
	33250(b)
[4]
of 	the
	PERB
	rules
	and
	regulations
	have
	not
been 	met.
	The
	petition 	is
	therefore
	not
timely
	filed
	since
	it
	was
	filed 	less
	than
	12
months
	after
	recognition.
	(Emphasis
	added.)
In
	a
	letter
	received
	May
	25, 	1978,
	the
	District
notified
	PERB
	that
	on
	May
	23, 	1978, 	the
	District
	and
	CSEA
	had
entered 	into
	a
	three-year
	contract.
On
	May
	30, 	1978, 	Local
	39
	appealed
	to
	the
	Board
	itself
the 	regional
	director's
	dismissal 	of
	its
	decertification
petition.
	Local
	39's
	appeal
	alleges
	the 	following:
1.
	The
	petition
	was
	timely
	filed
	under
	the
EERA,
	PERB
	rules
	and
	appropriate
	NLRA
precedent;
2.
	The
	petition
	was
	supported
	by 	an
adequate
	showing
	of
	interest,
	but 	the
regional 	office 	failed
	to
	check
	the
	showing
of
	interest;
3.
	The
	regional 	office
	denied 	the
petitioner
	due
	process 	of
	law;
4cal.
	Admin. 	Code,
	tit.
	8, 	sec.
	33250(b)
	states:
(b) 	The
	petition 	shall
	be
	dismissed
	whenever
either
	of 	the 	conditions 	of 	Section3544.7(b) 	of 	the 	Act
	exist
	or
	if
	a
representation 	election
	has 	been 	held 	within
the 	12 	months 	immediately 	preceding 	the
filing 	of 	the 	petition.
4

4.
	Since
	the
	incumbent 	union
	was
	not
certified
	by
	the
	PERB
	after
	an
	election,
	the
incumbent
	was
	not
	entitled
	to
	a
	presumption
of 	continued
	majority
	status.
During
	the
	time
	period 	in
	which
	the
	above
	events
occurred,
	this
	Board
	was
	in 	the 	process 	of
	deliberating
	Local
39's
	appeal 	of 	the
	general
	counsel's 	dismissal
	of 	the
	unfair
practice
	charges
	filed
	June
	1 	and
	June
	2,
	1977.
	On
	June
	5,
1978,
	two 	weeks
	after
	the
	regional
	director's
	dismissal
	of
Local
	39's
	decertification 	petition,
	we
	issued
	our
	decision 	in
Hartnell
	Community
	College
	District.
5
That
	decision 	reversed
the 	general
	counsel's 	dismissal
	of 	the 	charges
	and
	remanded
them
	to 	the
	general
	counsel 	for 	hearing
	on
	the 	lawfulness 	of
the 	recognition
	agreement
	entered
	into
	between
	CSEA
	and
	the
District.
DISCUSSION
The
	regional
	director,
	pursuant 	to 	his
	interpretation
of
	Board
	rules,
	dismissed
	Local
	39's 	decertification 	petition
on
	the
	ground
	that
	it
	was
	not 	timely
	filed.
	That
	action
	was
taken 	before 	the
	Board
	itself
	issued 	the 	order 	of
	remand
	in 	the
unfair 	practice
	case
	then 	pending
	before
	it.
6
Section
3544.7
(b) (2)
	of
	the
	EERA
	states 	that
	a
	petition
	for
decertification 	election 	shall
	be
	dismissed
	where 	a
	public
school
	employer 	has 	recognized
	an 	employee
	organization
5(6/5/78)
	PERB
	Decision
	No
	54.
6we
	note 	that 	the 	regional 	director
	had 	no 	knowledge 	of
our 	pending 	remand
	order 	at 	the 	time
	that
	he
	dismissed 	Local
39's 	decertification 	petition. 
5

lawfully
	within
	the 	previous
	12-month
	period.
7 The
lawfulness
	of 	the
	District's
	recognition
	of	
CSEA	
is
	the
	point
in
	question
	in
	the
	remanded
	case.
	Thus
	the
	outcome
	of
	the
remand 	may
	determine
	the
	disposition
	of
	the
	decertification
petition.
	The
	regional
	director's
	dismissal
	of
	Local
	39's
petition
	therefore 	is
	rescinded. 	Further
	proceedings
	in
	the
decertification
	matter 	are 	stayed
	until
	the
	unfair
	practice
case
	has 	been
	resolved.
7Gov. 	Code
	sec.
	3544.?(b)
	states:
No
	election 	shall
	be
	held
	and
	the
	petitionshall
	be
	dismissed
	whenever:
(1)
	There
	is 	currently
	in
	effect
	a
	lawful
written
	agreement
	negotiated
	by
	the 	publicschool
	employer
	and
	another
	employee
organization 	covering
	any 	employees
	included
in 	the 	unit 	described 	in 	the 	request 	for
recognition, 	or 	unless 	the 	request 	for
recognition 	is 	filed 	less
	than
	120
	days, 	but
more
	than
	90
	days,
	prior 	to 	the
	expirationdate 	of 	the 	agreement; 	or
(2) 	The
	public 	school 	employer
	has, 	within
the 	previous
	12
	months, 	lawfully 	recognized
an 	employee
	organization 	other 	than 	the
petitioner
	as 	the 	exclusive 	representativeof
	any 	employees 	included 	in 	the 	unitdescribed 	in 	the 	petition.
6

ORDER
The
	regional
	director's
	dismissal
	of
	the
decertification 	petition 	filed
	by
	Stationary
	Engineers,
	Local
39
	in 	the
	Hartnell
	Community
	College
	District 	is
	hereby
rescinded	
by 	the
	Board
	itself.
	The
	Boara
	itself
	stays
	further
action
	on
	such
	decertification 	petition
	pending
	the
	disposition
of 	unfair
	practice
	case
	numbers 	SF-CE-98 	and
	SF-C0-21.
lurch	By : 	Harry Gluck, Chairperson
rson 	Raymond J. gonzales, Member
Qivelaw Cossack wrkeyJerilou Cossack Twohey , Member
7