Oakland Unified School District (PERB A048E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
UNITED 	TEACHERS 	OF 	OAKLAND,
LOCAL 	771,
Employee 	Organization,
APPELLANT,
and
BARBARA 	BISSELL,
Individual 	Employee,
APPELLANT,
and
OAKLAND 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Employee 	Organization.
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____________________ )
Case 	Nos. 	SF-OS-34
SF-OS-37
SF-OS-43
PERB 	Order 	No. 	Ad-48
Administrative 	Appeal
October 	19, 	1978
Appearances: 	Michael 	Sorgen, 	Legal 	Advisor 	for 	Oakland 	Unified
School 	District; 	Stewart 	Weinberg, 	Attorney 	(Van 	Bourg, 	Allen,
Weinberg 	& Roger) 	for 	United 	Teachers 	of 	Oakiand, 	Local 	771;
Francis 	R. 	Giambroni, 	Attorney 	(White, 	Giambroni 	& Walters) 	for
Oakland 	Education 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Cossack 	Twohey 	and 	Gonzales, 	Members.
DECISION
This 	is 	an 	administrative 	appeal 	from 	a 	determination 	by 	a
regional 	director 	of 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	that 	the 	United 	Teachers 	of 	Oakland,
Local 	771 	(hereafter 	UTO), 	and 	an 	employee 	of 	the

Oakland 	United 	School 	District 	(hereafter 	District),
Ms. 	Barbara 	Bissell, 	do 	not 	have 	standing 	to 	file 	objections 	to
certain 	organizational 	security 	elections 	conducted 	by 	the
Board.
The 	Board 	finds 	that 	two 	issues 	are 	raised 	by 	this 	appeal:
(1) 	Is 	a 	nonexclusive 	employee 	organization 	a 	"group 	of
employees" 	for 	the 	purpose 	of 	petitioning 	for 	rescission 	of 	an
organizational 	security 	agreement?
(2) 	Is 	either 	UTO 	or 	Barbara 	Bissell 	a 	"party 	to 	the
election" 	and 	therefore 	qualified 	to 	file 	objections 	to 	the
conduct 	thereof?
FACTS
On 	February 	22, 	1978, 	the 	District 	notified 	PERB 	that 	it
had 	receivea·a 	request 	from 	OEA 	to 	hold 	an 	election 	to
determine 	whether 	present 	employees 	in 	two 	negotiation 	units 1
of 	which 	OEA 	is 	the 	exclusive 	representative 	should 	be 	required
to 	pay 	an 	agency 	fee 	to 	OEA. 	The 	request 	was 	made 	pursuant 	to
a 	provision 	in 	the 	collective 	negotiations 	agreement 	executed
lThe 	units 	consist 	of 	"uriit 	A," 	which 	includes 	all
certificated 	employees 	except 	for 	children's 	center 	teachers,
children's 	center 	teacher 	assistants, 	children's 	center
assistant 	supervisors, 	K-12 	and 	children's 	center 	substitute
teachers, 	management, 	supervisory 	and 	confidential 	employees;
and 	"unit 	B," 	which 	includes 	children's 	center 	teachers,
children's 	center 	teacher 	assistants 	and 	children's 	center
assistant 	supervisors, 	excluding 	K-12 	and 	children's 	center
substitute 	teachers, 	management, 	supervisory, 	confidential 	and
all 	other 	employees. 	See 	Oakland 	Unified 	School 	District
(3/28/77) 	EERB 	Decision 	No. 	15.
*****
2

between
	the
	District
	and
	OEA.
	The
	provision
	stated
	in
pertinent 	part:
Article
	18.
	Organizational
	Security.
Employees
	within
	a
	bargaining
	unit
	are
	free
to
	join
	or 	not
	to
	join
	the
	Association.Neither 	the 	Association
	nor
	the
	Districtshall 	interfere
	with
	an
	employee's 	choice 	in
this
	regard
...•
All
	newly
	hired
	emplovees
	are 	required
either
	to 	join
	the 	Association
	as
	a 	member,
or
	to
	pav
	a
	service
	fee 	equal
	to
	but 	not
more
	than
	the
	Association's 	regular
	dues~
The
	District
	agrees
	that
	the 	Association
	may
at
	any
	time
	during 	the 	period 	of
	this
Agreement
	require
	an
	election
	of
	all
employees
	in 	the 	bargaining
	unit
	for 	the
purpose 	of 	deciding
	whether
	the
	emplovees
	of
this
	unit
	shall
	be
	required 	to 	join
	the
organization
	or
	pay
	an
	agency
	fee.
	The
Association
	shall
	give 	the
	District 	at 	least
30
	calendar
	days
	written 	notice 	of
	the
intent
	to 	request 	the 	Educational
	Employment
Relations
	Board
	to 	hold 	the
	election.
(Emphasis
	added.)
On
	March
	7,
	1978,
	UTO,
	which 	was
	neither
	recognized 	by	
the
District
	nor
	certified
	by
	PERB
	as
	the 	exclusive 	respresentative
within
	the
	District, 	filed
	a
	petition
	for
	an
	election 	to
rescind 	the
	agency
	fee 	arrangement
	for
	newly
	hired
	employees
contained 	in 	the
	above
	collective 	negotiation
	agreement.
	The
petition
	was
	filed
	pursuant 	to
	Board
	rule
	34020,
2
which
states:
(a) 	A
group
	of
	employees
	in
	an
	appropriate
unit
	may
	file
	with 	the 	regional 	office
	a
petition
	to 	rescind
	an
	existing
organizational 	security
	arrangement 	pursuant
to 	section
	3546 (b)
	of 	the 	Act;
2
ca1. 	Adrnin. 	Code,
	tit.
	8, 	sec. 	34020.
3

(b) 	The
	petition 	shall
	contain
	the
following
	information:
(1) 	The 	name,
	address
	and
	county
	of
the
	employer;
(2) 	The 	name 	and
	address
	of
	the
petitioner's
	representative;
{3) 	The 	name 	and
	address 	of
	the
employee
	organization
	which
	is
	the
	exclusive
representative 	of
	the
	employees
	in 	the
	unit;
(4) 	A
description
	of
	the
	established
unit;
(5) 	The
	language
	of
	the
	organizational
security
	arrangement 	sought
	to
	be
	rescinded;
(6) 	The
	effective
	date
	and
	the
expiration
	date
	of
	the
	agreement
	containing
the
	organizational 	security
	arrangement
sought
	to
	be
	rescinded;
(7)
	Proof
	that 	at
	least
	30
	percent 	of
the
	employees
	in
	the
	unit 	desire
	to 	rescind
the
	existing 	organizational 	security
arrangement.
(c) 	-The
	petitioner 	shall
	serve
	a
	copy
	ofthe
	petition,
	excluding 	the 	proof 	of
	at
least
	30
	percent 	support,
	on
	the
	employerand
	the
	incumbent
	exclusive 	representative.
A
statement 	of 	service
	shall
	be
	filed
	with
the
	appropriate 	regional
	office.
UTO's
	petition
	was
	accompanied
	by
	proof 	of
	at 	least
	30
	percent
support 	of
	employees
	in 	the
	unit
	for
	its
	petition.
On
	March
	9,
	1978, 	the 	regional 	director 	called
	a
	meeting
between
	OEA,
	UTO
	and
	the
	District.
	The
	parties
	reached
	the
following 	agreement:
The
	undersigned 	hereby 	confirm
	and
acknowledge
	that
	the
	effect 	of 	the
organizational 	security
	agreement
(Article
	18)
	[of 	the 	collective 	bargainingagreement 	between
	OEA
	and 	the
	District]regarding 	both 	newly
	hired 	employees 	and
current
	employees
	shall
	be 	determined 	by
	theoutcome
	of 	the 	organizational 	security 	voteon 	April 	6, 	1978 	in 	Unit 	A and 	Unit 	B. 	By
this 	clarification
	Case 	#SF-OS-37 	[UTO's
petition] 	is 	hereby 	closed.
4

On
	April
	6,
	1978,
	the
	organizational 	security 	election
	was
held
	in
	the
	two
	negotiation 	units
	covered
	by
	the
	agreement.
Employees
	in
	unit
	A
voted
	by 	1048
	to
	1035,
	with
	10
	challenged
ballots,
	to
	adopt
	the
	organizational 	security 	clause.
Employees
	in
	unit
	B
voted
	69
	to
	82,
	with
	2
	challenged
	ballots,
not 	to
	adopt
	the
	clause.
In
	a
	letter
	dated
	April
	12, 	1978,
	UTO
	and
	Barbara
	Bissell
filed
	objections
	to 	the
	latter
	organizational 	security 	election
through
	an
	attorney.
	His
	letter
	stated 	that
	the
	objections
	were
being
	filed
	pursuant 	to
	Board
	rules
	33580
	and
	33590.
3 The
objections 	alleged 	five 	instances 	of 	"serious
	irregularity
	in
the
	conduct
	of
	the
	election."
3cal.
	Admin.
	Code,
	tit.
	8, 	sec.
	33580 	and
	33590.
Section
	33580
	states:
(a)
	Within 	seven
	calendar
	days
	following
the
	receipt
	of 	the
	tally
	of
	ballots,
	any
party
	to 	the
	election
	may
	file
	in 	the
regional
	office 	objections 	to 	the
	conduct
	ofthe
	election
	whether 	or 	not
	any
	challenged
ballots
	are
	sufficient
	in
	number
	to
	affect
the
	results
	of 	the
	election.
(b) 	The
	objecting 	party
	shall
	serve
	a
	copy
of
	its
	objections
	on
	each
	party
	to 	the
election.	
A	
statement 	of 	service 	shall
	be
sent 	to 	the 	regional
	office.
Section
	33590
	states:
Objections
	shall
	be
	entertained	
by 	the
	Board
only
	on
	the 	following 	grounds:
(a) 	The
	conduct 	complained 	of 	is
	tantamount
to
	an
	unfair 	practice
	as 	defined 	in 	Article
4
	of 	the 	Act; 	or
(b)
	Serious 	irregularity 	in 	the 	conduct 	of
the 	election. 
5

In
	a
	letter
	dated
	April
	28, 	1978,
	the
	regional
	director
dismissed
	UTO's
	objections
	"due
	to 	lack
	of
	standing
	of 	the
petitioner."
	His
	letter
	stated 	that
	UTO's
	petition
	became
	moot,
and
	its
	case
	had
	been
	closed,
	by
	the
	March 	9
	agreement 	between
UTO,
	OEA
	and
	the
	District.
	The
	regional
	director's
	letter
	did
not
	discuss
	the
	standing 	of
	Barbara
	Bissell
	to
	file
	objections
	to
the
	election.
DISCUSSION
This
	Board 	has
	stated 	that
	a
	cornerstone 	of
	the
	collective
negotiations
	model,
	designed 	to
	enhance 	employer-employee
relations,
4
is
	a
	stable 	relationship
	between
	the
	employer
	and
its
	employees
	acting
	through
	their
	~reely
	chosen
representative.
5
In
	furtherance 	of
	this 	objective,
	the
	Board
has
	consistently
	held
	that
	the
	employees'
	representative
	must 	be
4section	
3540	
of
	the 	Educational
	Employment
	Relations
	Act,
Gov. 	Code
	sec.	
3540	
et 	seq., 	(hereafter
	EERA)
	states
	in
	pertinent
part:
It
	is
	the 	purpose
	of 	this
	chapter 	to
	promote
the
	improvement
	of 	personnel
	management 	and
employer-employee
	relations
	within 	the
public 	school 	systems 	in 	the
	State 	of
California
	by
	providing
	a
	uniform
	basis
	for
recognizing 	the
	right
	of 	public 	schoolemployees
	to
	join 	organizations 	of
	their
	own
choice, 	to
	be
	represented
	by
	such
organizations 	in
	their 	professional
	and
employment
	relationships
	with
	public 	schoolemployers, 	to
	select
	one 	employee
organization 	as 	the 	exclusive 	representativeof 	the 	employees
	in
	an
	appropriate 	unit,
	and
to 	afford 	certificated
	employees 	a
	voice 	inthe 	formulation 	of 	educational 	policy
.•..
Hereafter
	all
	references 	are 	to 	the 	Government 	Code
	unless
otherwise 	indicated.
Schula 	Vista 	City 	School
	District 	(9/18/78)
	PERB
	DecisionNo. 	70.
6

free 	from 	unwarranted 	interference 	or 	harassment 	by 	rival
organizations. 6
This 	view 	is 	not 	unique, 	having 	been 	frequently 	articulated
by 	the 	National 	Labor 	Relations 	Board, 	other 	public 	agencies
and 	the 	courts, 	which 	review 	legislation 	similar 	to 	the
Educational 	Employment 	Relations 	Act 	(hereafter 	EERA) 	under
which 	this 	case 	arises. 	More 	significantly, 	we 	believe 	this
was 	clearly 	the 	position 	taken 	by 	the 	California 	Legislature
when 	it 	enacted 	the 	EERA. 	Thus, 	section 	3543.l(a) 7
terminates 	the 	right 	of 	a 	nonexclusive 	employee 	organization 	to
represent 	its 	own 	members 	once 	an 	exclusive 	representative 	has
6Mt. 	Diablo 	Unified 	School 	District, 	Santa 	Ana 	Unified
School 	District, 	Capistrano 	Unified 	School 	District 	(12/30/77)
EERB 	Decision 	No. 	44; 	Mount 	Diablo 	Unified 	School 	District
(8/21/78) 	PERB 	Decision 	No. 	68.
7section 	3543.l(a) 	states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that 	once 	an 	employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only 	that 	employee
organization 	may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may make 	reasonable
provisions. for 	the 	dismissal 	of 	individuals
from 	membership.
7

been
	designated. 	Section
	3544.l(c)
8
sets
	up 	a
	limited
	bar
against
	decertification
	of
	the
	exclusive
	representative
	during
the
	term
	of
	a
	collectively
	negotiated
	agreement.
Section 	3544.l(d)
9
establishes
	a
	one-year
	period 	of
exclusivity
	for
	an
	organization
	which
	has 	been
	granted
voluntary 	recognition
	by
	the
	employer.
	By
	rule,
10
PERB
extended
	to
	certified
	representatives
	the
	same
	period
	of
8section 	3544.l(c)
	states:
The
	public
	school
	employer
	shall
	grant
	a
request
	for
	recognition
	filed
	pursuant 	to
Section
	3544
	unless:
There
	is 	currently
	in
	effect
	a
	lawful
written
	agreement
	negotiated
	by
	the
	public
school
	employer
	and
	another
	employee
organization
	covering
	any
	employees
	included
in 	the
	unit
	described 	in 	the
	request 	for
recognition,
	unless
	the
	request
	for
reco'gnition
	is 	filed 	less
	than
	120
	days, 	but
more
	than
	90
	days,
	prior
	to 	the
	expirationdate 	of
	the 	agreement;
...
9section 	3544.l(d)
	states:
The
	public 	school
	employer
	shall
	grant
	a
request
	for
	recognition
	filed
	pursuant 	to
Section
	3544
	unless:
The
	public 	school
	employer
	has, 	within 	the
previous
	12
	months,
	lawfully 	recognized
another
	employee
	organization
	as 	the
exclusive 	representative 	of
	any 	employees
included 	in 	the
	unit 	described 	in 	the
request 	for 	recognition.
• 	• 	• 	o 	e 	o 	• 	• 	• 	o 	• 	e 	• 	e 	c 	• 	• 	o 	• 	c 	o
lOcal.
	Admin. 	Code,
	tit.
	8, 	sec.
	33250 (b)
	states:
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.
8

protection 	against
	challenges
	by
	rival
	organizations 	to
	their
exclusive 	representative
	status.
In
	keeping 	with
	this
	legislative
	direction,
	PERB
	has
	denied
to
	nonexclusive
	organizations,
	once
	recognition
	or
	certification
has 	occurred,
	the
	right
	to 	process 	grievances,
11
file
	a
representation-oriented 	unfair
	charge,
12
take
	a
	member's
	case
to
	arbitration
	under
	a
	contract
	provision 	negotiated
	between
	the
Dis
	· 	t
ric
	· 	t 	an a 	t h e
	exc
1
usive
	·
	representa
t
1ve,
	·
13
or
	meet 	an a
consult
	with
	the
	employer
	on
	wages,
	hours
	and
	terms
	and
conditions 	of
	employment.
14
This
	Board
	believes 	there
	is
	ample
	reason 	to
	apply
	this
protective 	principle
	of
	exclusivity
	to 	the
	facts 	at
	hande
The
	exclusive
	right
	to
	represent
	employees
	in
	a
	designated
unit 	carries
	with
	it
	concomitant
	obligations
	and
	potential
liabilities.
	These
	include 	the 	duty
	of
	conducting
	good
	faith
negotiations, 	representing
	employees
	in 	grievances
	and
	generally
speaking 	to
	their 	interests
	on
	all
	matters 	within 	the
llMount 	Diablo 	Unified 	School
	District,
	Santa
	Ana
	UnifiedSchool
	District,
	Capistrano 	Unified 	School
	District,
	supra,
(12/30/77)
	EERB
	Decision
	No. 	44.
12
Hanford
	Joint
	Union 	High
	School
	District
	Board
	ofTrustees 	(6/27/78)
	PERB
	Decision
	No. 	58.
13Mount
	Diablo 	Unified 	School
	District,
	supra, 	(8/21/78)
PERB
	Decision
	No. 	68.
14san 	Dieguito
	Union 	High 	School
	District
	(9/2/77)
EERB
	Decision
	No. 	22.
9

.
scope 	o f 	represen t a t 10n. 15 In 	the 	exercise 	of 	these 	duties,
the 	exclusive 	representative 	may 	not 	discriminate 	among
employees 	because 	of 	membership 	or 	nonmembership 	in 	any
employee 	organization 	and 	must 	"fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit" 16 (emphasis 	added).
15see 	sec. 	3543.l(a), 	supra 	at 	footnote 	5.
Section 	3543 	states, 	in 	pertinent 	part:
Any 	employee 	may 	at 	any 	time 	present
~rievances 	to 	his 	employer, 	and 	have 	such
grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a 	written 	agreement 	then 	in
effect~ 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution 	of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy 	of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
Section 	3543.6(c) 	states:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	a 	public 	school 	employer 	of 	any
of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
16section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
10

The 	fulfillment 	of 	these 	obligations 	incontestably 	imposes
a 	substantial 	financial 	burden 	on 	the 	exclusive
representative. 	That 	the 	Legislature 	was 	aware 	of 	this 	fact 	is
evident 	from 	two 	sections 	of 	EERA. 	Section 	3543.l(d) 17
authorizes 	the 	deduction 	of 	organizational 	dues 	from 	payroll
for 	any 	employee 	organization 	until 	such 	time 	as 	an 	exclusive
representative 	is 	named, 	at 	which 	time 	only 	that 	exclusive
representative 	shall 	have 	that 	right. 	Section 	3546 18
authorizes 	organizational 	security 	arrangements 	in 	collective
agreements 	which 	require 	nonmembers 	to 	pay 	service 	fees 	to 	the
exclusive 	representative.
17section 	3543.l(d) 	states:
All 	employee 	organizations 	shall 	have 	the
righ~ 	to 	have 	membership 	dues 	deducted
pursuant 	to 	Sections 	13532 	and 	13604.2 	of
the 	Education 	Code, 	until 	such 	time 	as 	an
employee 	organization 	is 	recognized 	as 	the
exclusive 	representative 	for 	any 	of 	the
employees 	in 	an 	appropriate 	unit, 	and 	then
such 	deduction 	as 	to 	any 	employee 	in 	the
negotiating 	unit 	shall 	not 	be 	permissible
except 	to 	the 	exclusive 	representative.
18section 	3546 	states:
Subject 	to 	the 	limitations 	set 	forth 	in 	this
section, 	organizational 	security, 	as
defined, 	shall 	be 	within 	the 	scope 	of
representation.
(a) 	An 	organizational 	security 	arrangement,
in 	order 	to 	be 	effective, 	must 	be 	agreed
upon 	by 	both 	parties 	to 	the 	agreement. 	At
the 	time 	the 	issue 	is 	being 	negotiated, 	the
public 	school 	employer 	may 	require 	that 	the
organizational 	security 	provision 	be 	severed
from 	the 	remainder 	of 	the 	proposed 	agreement
and 	cause 	the 	organizational 	security
11

It
	is
	immediately
	apparent
	that
	enactment
	of
	the
	latter
provision
	was
	to 	serve
	two
	purposes.
	One 	was
	simply
	to
	make
	it
possible
	that
	employees
	who
	benefit
	from
	the
	services
	performed
	on
their
	behalf
	by
	the
	exclusive
	representative
	be
	required 	to
	share
the
	cost
	of
	those
	services
	with
	the
	organization's
	members.
	A
second,
	and
	closely 	related
	purpose,
	was
	to 	provide
	to 	the
exclusive 	representative
	a
	financial
	quid	
E!.2.	
quo
	for
	its
statutory
	obligation
	of.fair
	representation.
	We
	believe
underlying
	both
	purposes,
	and
	particularly
	the 	second,
	is
	the
desire
	to 	provide 	the
	exclusive
	representative
	with
	the
	financial
stability
	that
	is
	likely
	to
	be
	essential
	to 	the
	responsible
performance
	of
	its
	duties
	and,
	therefore,
	to 	the
	stability
	of
	its
relationship
	with
	the
	employer.
Were
	PERB_
to
	encourage
	rival
	organizations
	to
	attack 	that
financial
	stability
	by
	allowing
	them
	to
	file
	requests 	for
re.scission
	elections,
	it
	would 	be
	acting
	in 	derogation 	of
	the
perceived
	statutory
	purpose.
	The
	Legislature
	has 	seen
	fit
	to
prov1s1on
	to
	be
	voted
	upon
	separately	
by	
all
	members
	in 	the
appropriate 	negotiating 	unit,
	in 	accordance 	with
	rules
	and
regulations
	promulgated
	by
	the 	board.
	Upon 	such 	a
	vote, 	the
organizational 	security 	provision 	will
	become
	effective
	only
	if
a
	majority 	of 	those
	members
	of
	the
	negotiating 	unit 	votingapprove 	the 	agreement.
	Such
	vote
	shall
	not
	be 	deemed
	to 	either
ratify
	or
	defeat 	the 	remaining 	provisions 	of
	the 	proposed
agreement.
(b) 	An
	organizational 	security
	arrangementwhich
	is 	in 	effect
	may 	be
	rescinded
	by
	majority 	vote
of 	the 	employees 	in 	the 	negotiating 	unit 	covered 	by
such 	arrangement 	in 	accordance 	with 	rules
	and
regulations 	promulgated 	by 	the 	board.
12

close
	the
	main
	gates 	of
	representational
	activity
	to
nonexclusive
	employee
	organizations.
	It
	would 	be 	an
	error
	to
open
	a
	side
	door
	to
	intruders
	whose
	only 	purpose 	might
	be
	the
harassment
	of
	their
	successful 	competitors.
We
	are
	mindful
	that
	in
	so
	deciding
	we
	do
	not
	foreclose
relief
	from 	an
	organizational 	~ecurity 	provision
	opposed
	by
	the
affected
	employees.
	Section
	3546(b)
	was
	designed
	for
	that
purpose.
Board
	Rule
	34020
	allows
	a
	group
	of
	employees
	to
	file
	a
petition
	to 	rescind
	an
	existing 	organizational
	security
agreement.
	While
	employee
	organizations 	necessarily 	include
groupings 	of
	employees,
	it
	does
	not 	follow
	that
	a	
11
group
	of
employees
11
	is
	synonymous
	with
	an
	11
employee
	organization."
	An
organization
	m~y
	have 	no 	members
	affected
	by
	the
	organizational
security
	agree~ent,
	and
	the
	statute
	and
	PERB
	rule
	contemplate
that
	affected
	employees
	may
	initiate
	the
	rescission 	process.
For
	the 	foregoing 	reasons, 	the
	Board
	finds
	that
	UTO
	did
	not
have
	standing 	to 	request
	a
	rescission 	election.
UTO
	and 	Ms.
	Bissell
	also
	have
	filed
	objections 	to 	the
organizational 	election
	conducted 	by	
the 	regional
	director.
However,
	the
	Board
	further
	concludes
	that 	in 	the 	context 	of
organizational 	security 	elections
	under 	Board
	rule
	34000,
19 a
19cal.
	Admin. 	Code,
	tit.
	a,
	sec.
	34000, 	which
	states:
(a)
	Pursuant 	to 	section
	3546(a) 	of 	the 	Act,an 	employer 	may
	serve 	written 	notice
	on 	an
exclusive 	representative 	that
	a 	proposed
organizational 	security 	provision 	shall
	be
voted 	upon
	separately
	from 	the 	remainder 	of
13

"party" 	eligible 	to 	file 	objections 	to 	the 	conduct 	thereto 	is
the 	employer 	or 	the 	employee 	organization 	that 	would 	benefit
from 	the 	implementation 	of 	the 	organizational 	security
provision. 	Only 	the 	employer 	has 	a 	right 	under 	section 	3546(a)
to 	cause 	an 	election 	to 	be 	held 	to 	determine 	whether 	the
collective 	negotiations 	agreement 	between 	the 	employer 	and 	the
exclusive 	representative 	should 	contain 	an 	organizational
security 	agreement. 	The 	employer, 	as 	petitioner, 	clearly 	has
the 	proposed 	agreement 	by 	the 	members 	of 	the
unit.
(b) 	The 	notice 	to 	the 	exclusive
representative 	shall 	be 	made 	only 	after
agreement 	has 	been 	reached 	on 	an
organizational 	security 	arrangement 	and
prior 	to 	ratification 	of 	the 	entire 	proposed
agreement.
(c) 	The 	employer 	shall 	concurrently 	send 	a
copy 	of 	the 	notice 	to 	the 	regional 	office.
(d) 	The 	notice 	shall 	contain 	the 	following
information:
(1) 	The 	name, 	address 	and 	county 	of 	the
employer;
(2) 	The 	name 	and 	address 	of 	the
employee 	organization 	which 	is 	the 	exclusive
representative 	of 	the 	employees 	in 	the 	unit;
(3) 	A description 	of 	the 	unit;
(4) 	The 	proposed 	organizational
security 	arrangement;
(5) 	The 	date 	agreement 	was 	reached 	on
the 	proposed 	organizational 	security
agreement;
(6) 	The 	date 	agreement 	was 	reached 	on
the 	proposed 	agreement.
14

standing
	to
	object
	to
	alleged
	irregularities
	in
	the
	conduct 	of
such
	an
	election.
	Further,
_the
	exclusive
	representative
	which
the
	organizational 	security
	clause
	would
	benefit
	similarly
	has
standing 	to
	object
	to
	alleged
	irregularities
	in 	the 	conduct
	of
an
	election.
The
	Board, 	however, 	draws
	the
	line 	at 	this
	point,
	and
declines
	to
	extend
	either
	to 	nonexclusive
	employee
organizations
	or
	to
	individual
	employees
	in 	the
	negotiations
unit
	a
	right
	to
	file
	objections
	to 	the 	conduct
	of
organizational 	security 	elections.
20
To
	permit
	rival
organizations
	to
	object
	to 	the
	conduct
	of
	organizational
security 	elections
	would
	encourage 	the
	same
	mischief
	that
	the
Board
	seeks
	to 	prevent
	above
	in 	disallowing
	nonexclusive
employee
	organizations
	from
	petitioning
	to
	rescind
organizational 	security
	arrangements 	in
	effect
	between
	the
exclusive 	representative
	and
	the 	employer.
In
	addition,
	to 	allow
	individual
	employees
	to
	object 	to
	the
conduct 	of 	organizational 	security 	elections
	could 	cause
20The 	Board
	takes 	cognizance
	of 	cases 	decided
	by
	the
National
	Labor
	Relations
	Board
	(hereafter
	NLRB)
	in 	analogous
areas 	of
	law.
	Fire 	Fighters
	Union
	v.
	City 	of 	Vallejo
	(1974) 	12
Cal.3d
	608 	[87
	LRRM
	2453]. 	Sweetwater
	Union 	High
	School
District
	(11/23/76)
	EERB
	Decision
	No. 	4.
	In 	the
	context 	of
NLRB
	representation 	elections,
	the
	NLRB
	has
	held
	that 	the
	term
"party" 	for 	the 	purpose
	of
	filing 	objections 	to
	representation
elections 	includes 	only 	the 	employer, 	the
	petitioner,
	and 	any
labor 	organization
	whose 	name
	appears
	on
	the
	ballot
	as
	a
choice.
	See
	NLRB
	Casehandling 	manual, 	Representation
Proceedings, 	sec. 	11392.3; 	Nashville 	Corp. 	(1948) 	77
	NLRB
	145
[21
	LRRM
	1334]; 	Celanese 	Corp. 	of
	America 	(1949) 	87
	NLRB
	552
[25
	LRRM
	1144]. 	Also 	see 	United 	Facultv 	of 	Florida
	v. 	Branson
(Fla. 	Dist.Ct.App.
	1977) 	350 	So.2d 	489 	r96
	LRRM
	2948].
15

endless 	challenges 	to
	valid 	election
	results,
	either
	because
	of
an
	employee's
	personal
	distaste
	for
	mandatory 	payment,
dissatisfaction
	with 	the
	exclusive
	representative
	or
	because
	of
an
	employee's
	desire
	to 	aide
	a
	rival
	organization 	in
frustrating
	the
	exclusive
	representative's 	relationships
	with
the
	employees
	and
	the
	employer.
	The
	least
	consequence
	of
	these
occurrences
	would 	be 	a
	substantial
	delay 	in
	the 	implementation
of
	the
	organizational 	security
	arrangement 	or
	an
	intimidating
effect
	on
	the
	use
	of 	disputed
	funds
	by
	the
	exclusive
representative
	while 	the
	objections
	are
	being
	resolved
	by
hearing
	and
	appeal.
	The
	Board
	firmly
	believes
	that
	these
consequences
	are 	to
	be
	avoided.
The
	Board
	therefore
	concludes
	that
	in
	the
	context
	of
organizational 	security 	elections 	arising
	under
	Board
	rule
34000,	
a	
"party"
	eligible
	to
	file
	objections
	is 	either
	the
employer 	or 	the 	exclusive 	representative
	favored
	by
	the
organizational 	security
	clause 	in
	question.·
	Accordingly,
	we
find
	that 	neither
	UTO
	nor
	Ms.
	Bissell 	is
	a
	"party" 	for 	the
purpose
	of
	filing
	objections 	to 	the
	election
	in
	this 	case.
Since
	there
	was 	no
	valid
	petition
	to 	rescind
	an
organizational 	security
	arrangement 	under 	Board
	rule
	34020
present 	in
	this
	case, 	the
	Board
	reserves 	ruling
	on
	the 	question
of
	who 	may
	object 	to 	the 	conduct 	of 	elections
	to 	rescind
organizational 	security 	elections
	held 	under
	that 	rule.
16

ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
(1) 	The 	United 	Teachers 	of 	Oakland 	did 	not 	have 	standing 	to
petition 	for 	rescission 	of 	the 	organizational 	security
arrangement 	in 	effect 	between, Oakland 	Unified 	School 	District
and 	Oakland 	Education 	Association, 	CTA/NEA.
(2) 	The 	regional 	director's 	determination 	that 	United
Teachers 	of 	Oakland 	and 	Ms. 	Barbara 	Bissell 	were 	without
standing 	to 	file 	objections 	to 	the 	organizational 	security
election 	conducted 	by 	the 	Board 	is 	sustained.
(3) 	The 	results 	of 	the 	organizational 	security 	election
shall 	be .certified 	by 	the 	regional 	director 	in 	accordance 	with
the 	tally 	of 	the 	ballots 	cast.
h 	~,By: 	/ 	arry 	Gluck, 	Chairperson
(Jeflou 	Cossack 	Twohey, 	Member U
17

!,TAT( or
CAlllORNIA
COMUtlO C 	t
:owN
11!.,
C ,.,no,
PUBLIC 	EMPLOYMENT RELATION:> 	BOARD
Son Francisco Regional Office
'-77
Posf
St., 9th Floor
)on Francisco, California
	94108
(415) 557-1350
April
	28,
	1978.
Mr.
	Stewart
WeinbergVan
Bourg,
	Allen,
	Weingerg
	& Rogers·45
	Polk
Street
San
Francisco,
	CA
94102
CERTIFIED
MAIL-RETURN
RECEIPT
	REQUESTED
Re:
	Organizational Security Election,
	Oakland
	Unified
	School
District
Case No.
	SF-OS-~,
	SF-0S-37	
CS°'-<3
)	.
Dear
Mr. 	Weinberg:
On
April
	13, 	1978
we
	received your
	objections
	to
	the conduct
	of
	the
April
	6,
1978
	organizational
	security election
which was
held
	in 	the
	certificated 	unit
of
	the
	Oakland
	Unified
	School
District.
The
	election
was
	conducted
	pursuant 	to
a	
request of
	the
	District
	made
	to	
PERB
on
	February
	17,
	1978 and was
	not
	established
	pursuant 	to	
a	
petition
	(SF-0S-37)
filed
	by
	the
United Teachers
	of
Oakland on March
	7,
	1978. 	There were
conflicting
views	
by
	the
	Oakland
	Education
Association
	and
	the United'
Teachers
of
Oakland
	regarding 	the
	coverage
	of
	the
	election.
	Therefore,	
a
meeting
	was
held
	at
	PERB
offices	
O?
March 	9, 	1978. 	At
	this
	meeting,
	it
	was
	the
	stated
position
	of
	the
	Oakland
	Education
Association 	that
	all
	employees 	were
	covered
by
	the
	election
which was
	requested
	on
	February
	17
	by
	the
	District.
	This
would
	include
	newly
hired
	employees which
	were
	the
	subject
	of 	the
	Uni
tee
Teachers 	of
	Oakland March 	7
petition.
With
	that
	understanding, 	the United Teachers
	of
Oakland
	petition
	became 	=::>ot
and 	Case No. 	SF-OS-37 was
	closed
	by
	the mutual agreement
	of
Oakland
	EducationAssociation,
	United Teachers 	of
Oakland and
	the
	District.
	The
	United
	Teachers
of
	Oakland
	therefore
	did 	not
	gain 	standing 	to
	become a
	party
	to 	the
	April
election
6
pursuant 	to 	the
	March 	7
petition.
	7he
	objections
	are
	therefore
dismissed
	due
	to
	lack
	of
	standing of
	the
	petitioner.
	The
	results
	of
	the
election 	shall
	be
	certified,
	pending an
	appeal
	to
	this Administrative
	R:..:li:1_g.
An	
appeal 	to
	this 	decision
may
	be made
within
	ten calendar
	days
	of
	servtce
	of
this 	action, 	stating
	the
	facts
	upon which
	the 	appeal
	is
	based
	and
	filed
	...
·i
th
the 	Executive Director;
	Mr.
	Charles Cole,
	at
	923
	12th
Street,
	Suite
	201,
Sacramento,
	California
	95814. 	Copies
	of
	any
	appeal
	must be
	served
	upon
	all
other
	parties
	to
	this 	action
with 	an
	additio~a1
	copy
	to 	the
	San
FranciscoRegional 	Office.
James
	W. 	Tamm
Regional 	Director
JWT:rcd
Enclosures
cc: 	Oakland Education Association
Oakland Unified School 	District
=