Jefferson School District (PERB A082E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JEFFERSON
	SCHOOL
	DISTRICT,
Employer,
and
JEFFERSON 	FEDERATION
	OF
	TEACHERS,
LOCAL
	3267,
	AFT, 	AFL-CIO,
Employee
	Organization,
and
JEFFERSON
	CLASSROOM
	TEACHERS
ASSOCIATION,
Employee
	Organization,
APPELLANT.
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Case
	Nos.
	SF-D-12;
SF-D-41
	(SF-C0-6;
SF-CE-33)
PERB
	Order
:No.,
Ad-82
Administrative
	Appeal
March 	7, 	1980
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)
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Appearances: 	·William F.
	Kay,
	Attorney 	for
	Jefferson
	School
District;
	Stewart
	Weinberg,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg	
& Roger)
	for 	Jefferson 	Federation 	of 	Teachers, 	Local
3267 	AFT, 	AFL-CIO; 	Duane 	B.
	Beeson,
	Attorney
	(Beeson,
	Tayer,
Kovach 	&
Silbert)
	for 	Jefferson
	Classroom
	Teachers
	Association.
Before 	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
The
	Jefferson
	Classroom 	Teachers
	Association
	(hereafter
JCTA)
	appeals
	from 	a
	determination 	by 	the
	San
	Francisco
regional 	director
	of 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board)
	to
	proceed
	to
	a
	decertification
election 	in 	the 	Jefferson
	School
	District 	(hereafter 	District}
notwithstanding 	the 	pendency 	of 	mutual
	refusal 	to 	negotiate

1	
charges.	
For
	the 	reasons
	discussed
	below,
	the
	Board
	itself
affirms
	the
	regional
	director's
	decision.
FACTS
As
	detailed
	at
	greater
	length,
	in
	Jefferson
	School
	District
(6/29/79)
	PERB
	Decision
	No.
	Ad-66,
	JCTA
	has
	been
	the
	exclusive
representative
	of 	the
	District's
	certificated
	personnel
	since
June
	21,
	1976.
	Early 	in
	their 	relationship,
	each
	party
	filed
an
	unfair
	practice
	charge
	alleging
	that
	the
	other
	had
	failed
and
	refused 	to
	meet
	and
	negotiate
	in
	good
	faith.2	
These
charges
	were
	heard
	and
	resolved
	by 	a
	PERB
	hearing
	officer
	who
sustained
	charges
	that
	the
	District
	had
	refused
	to 	negotiate
	on
1
Board
	rule
	32360
	(8
	Cal.
	Admin. 	Code
	sec.
	32360)
	governs
appeals
	from
	PERB
	administrative 	decisions.
2
on	
November
	2,
	1976,
	the
	District
	alleged
	that
	JCTA
	had
violated 	section
	3543.6(c)
	of 	the 	Educational
	Employment
Relations
	Act
	(Gov. 	Code
	sec.
	3540
	et
	seq., 	hereafter
	EERA
	or
Act),
	which 	makes
	it
	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.
On
	November
	15, 	1976,
	JCTA
	in 	turn 	alleged 	that
	the
District
	had
	violated
	Government 	Code
	section 	3543.S(c),
	whichmakes
	it
	unlawful 	for
	a
	public 	school
	employer
	to:
Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
	good
faith
	with
	an
	exclusive 	representative.
All
	section 	references 	herein 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted.
2

27
	items.3	
The
	charges
	against
	JCTA
	were
	dismissed.
	Both
parties
	have
	filed
	exceptions
	to
	the 	proposed
	decision.4
On
	September 	23, 	1977,
	the
	Jefferson
	Federation
	of
Teachers,
	Local 	3267,
	AFT, 	AFL-CIO
	(hereafter
	JFT)
	petitioned
to 	decertify
	JCTA.5 	At
	that
	time,
	the
	PERB
	executive
director
	stayed
	the
	decertification 	election
	pending
	resolution
of
	the
	unfair
	practice
	charges.6	
On
	March
	29, 	1979,
	JFT
3The
	Board
	notes
	that
	at 	least
	five
	of 	these
	items
	are
	in
fact
	incorporated 	in
	some 	form
	into
	the
	agreement
	the
	parties
reached. 	In
	addition,
	the
	parties
	reached
	agreement
	in
	some
form 	on
	at 	least
	three
	items
	that
	the 	hearing
	officer
	ruled
were
	not 	in 	scope.
	See
	note 	11,
	infra.
4Notwithstanding
	these
	pending
	unfair
	charges, 	the
parties
	entered
	into
	a
	written
	~9reement 	on
	February
	6,
	1978,
which
	expired
	on
	June 	30,
	1979.
Soecertification 	petitions
	are 	authorized	
by	
section
3544.5
	which
	provides 	in
	pertinent 	part:
A
petition
	may 	be
	filed
	with 	the 	board, 	inaccordance 	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,
	...
6rn 	1977, 	the
	San
	Francisco 	regional 	director 	directed
	a
decertification 	election 	but
	on
	appeal 	the 	executive 	directorreversed 	this 	determination
	and
	stayed 	the 	election
	pending
resolution 	of 	the 	unfair 	practice 	charges.
	The 	Board
	itself
sustained 	the 	executive 	director's 	decision. 	(Jefferson 	School
District
	(12/30/77}
	EERB
	Order 	No. 	Ad-22.)
. 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. 	. 	. 	. . . 	. 	. .
3

filed
	a
	second
	petition
	to
	decertify
	JCTA.
	Apparently
	without
conducting
	any
	new
	investigation
	to
	ascertain
	whether
	the
unfair 	practice
	charges,
	if
	true,
	would
	preclude
	employees
	from
voting
	freely,
	the
	San
	Francisco
	regional
	director
	perpetuated
the
	stay
	of
	the
	decertification 	election 	until
	the
	resolution
of
	the
	unfair
	practice
	charges.
	Upon
	appeal
	by
	JFT,
	the
	Board
itself
	held
	that
	PERB's
	discretion
	to
	stay
	a
	decertification
election
	when
	unfair
	practice
	charges
	are
	pending
	may
	not
	be
exercised
	by
	rote.
	Accordingly 	the 	case
	was 	remanded
	to
	the
regional 	director 	to
	conduct
	an
	investigation 	to
	determine
whether
	the
	pending
	unfair
	charges 	should 	continue 	to
	block 	the
decertification 	election.
	(Jefferson
	School
	District,
	supra,
PERB
	Decision
	No. 	Ad-66.}
Based 	on
	the
	results
	of
	that 	investigation,
	the
	regional
director
	determined
	that
	the
	pending
	unfair
	practice
	charges
should
	no
	longer 	block 	the
	decertification 	election.
Summarizing
	the 	reasons 	for 	his 	decision,
	the
	regional
	director
said: 
In
	light
	of 	the 	nature 	of 	the
	violations
involved: 	the
	fact 	that
	they 	took
	place
	over
two
	years
	ago;
	that
	a
	contract
	was
eventually 	signed;
	that
	no
	negotiations 	are
presently
	underway
	for 	future 	contracts;
that 	there 	are 	currently
	no
	local 	elected
officials
	of 	the
	JCTA, 	and
	that
	the
	JCTA
members
	themselves
	have
	indicated 	theirdesire 	to 	proceed 	to
	an
	election,
	I
	feel 	the
charges
	will
	not
	have 	a 	tendency 	to
interfere
	with 	the 	free 	choice 	of 	theemployees 	in
	an
	election.
	Under
	these
circumstances, 	the 	policies 	of 	the 	Act
	will
be
	best 	effectuated
	by 	allowing 	the
4

employees
	an
	opportunity
	to
	decide 	the
question
	of
	representation,
	as
	is 	their
desire.
	Continuing
	to
	block
	the
	election
	in
this
	case
	would
	frustrate
	the
	fundamental
right
	of
	employees
	to
	be
	represented
	by
	an
employee
	organization
	of
	their
	choice.?
DISCUSSION
Board
	rule
	33620
	(8
	Cal.
	Admin. 	Code
	sec.
	33620)
	gives
	PERB
the
	discretion
	to 	stay
	a
	decertification 	election
	pending
	the
resolution
	of
	unfair
	practice
	charges
	relating
	to 	the
	unit
	in
question.
8	
This 	»blocking 	charge
	rule" 	serves 	to
	insulate
	an
7
Board
	rule
	32350
	(8
	Cal.
	Admin. 	Code
	sec.
	32350)
requires 	administrative 	decisions 	to
	»contain
	a
	statement 	of
the 	issues,
	fact,
	law
	or
	rationale
	used
	as 	the
	method
	or 	basis
for
	reaching
	determination."
On
	the
	same
	day
	that
	a
	majo~ity
	of 	the
	Board
	agreed
	to
	sign
this
	Decision,
	we
	received
	word 	from
	the
	Executive
	Assistant 	to
the
	Board
	that
	the
	San
	Francisco 	regional
	director
	had
	received
two 	communicat-ions
	relating
	to
	this
	case.
	The 	San
	Francisco
regional 	director
	simply
	transmitted 	the
	letters
	to 	the
	Board
without
	comment 	and
	did 	not
	indicate
	they 	caused
	him
	to
	change
his
	determination.
It
	is
	not
	uncommon
	for
	some 	amount
	of
	time
	to 	elapse
between
	the
	time
	an
	administrative
	appeal
	is
	docketed
	and
	thetime
	it
	is
	considered
	by
	the
	Board
	itself.
	Obviously
circumstances
	may
	change
	during
	this
	time, 	yet
	this
	Board's
task
	is
	to 	evaluate 	the
	field
	in
	light
	of 	the
	facts 	thatexisted
	when
	the 	disputed 	administrative 	determination
	was
rendered. 	Unless 	subsequent 	events
	change
	the
	administrativedetermination
	itself,
	our
	role 	is
	simply 	to 	decide
	if
	the
decision
	was
	reasonably 	supported
	by
	the
	facts 	at
	the 	time
	it
was 	made.
	Accordingly 	the 	communications
	the
	San
	Francisco
regional 	director
	received 	did 	not
	alter
	the 	Board's 	Decision
herein.
	(See 	Board
	rule
	31090
	(8
	Cal.
	Admin. 	Code
	sec. 	31090.))
8Board
	rule
	33620
	(8
	Cal.
	Admin. 	Code
	sec. 	33620)
provides: 
The 	Board 	may
	stay
	an
	election
	pending 	the
resolution 	of 	an
	unfair 	practice
	charge
relating 	to 	the 	unit 	petitioned 	for.[Emphasis 	added.] 5

election
	from
	unfair
	practices 	that
	may
	influence
	its
	outcome.
In
	this
	way
	employees
	are
	insured 	the
	right
	to
	freely
	select
their
	own
	representative
	without
	risk 	that 	their
	votes
	may 	be
influenced
	by
	or
	cast
	in
	response
	to
	an
	unfair
	practice.
In
	Jefferson
	School
	District,
	supra,
	PERB
	Decision
	No.
AD-66,
	the
	Board
	stated 	that
	the 	blocking 	charge
	rule
	will
	not
be
	exercised
	mechanically;
	each
	case
	must 	be
	evaluated
	on
	its
own
	facts
	to
	determine
	whether
	staying 	the
	election
	will
further
	or
	deter
	the 	purposes 	of 	the
	Act
	to
	enable
	public
school
	employees
	to
	determine
	whether
	and 	by
	whom
	they
	desire
to
	be
	represented 	in
	their
	employment
	relationship
	with
	the
public
	school
	employer.
	Accordingly,
	in
	Jefferson, 	supra,
	the
Board 	unanimously
	instructed 	the-regional 	director
	to:
•.•
	conduct
	an
	investigation
	to
	determinewhether
	a
	danger 	remains
	that
	the
	District's
alleged
	unlawful 	conduct
	will
	so
	affect
	the
election
	process 	as
	to 	prevent 	the
	employeesfrom
	freely 	selecting 	their
	exclusive
representative.
	[Emphasis
	added.]
Because
	we
	directed
	a
	determination, 	not
	just
	an
investigation,
	and
	then
	directed
	the 	regional
	director
	not 	to
be
	mechanical,
	it
	is
	obvious
	that
	the
	Board
	intended 	the
determination 	to
	be 	based 	on
	the
	judgment 	and
	discretion 	of 	the
regional 	director
	as 	applied 	to 	the
	facts 	ascertained 	in 	the
investigation. 	If
	we
	had
	not 	so
	intended, 	the
	remand
	for
"determination"
	would 	have 	been 	meaningless. 	In 	other 	words,
in 	Jefferson, 	supra, 	this
	Board
	expressly 	conferred
	on
	the
	San
6

Francisco 	regional
	director
	its
	power
	to
	make
	the
	discretionary
determination 	of
	whether
	to 	perpetuate
	or
	dissolve
	the 	blocking
charge
	rule
	in
	this
	case.
9	
We
	directed
	that 	this 	discretion
not
	be
	exercised
	by
	rote,
	but
	that
	it
	be
	based
	on
	facts
ascertained
	in
	an
	investigation.
	We
	indicated
	that
	the
election
	should
	continue 	to
	be
	stayed
	only
	if
	the
	facts
ascertained
	in 	the
	regional
	director's
	investigation
	revealed
that:
...
	the
	employees'
	dissatisfaction
	with
their
	representative
	is
	in
	all
	likelihood
attributable
	to
	the 	employer's
	unfair
practices 	rather
	than
	to
	the
	exclusive
representative's 	failure
	to
	respond
	to
	and
serve 	the
	needs
	of 	the
	employees
	it
represents. 	[Jeff
er
son 	School
	District,
supra,
	PERB
	Decision
	No. 	Ad-66
	at
	pages
	5-6.J
In
	the
	instant
	appeal,
	JCTA
	does
	not 	argue
	that
	no
investigation
~as 	undertaken,
	nor
	that
	the
	San
	Francisco
9section
	3541.3(k)
	authorizes 	the
	Board
	to 	delegate
certain
	of
	its
	powers.
The
	delegation
	of 	the 	Board's
	power
	to 	stay
	decertificationelections
	in 	Jefferson, 	supra,
	is 	consistent
	with 	the
	policy
expressed 	in
	Board
	Resolution
	No. 	14
	(4/4/78)
	which
	provides 	in
pertinent 	part:
Resolved
	that:
(1)
	It
	shall
	be
	the 	policy 	of 	regional
staff
	to 	evaluate
	each
	representation 	case
and
	decertification
	case
	where 	pending
unfair 	practice
	charges
	have 	been
	filed
	with
respect 	to 	the 	negotiating 	unit 	in
question. 	In 	each 	case
	where
	there 	is
	a
pending 	unfair 	practice 	charge,
	a
determination 	shall
	be 	made 	on 	whether 	or
not 	to 	conduct 	the 	election, 	stay 	the
election 	or 	impound
	the 	ballots.
7

regional
	director's
	investigation
	was
	superficial.
	It
	does
	not
quarrel
	with 	the
	facts
	the
	investigation
	revealed,
	nor
	argue
that
	important 	undisclosed
	facts
	compel
	a
	different
determination. 	Instead
	JCTA
	attacks
	the
	decision
	itself.
	It
disagrees
	with 	the
	regional
	director's 	interpretation,
	urging
that
	the
	facts
	mandate
	the 	opposite 	conclusion.
	Since
	there
	is
no
	controversy
	concerning 	the
	investigation
	and
	the
	facts
	it
revealed, 	the
	only
	question 	presented
	by
	this
	appeal
	is
	when
and
	on
	what
	basis
	the
	Board
	will
	overturn
	a
	determination 	to
dissolve
	a
	decertification 	election
	block
	and
	substitute
	its
own
	judgment
	for
	that
	of 	the
	regional
	director.
Because
	Jefferson,
	supra,
	PERB
	Decision
	No. 	Ad-66
	delegated
to
	the
	San
	Francisco 	regional 	di£ector 	the 	Board's
	power
	to
make 	a
	discre~ionary 	decision 	to 	stay
	or 	conduct
	a
decertification 	election,
	we
	believe
	that
	the
	appropriate
inquiry
	upon
	appeal
	is
	whether
	that 	discretion
	has 	been
abusea.10
lOLike
	PERB,
	the 	National
	Labor
	Relations
	Board
(hereafter
	NLRB)
	has
	delegated
	its
	powers 	over
	representationmatters 	to 	the 	regional
	directors,
	whose
	decisions
	may
	be
reviewed 	only 	for
	certain
	enumerated 	"compelling
	reasons":
(1)
	That
	a
	substantial 	question 	of
	law
	or
policy 	is 	raised
	because 	of 	(i) 	the 	absence
of,
	or
	(ii)
	a
	departure
	from,
	officially
reported
	Board
	precedent.
(2) 	That 	the 	regional 	director's 	decision
on 	a
	substantial 	factual 	issue 	is 	clearly
8

This
	standard 	of
	review
	is
	consonant
	with
	that
	applied
	in
Oakdale
	Union
	Elementary 	School
	District
	(9/13/78)
	PERB
Decision
	No.
	Ad-46,
	in
	which
	in
	reviewing
	the
	Sacramento
regional
	director's
	decision 	to
	deny 	a
	request 	for
post-factfinding
	mediation
	between
	the
	Oakdale
	Union
	Elementary
Teachers
	Association
	and
	the
	Oakdale
	Union
	Elementary 	School
District
	a 	unanimous 	Board
	said:
EERA
	does
	not
	mandate
	post-factfinding
mediation;
	it
	merely
	authorizes
	its
occurrence
..
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. 	. 	. 	.
erroneous
	on
	the 	record
	and
	such
	error
prejudicially 	affects
	tne
	rights
	of
	a
	party.
(3)
	~hat 	the
	conduct
	of 	the 	hearing 	or
	any
ruling
	made
	in 	connection 	with
	theproceeding
	has
	resulted
	in
	prejudicial 	error.
(4)
	That
	there
	are 	compelling 	reasons 	for
reconsideration
	of
	an
	important
	Board
	rule
or
	policy.
	(NLRB
	rule
	102.
67 ( c) 	( 29 	CFR
sec.
	102.67(c)
(1975)}
.)
In 	our 	view, 	such
	a
	rule 	serves 	to
	uphold
	the
	regional
director's
	determinations 	except
	when
	there
	is
	a
	strong 	reason
not 	to
	do
	so.
In
	a
	similar
	manner,
	California 	appellate 	courts
	will
	not
disturb
	trial
	court 	findings
	that
	are 	reasonably
	based 	on
	the
facts
	of 	the 	case,
	whether 	or 	not 	the 	reviewing
	court
	would
have 	reached 	the
	same
	conclusion.
	(See,
	e.g. 	Continental
Baking 	Co.
	v. 	Katz 	(1968) 	68
	Cal.2d 	512, 	527, 	and
	cases
	cited
therein.
	See
	also,
	e.g.,
	In 	re 	Marriage 	of
	Lopez 	(1974) 	38
Cal.App.3d 	93, 	114; 	Esgro
	Central, 	Inc. 	v. 	General 	Ins.
	Co.
(1971) 	20
	Cal.App.3d 	1054, 	1064; 	In 	re 	Marriage 	of 	Carter
(1971) 	19 	Cal.App.3d 	479, 	494.)
9

A
determination 	of
	whether
	further
	mediation
would 	be
	productive
	requires
	knowledge
	of
the
	negotiating
	history
	of 	the
	parties
	and
their
	current
	relationship.
	This
	knowledge
is
	best
	available
	to
	the
	regional
	directors
and
	their
	staffs,
	who
	are 	in
	direct
	contact
with 	both
	the
	parties
	and
	involved
neutrals.
	The
	Board
	therefore 	finds
	that
the
	decision
	as
	to
	whether
	post-factfinding
mediation
	would 	be
	beneficial
	to
	the
	parties
in 	helping
	them
	reach
	agreement
	is
	best
	left
to 	the
	discretion
	of 	the
	regional
	director
after 	satisfactory
	investigation.
In
	this
	case, 	the
	regional
	office
	staff
	made
a
	careful 	investigation,
	discussing 	thecircumstances 	with 	both 	the
	parties
	and
	the
neutrals.
	From
	the
	discussions,
	the
regional
	director
	decided
	that 	further
mediation
	would
	neither
	help 	the
	parties'
relationship
	nor
	further
	their
	reachingagreement.
	He
	therefore
	denied
post-factfinding
	mediation.
	The
	Board
affirms
	that 	decision.
The
	r~al 	issue
	is
	whether 	such
	mediation
will
	help 	the
	parties
	reach 	agreement.
	The
regional
	director
	determined
	that
	it
	would
not,
	and
	the
	Board
	affirms
	this
determination
	as
	within 	his
	discretion.[Id.
	at
	4-5,
	emphasis 	added.]
In 	Oakdale,
	supra,
	PERB
	Decision
	No. 	Ad-46
	we
	found
	that
	as
long 	as 	the 	regional 	director
	conducts
	a
	satisfactory
investigation
	and
	adduces
	facts 	that
	reasonably 	support 	her 	or
his 	decision, 	the
	Board
	will
	not 	overturn 	the 	regional
director's
	decision.
	This
	is 	true
	whether 	or 	not
	we
	would 	have
made
	the
	same
	determination 	ourselves.
In 	the 	instant 	case,
	based 	on
	facts 	ascertained 	in
	an
investigation
	which 	even 	the 	challenger 	does 	not 	contest, 	the
10

regional
	director
	concluded
	that
	the
	conduct
	alleged 	in
	the
pending
	unfair
	practice
	charges
	would
	not
	impede
	the
	employees
from
	freely
	exercising
	their
	franchise
	because:
The
	parties
	themselves
	have
	treated
	this
case 	as
	one
	involving
	a
	technical 	refusal
	to
bargain, 	rather
	than
	one
	in
	which
	overall
good
	or
	bad
	faith
	in 	negotiation
	is
	an
issue.
	The
	issue
	is
	whether
	certain
	items
are 	within
	the
	scope
	of
	representation.
They 	do
	not 	involve 	charges
	that
	the
District 	tried
	to
	undermine
	the
	exclusive
representative
	through
	actual
	bad
	faith
bargaining.
	Subsequent
	to
	the
	filing
	ofcharges, 	the
	parties
	actually
	entered
	into
	a
contract
	which 	was
	apparently 	administered
successfully
	for
	its
	duration.
The
	regional
	director
	also
	considered
	that
	over
	two
	years
had
	passed
	since
	the
	alleged 	unfair
	practices
	occurrea,11	
and
that
	the
	employees
	are
	now
	without
	effective 	representation:
JCTA
	has
	no
	remaining
	elected
	officers,
	and 	no
	negotiations
	are
underway.
	Finally,
	the
	regional
	director
	considered 	the
	fact
that
	the
	employees
	themselves 	voted
	to
	file
	a
	request
	to
llwithout 	evaluating 	the
	contract,
	we
	note
	that
	its
substantive 	provisions 	included:
	a
	salary
	schedule 	including
step
	and 	column
	increases 	for
	1977-78 	and 	1978-79;
specification
	of 	the
	number
	of
	days
	in 	the
	work
	year
	and
	the
number
	of 	hours 	in 	the
	work 	day 	and 	week;
	hospital-medical,
dental,
	life
	and
	worker's
	compensation
	insurance; 	sick 	leave,
extended 	leave 	for
	illness
	or
	accident, 	personal 	necessity
leave, 	industrial
	accident
	and
	illness 	leaves,
	bereavement
leave, 	leaves 	without 	pay, 	leaves 	for
	exchange
	teaching, 	leaves
for
	JCTA
	business,
	and
	leaves 	for 	jury 	duty; 	voluntary
	and
involuntary 	transfers; 	teacher 	safety; 	class 	size; 	evaluationprocedure
	and
	appeal;
	dues
	deduction; 	maintenance 	of
	membership
in
	JCTA, 	and
	grievance 	procedure.
11

proceed
	to
	a
	decertification
	election
	but
	that
	through
	no
	fault
of
	their
	own
	their
	request 	to
	proceed
	was
	never
	filed.
These
	facts
	led
	the
	regional
	director
	to
	conclude
	that
	the
pending
	unfair
	practice
	charges
	will
	not
	impede
	the
	District's
certificated
	employees
	in
	freely
	voting
	whether
	to
	retain
	or
unseat
	JCTA
	as
	their
	exclusive
	representative.
	Without
reweighing
	these
	factors,
	we
	have
	examined
	them
	only
	to
	see
	if
they 	reasonably 	support 	the
	regional
	director's
	determination;
for
	we
	believe
	that
	an
	abuse
	of
	discretion
	could
	be
	found
	in
this
	case
	if
	the
	regional
	director 	either 	failed
	to
	conduct
	a
satisfactory
	investigation
	or
	if
	he made 	a
	determination
	that
is
	contrary 	to 	the
	facts.1
2
Strictly
	speaking, 	the 	unfair
	practices
	involved
	here 	are
not
	technical-refusals
	to 	bargain, 	for 	in
	Jefferson
	the
question
	is
	not
	whether
	the
	District
	must
	negotiate
	with
	JCTA,
but
	what
	it
	must
	negotiate
	about.
13
12see 	Santa 	Clara 	Unified
	School
	District
	(9/26/79)
	PERB
Decision
	No. 	104
	at
	pages 	12-13.
13under
	the 	National
	Labor
	Relations
	Act
	(29
	u.s.c.
sec.
	150
	et 	seq., 	hereafter
	NLRA), 	{as 	under
	EERA)
	the
	parties
have
	no
	direct
	mechanism	
by	
which
	to 	challenge 	the 	Board's 	unitdetermination 	or
	its 	certification
	of 	the
	results
	of
	a
representation 	election.
	(See,
	e.g.
,
	NLRB
	v.
	Hear
st
Publications
	(19 43) 	3 22 	US 	111 	[88	
LEd
	1170] 	(employer
	refused
to 	bargain 	because
	it
	contended
	that
	newsboys 	were
	not"employees" 	under 	the
	NLRA~
	Mountain
	States
	Telephone 	&
Telegraph
	Co. 	(1962) 	136
	NLRB
	1612
-[50
	LRRM 	1012] 	(employer
refusal 	to 	bargain 	to
	test
	the 	appropriateness 	of 	the
	unit).)Therefore
	a
	refusal 	to 	negotiate 	in 	order 	to 	challenge 	unitcomposition 	or
	certification 	is 	considered
	a
	"technical 	refusalto 	bargain."
12

The
	EERA
	limits
	the
	scope
	of
	negotiations	
to 	specific
enumerated
	items.14	
While
	the
	employer
	at
	its
	option
	may
consult
	with
	employees
	or
	employee
	organizations
	about
	other
matters,
	"they
	may
	not
	be 	a
	subject
	of
	meeting
	and
negotiating."
	Since
	PERE
	does
	not 	render
	advisory
	opinions 	or
provide
	declaratory
	relief,
	Board
	designation 	of 	the 	parameters
of
	the 	duty
	to
	negotiate
	can
	be
	obtained 	only
	by 	a
	party's
refusal
	to
	discuss 	disputed
	items.
14section
	3543.2
	provides:
The
	scope
	of
	representation
	shall
	be
	limited
to 	matters
	relating
	to
	wages,
	hours
	of
employment,
	and
	other
	terms
	and
	conditions
of
	employment. 	"Terms 	and
	conditions 	of
employment'~ 	mean
	heal th
	and
	welfare
	benefits
•••	
I	
leave, 	transfer-and
	reassignment
policies,
	safety
	conditions 	of
	employment,
clas&
size,
	procedures 	to
	be
	used
	for 	the
evaluation 	of
	employees,
	organizational
security
	...
	,
	procedures 	for 	processing
grievances
	...
	, 	and
	the
	layoff
	of
probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	ofthe 	Education
	Code.
	In
	addition,
	the
exclusive 	representative 	of
	certificated
personnel
	has
	the
	right
	to 	consult
	on
	the
definition
	of 	educational
	objectives,
	the
determination 	of 	the 	content 	of 	courses
	and
curriculum,
	and
	the
	selection
	of 	textbooks
to 	the 	extent
	such
	matters 	are 	within 	the
discretion
	of 	the 	public 	school
	employer
under
	the
	law. 	All 	matters 	not
	specifically
enumerated 	are 	reserved 	to 	the 	public 	schoolemployer 	and 	may
	not
	be 	a
	subject 	of
	meetingand
	negotiating, 	provided
	that
	nothing
herein
	may 	be
	construed 	to 	limit
	the
	rightof 	the 	public 	school 	employer
	to 	consultwith
	any 	employees 	or 	employee
	organization
on 	any
	matter 	outside 	the 	scope 	of
representation.
13

The
	hearing
	officer's
	proposed
	decision 	in
	the
underlying
	unfair
	practice
	charge
	acknowledged
	that:
The
	posture
	of
	this
	case
	presents
	some
difficult
	problems.
	The
	parties
	have
treated 	this
	case 	as
	one
	involving
	a
technical 	refusal
	to 	bargain, 	rather
	than
one
	in
	which
	overall
	good
	or
	bad
	faith
	in
negotiations
	is
	in
	issue.
	Although
	the
parties
	discussed
	their
	widely
	divergent
approaches
	to 	the
	scope 	problem
	at
	the
table,
	there
	is
	no
	evidence
	that
	they
seriously
	attempted
	to 	reconcile
	their
differences
	or
	narrow
	the
	issues.
	Thus,
	for
purposes
	of
	this
	hearing 	they 	placed 	the
original 	contract
	proposals 	in
	issue.
	The
parties
	have
	a~parently
	assumed
	that 	there
was 	no 	good
	faith
	obligation
	to 	attempt
	to
narrow
	their
	differences
	on
	scope
	disputes,
and
	that
	the
	issue
	as
	to
	whether
	a
particular
	item
	is
	inside
	or
	outside 	the
scope
	of
	representation
	is
	purely
	one
	of
	law
to
	be
	determined
	primarily
	from
	the
	proposal
on
	its
	face.
	[Propose~
	Decision
	at
	12,emphasis
	added.]	
-
In 	determining
	which
	of 	the 	disputed
	items
	were
	within
	the
scope 	of
	negotiations, 	relying
	on
	cases
	that
	arose
	under
	the
Meyers-Milias-Brown Act
	(Gov. 	Code
	sec.
	3500
	et
	seq.),
	the
hearing
	officer
	adopted
	a
	test
	by 	which
	items
	"primarily
related" 	to
	enumerated
	subjects
	of
	negotiation 	are
	and
	items
"primarily 	related" 	to matter~ 	of 	educational policy 	are 	not
within
	scope. 	(Id.
	at
	8-11.)
Applying
	that
	test,
	the 	hearing
	officer
	found
	that
	"[W]ith
respect 	to
	many
	of 	the 	proposals
	...
	the
	result 	i[s] 	far
	from
clear"
	because 	although
	JCTA's
	initial
	proposals
	were
	related
to
	enumerated 	scope 	items, 	they 	were 	"so 	broad 	as 	to
significantly
	impinge 	on
	matters 	of 	educational 	policy
	which
14

are
	not
	properly 	subject 	to
	negotiation."
	(Id.
	at
	12.)
	Rather
than 	declining
	to
	rule
	on
	such
	items, 	the
	hearing
	officer
	said:
[I]n
	the 	case
	of
	broad
	contract
	proposals
which
	have 	some
	relation
	to
	an
	enumerated
subject
	of
	negotiation,
	it
	will
	be
recommended
	the
	District
	be
	required 	to
negotiate
	the
	proposal,
	but 	only
	to
	the
extent 	that
	it
	relates
	to
	a
	negotiable
subject. 	[Id.]
Accordingly,
	we
	believe
	that
	the
	regional
	director
reasonably
	determined
	that,
	absent
	other
	evidence
	of
	bad
	faith,
when
	the
	parties
	have
	in
	fact
	reached
	an
	agreement
	covering
	the
items
	enumerated
	supra
	at
	footnote	
11	
(including
	some
	of
	the
disputed 	issues 	raised 	in
	the
	unfair
	practice
	charge), 	the
section
	3543.S(c) 	charge 	based
	on
	negotiability 	is
	akin
	to
	a
technical 	refusal 	to 	bargain
	and-does 	not 	without
	other 	factors
require
	a
	decertification 	election
	to
	be
	delayed.
The
	regional
	director
	is
	also 	correct 	that
	passage
	of
	time
can
	dissipate
	the
	influence
	an
	employer's 	unlawful 	conduct
	may
have
	on 	an
	election.
	(See 	Columbia
	Pictures
	Corp.
	(1949)
	81
NLRB
	207 	[23
	LRRM
	1504]
.)
	Since
	neither
	the
	EERA
	nor
	the
	Board
itself
	gives
	priority
	to 	unfair 	practice
	charges
	that 	are
delaying 	the
	disposition
	of
	representation 	cases,15	
it
	seems
15compare
	NLRA
	sections 	l0(k)
	and 	(1) 	(29 	o.s.c.
secs.
	160(k) 	and
	160(1))
	which
	give
	priority
	to 	certain
	types
of 	unfair 	labor 	practice 	cases.
	See
	also
	NLRB
	CasehandlingManual,
	Part 	II
	(1975),
	section 	11740.2, 	giving
	priority 	to
unfair 	labor 	practice 	charges 	that 	are 	delaying 	representation
matters.
15

especially
	appropriate 	for
	PERE
	regional
	directors
	to 	consider
the
	effect
	the 	passage 	of
	time 	has
	on
	the
	ability
	of
	employees
to 	freely
	choose
	their
	own
	representative.
In
	this
	case,
	the
	original
	blocking 	charge
	was 	imposed 	by
the 	executive
	director
	and
	sustained
	by
	the
	Board
	itselfl6
before
	the
	parties
	reached
	an
	agreement
	and
	before 	the 	hearing
officer's
	proposed
	decision
	issued
	characterizing
	the
	unfair
practice
	charges 	as
	technical
	refusals
	to 	bargain 	in 	order 	to
gain
	a
	PERB
	determination
	on
	scope. 	Since 	the
	original
	block,
the
	parties
	reached 	and, 	according
	to
	the
	regional
	director,
"apparently 	administered
	successfully"
	an 	agreement. 	That
agreement
	in
	fact
	covered
	disputed 	as 	well 	as 	undisputed
items.
	Moreover,
	the 	hearing
	of£icer
	held
	that
	the
	parties
	had
treated
	the
	District's
	conduct 	as
	a
	technical
	(as 	opposed
	to
	a
bad
	faith) 	refusal 	to 	negotiate. 	Finally,
	the 	hearing
	officer
pointed 	out
	that
	many
	of 	the 	disputed 	proposals
	were
	so 	broad
as
	to
	have 	no
	clear
	answer. 	These
	facts
	were 	unknown 	when
	the
executive
	director 	investigated 	this
	case 	in
	November
	1977.
Since 	the 	passage 	of
	time 	has
	resulted 	in
	a 	change
	in 	the
parties'
	relationship,
	as 	well 	as 	yielding
	an
	interim
	PERB
finding
	on
	the 	nature 	of 	the 	underlying 	unfair 	practice
charges,
	it
	was
	not 	unreasonable 	for 	the 	regional 	director 	to
16Jefferson
	School
	District,
	supra,
	EERB
	Order 	No. 	Ad-22.
16

conclude
	that
	the
	employees
	will
	be
	able
	to
	vote
	their
	own
minds
	uninfluenced
	by
	the
	employer's
	alleged
	unlawful
	conduct.
Finally,
	the 	regional
	director's
	investigation
	revealed
that
	an
	overwhelming
	percentage 	of
	JCTA
	members 	had
	wanted
	to
request
	the
	regional
	director
	to
	proceed
	with 	the
	election,
	but
that
	the
	last
	JCTA
	officer
	had
	failed
	to
	file
	the
	request
before 	leaving
	office.
	PERB's
	policy
	on
	requests 	to
	proceed
	to
decertification
	elections
	in 	the 	face 	of
	pending
	unfair
practice
	charges
	does
	not
	distinguish 	refusal
	to 	negotiate
allegations
	from
	other 	unfair
	practice
	charges.
17	
There
	is
no
	reason
	to 	believe
	that
	the
	executive
	director
	would
	have
failed
	to
	approve
	JCTA's
	request 	to
	proceed
	had
	it
	been
	filed.
Hence
	there
	is
	no
	reason 	for
	this
	,_
	Board
	to
	hold
	that
	the
17compare
	NLRB
Casehandling
	Manual,
	Part
	II
	(1975)
sections
	11730.4(b)
	and
	11730.l0(g) 	(in
	which
	the
	NLRB
	states
its
	policy
	not 	to
	honor
	requests 	to
	proceed
	in
	8 (a) (5)
(refusalto
	bargain)
	situations
	except
	upon
	specific 	authorization
	by
the
	Board
	through 	the
	Office 	of 	the 	Executive
	Secretary) 	with
Board
	Resolution
	No.
	14, 	supra,
	which
	provides 	in
	pertinent
part:
(2) 	The
	Regional
	Director
	may
	proceed 	with
the
	election,
	upon
	approval 	of 	the 	Executive
Director, 	in 	those 	cases
	where:
(a) 	The
	person
	filing
	the 	unfair
practice
	charge 	has
	requested 	the 	agency
to
	proceed 	with 	the
	election
	and 	has
waived
	the
	right 	to
	file
	objections 	tothe 	election
	based 	on
	conduct 	alleged 	in
the 	unfair 	practice 	charge; 	or
17

regional
	director
	abused
	his
	discretion
	in 	considering
	all
	the
relevant 	facts
	in
	this
	case, 	including
	the
	fact 	that
	the
	JCTA
members 	made 	an
	abortive
	attempt 	to 	request
	PERB
	to
	conduct
	a
decertification
	election
	in
	this
	matter 	notwithstanding 	the
long-pending
	unfair
	practice
	charges 	they
	had
	filed
	three 	years
before.
Above
	all,
	the
	purpose
	of 	the
	EERA
	is
	to
	enable
	public
school
	employees
	to	
be	
represented 	in
	their
	employment
relationship
	with
	their
	employer.
	To
	insure
	employees
	free
choice 	in 	the
	selection
	or
	decertification
	of
	an
	exclusive
representative,
	this
	Board
	may
	delay
	a
	representation
	election
when
	there
	is
	a
	substantial 	risk 	that
	its
	outcome
	will
	be
affected
	by
	conduct
	that 	is
	ali~ged
	to
	be 	an
	unfair
	practice
when
	that
	charge
	is
	still
	pending
	before 	the
	Board.
	After
	an
investigation,
	the 	regional
	director
	thoughtfully 	considered
all
	of 	the
	competing
	factors
	in
	this
	case 	in 	context
	and
determined
	that
	the
	District's
	alleged
	unlawful 	conduct 	does
not
	pose
	a
	significant 	risk
	of
	tainting
	a
	fair
	and
	free
election.
	The
	regional
	director's
	determination
	is
	reasonably
based
	on
	the 	elements
	he
	cites,
	and
	is
	accordingly 	affirmed
	by
the
	Board
	itself.
ORDER
Based 	on
	the 	foregoing 	Decision
	and
	the
	entire
	record 	in
this
	case, 	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that
18

the
	determination 	of
	the
	San
	Francisco 	regional
	director 	to
proceed
	to
	a
	decertification
	election
	in
	this
	matter
	is
affirmed.
By:~
Barbara
	D.
	Moore, 	Member- 	• .
,/Raymj>nd
	J.
	ji6nz,i1es
,t
Member
Harry
	Gluck,
	Chairperson,
	dissenting:
I
In
	establishing
	its
	"abuse
	of 	discretion"
	standard 	of
review
	of
	a
	regional
	director's
	determination,
	the
	majority
	has
exceeded
	its
	statutory 	authority'eo
	delegate
	and
	abdicated
	its
statutory
	obligations.
In
	justifying
	its
	action,
	the 	majority
	has
	placed 	mistaken
reliance
	on Rule
	102.67(c) 	of 	the 	National
	Labor
	Relations
Board
	(majority 	opinion
	pp 	8-9) 	and
	section
	3541.3(k)
	of
	the
EERA,
	as
	well 	as
	on
	the 	Santa
	Claral	
and 	Oakdale2	
decisions
previously
	issued
	by
	PERB.
NLRB
	Rule 	102.67
(c), 	establishing
	a
	standard 	of
administrative
	review,
	is
	based 	on
	section
	3(b) 	of 	the 	National
Labor
	Relations 	Act,3 	as 	amended	
by 	the
	Labor-Management
lPERB
	Decision
	No. 	104
	(9/26/79).
2PERB
	Decision 	No. 	Ad-46
	(9/13/78).
329 	u.s.c., 	section 	151,
	et
	seq.
19

Reporting
	ana
	Disclosure
	Act
	(1959).
	Section
	3(b)
	states,
	in
pertinent 	part, 	that
	the
	NLRB
	is
	authorized 	to
	delegate 	to
	its
regional
	director
	its
	powers 	under
	section
	9:
to
	determine 	the
	unit
	appropriate
	for 	the
purpose
	of
	collective
	bargaining, 	to
investigate
	and
	provide 	for
	hearings,
	and
determine
	whether
	a
	question
	of
representation
	exists,
	and
	to
	direct
	an
election
	or
	take
	a
	secret 	ballot
	under
subsection
	(c)
	or
	(e)
	of
	section
	9,
	and
certify
	the
	repults 	thereof,
	except
	that
upon
	the
	filing
	of
	a
	request, 	therefore,
with
	the
	Board 	by 	any
	interested
	person, 	the
Board
	may
	review
	any
	action
	of
	a
	regional
director
	delegated 	to
	him
	under
	this
paragraph
	...
	(Emphasis
	added).
The
	point
	is 	that
	the
	Congress
	specifically
	authorized 	the
delegation
	of
	section
	9 	powers
	without
	limitation
	and
	further,
specifically
	left
	review
	of 	the
	regional
	directors'
determinations ·to
	the
	discretion
	of 	the 	Board.
In
	its
	decision 	here,
	the
	majority
	refers
	to
	section
3"541.3 {k)
	of 	the
	EERA	
as 	though 	comparable
	legislative
authority
	has 	been
	granted 	to 	the
	PERB.
	But,
	section
	3541.3(k)
severely 	limits
	the
	delegation	
by 	the
	Board
	of
	its
	powers.
That
	EERA
	section 	authorizes 	the
	Board:
To
	delegate
	its
	powers
	to
	any 	member
	of 	the
Board
	or
	to
	any
	person 	appointed 	by	
the
Board
	for 	the 	performance 	of
	its
	functions,except
	that
	no 	fewer 	than
	two 	Board 	members
may
	participate
	in 	the 	determination 	of
	any
ruling
	or
	decision
	on
	the 	merits 	of
	any
dispute 	coming
	before
	it
	...
	(Emphasis
added.)
20

Granted, 	the
	Board
	can
	establish
	intermediate 	steps
	in
	the
process
	of 	resolving 	issues 	in 	dispute,
	as
	the
	Board
	has
	done
by	
creating
	a
	division
	of
	hearing
	officers
	to
	conduct 	formal
hearings
	into 	allegations
	of
	unfair
	practices
	and
	the
determination
	of 	bargaining
	units.
	But,
	hearing
	officer's
decisions
	are 	only
	"proposed
	decisions"
	and 	become
	final
	only
if
	not 	appealed
	and
	then 	only 	as
	to
	the
	parties
	to 	the
	case.
They
	are 	nonprecedential
	and 	need
	not
	be
	followed
	by
	other
hearing
	officers
	entertaining 	similar 	disputes.
	When
	proposed
decisions
	are 	appealed, 	the
	Board
	itself
	reviews
	the
	record 	in
full
	and
	decides 	the
	issues
	based
	on
	the
	preponderance
	of
evidence
	produced, 	applying
	the 	independent
	judgment
	standard
of
	review.
	With
	the
	same
	limitations
	the
	Board
	may
	delegate 	to
a
	regional 	director
	the
	resolution
	of
	a
	dispute.
	But	
by
establishing
	ari
	"abuse
	of 	discretion"
	test
	here,
	the
	majority
rejects
	appeals
	based
	on
	the
	merits 	of 	the
	dispute,
	upholding
	a
regional
	director's
	decision
	"whether 	or 	not
	we
	would
	have
	made
the
	same
	determination 	ourselves."
	(Ante, 	p.
	10.)
The
	majority, 	in
	a
	footnote
	to 	its
	decision
	(page
	8,
footnote
	10)
	in
	which
	it
	cites
	the
	NLRB
	rule, 	also
	states 	that
the 	California 	appellate 	courts 	will
	not
	disturb
	trial
	court
decisions 	that 	are 	reasonably 	based
	on
	the
	facts
	of 	the
	case.
First,
	there
	is
	no
	valid
	comparison 	between
	the
truth-determination 	process 	of
	a
	court
	trial
	and
	the
investigatory process 	involved 	here. 	Second,
	PERB
	is
	an
21

administrative
	agency
	and
	not
	a
	trial
	court.
	The
	rules
applicable
	to
	administrative
	agencies
	and
	boards
	are
	quite
another
	matter.
	For 	example,
	it
	was
	held
	that
	a
	board
	cannot
legally
	confer
	on
	its
	employees
	the
	authority 	that
	under
	the
law
	may
	be
	exercised
	only
	by
	the
	board
	itself.
	Schechter
	v.
County
	of
	Los
	Angeles
	(1968) 	258
	C.A.2d 	391.
	The
	United
	States
Supreme
Court, 	in
	upholding 	the
	National
	Labor
	Relations
	Board
delegation
	to
	its
	regional
	directors,
	did
	so
	precisely
	on
	the
basis
	of 	the
	board's
	statutory 	authority
	to
	do
	so.
	Magnesium
Casting
	Co.
	v.
	rn
	(1971) 	401
	U.S.
	137 	[76
	LRRM
	2947].
	See
also
	Wallace
	Shops
	Inc. 	(1961)
	133"
	NLRB
	36
	(48
	LRRM
	1564].
But,
	an
	attempt	
by	
the
	National
	Labor
	Relations
	Board
	to
delegate
	to
	one
	board
	member 	and 	two
	staff
	employes
	was
invalidated 	in
	KFC
	National
	Manaqement
	Corp. 	v.
	NLRB
	(2d
	Cir.
1974)
	497 	F
••
2a
	298 	[86
	LR.RM
	2271]
	as
	a
	violation
	of
	the
specific 	statutory
	requirements
	and
	the 	fundamental
	ccncepts 	of
administrative
	due
	process.
The
	majority
	here 	implies
	that
	because 	the
	staying 	of
	an
election 	is
	"discretionary"
	with 	the
	Board
	it
	may
	delegate
	such
discretion
	to 	the
	regional 	diector
	and
	then
	limit
	its
	own
review 	of 	his 	determinations 	to 	"the
	abuse
	of 	discretion"
test.
	But,
	authority
	to 	exercise
	its
	discretion 	is
	granted 	to
a
	statutory
	board 	as
	a
	purely 	"personal"
	power 	which may
	not
	be
further 	delegated 	in 	the 	absence 	of 	express
	statutory
authorization. 	Schechter 	v. 	county 	of
	Los
	Angeles, 	supra,
at
	396, 	3970 	Also 	see 	Taylor 	v. 	Crane 	(1979) 	24
	Cal.3d 	442;
22

California
	School
	Employees
	Association
	v.
	Personnel
	Commission
(1970)
	3·
Cal.3d
	139;
	56
	Ops._
	Atty.
	Gen. 	366
	(1973).
	Compare
Candlestick
	Prop.
	Inc.
	v.
	San
	Francisco
	Bay C & D Commission
(1970) 	11 Cal.App.3d
	569.4
To
	the
	extent
	that 	section
	3541.3
	permits
	delegation 	to
	a
staff
	member,
	it
	limits 	that
	delegation
	to
	administrative
	or
ministerial
	acts
	since
	it
	expressly 	requires
	that
	the
	Board
majority
	participate
	in 	resolving 	issues 	in
	dispute.5	
No
matter
	who
	hears
	a
	dispute,
	the
	power
	of
	decision
	lies
	only 	in
the
	board 	or
	commission
	in
	whom
	the
	law
	vests
	the
	power
	of
decision.
	(Cal.
	Administrative
	Agency
	Practice,
	(Cont.
	Ed.
Bar
,
	19
7 O} 	p •
	14
5 • )
At
	stake
	here
	is
	the
	right
	of 	the
	employees
	in
	the
	unit
	to
'---
select
	an
	exclusive 	representative 	free
	of 	unlawful
interference
	by
	their
	employer,
	and
	to
	be
	represented 	in
collective
	negotiations
	by
	that 	organization.
	These
	rights,
vested 	in
	the
	employees 	by
	section
	3540,
	are
	fundamental.
	The
determination
	that
	the
	employees' 	choice
	can
	or 	cannot
	be
4The
	majority 	also 	refers
	to
	PERB
	Resolution
	14
(footnote 	9,
	page
	6).
	It
	cites 	this
	as
	a
	"policy 	expression"
since
	Board
	resolutions
	enjoy
	neither
	the
	status
	of 	rules 	or
adjudications. 	Clearly, 	the
	Board
	cannot
	by
	"policy" 	delegate
more
	than
	section
	3541.3(k)
	permits.
Ssection 	3541(e), 	as 	amended 	by	
section
	7
	of 	the
	State
Employer-Employee
	Relations
	Act 	(Gov. 	Code
	sec.
	3512,
	et 	seq.)provides 	for 	the
	employment
	of
	an
	executive 	director
	and 	such
persons
	deemed
	"necessary 	for 	the 	performance 	of 	the 	Board's
administrative 	functions." 
2-3

exercised 	in 	the 	manner 	required 	by 	the 	Act 	cannot 	be
considered 	simply 	an 	"administrative" 	or 	ministerial 	act 	to 	be
upheld 	even 	if 	the 	Board 	would 	act 	otherwise. 	Furthermore, 	the
existence of 	a 	substantial 	"legal" 	dispute 	is 	demonstrated 	by
the 	presence 	of 	AFT, 	the 	competing 	organization. 	It 	has 	filed
a 	facially 	valid 	decertification 	petition 	accompanied 	by 	the
required 	proof 	of 	support. 	A question 	of 	representation 	is
raised. 	Section 	3544.7(a) 	requires 	the 	Board 	to 	order 	an
election 	if, 	pursuant 	to 	the 	evidence 	adduced, 	it 	determines
that 	a 	question 	of 	representation 	does 	exist. 	The 	final
determination 	of 	that 	issue 	is 	reserved 	to 	the 	Board 	itself,
must 	be 	on 	the 	merits, 	and 	may 	not 	be 	delegated.
The 	majority's 	further 	re~ia~~e 	on 	Santa Clara Unified
School 	District, 	supra, 	is 	unjustified. 	In 	Santa Clara, 	the
Board 	acknowledged 	the 	error 	of 	its 	then 	existing 	standard 	of
review6 	and 	stated:
Therefore, 	while 	the 	Board 	will 	afford
deference 	to 	the 	hearing 	officer's 	findings
of 	fact 	which 	incorporate 	credibility
determinations, the 	Board 	is 	required 	to
consider 	the 	entire 	record, 	including 	the
totality of 	testimony 	offered, 	and 	is 	free
to 	draw 	its 	own 	and 	perhaps 	contrary
inferences from 	the 	evidence 	presented. 	(Id.
at 	12. 	Emphasis 	added.)
6The 	Board's 	standard 	of 	review 	prior 	to 	Santa Clara 	was
to 	uphold 	a 	hearing 	officer's 	determination 	unless 	it 	was
"clearly 	erroneous." 	Ironically, 	this 	Board 	gave 	no 	deference
to 	the 	regional 	director's 	original 	decision 	in 	this 	case
against 	blocking 	the 	election. 	That 	decision 	was 	reversed 	by
the 	executive 	director 	and 	the 	Board 	affirmed 	the 	reversal 	on
appeal. 	See 	Jefferson 	School 	District 	(12/30/77) 	PERB 	Decision
No. 	Ad-22.
24

Compare
	this
	statement
	to
	the
	majority 	statement
here:
The
	only
	question 	presented
	by
	this
	appeal
is
	when 	and 	on 	what
	basis
	the
	Board
	will
overturn
	a
	determination
	•.•
	and
substitute
	its
	own
	judgment
	...
	we
	believe
that
	the
	appropriate 	inquiry
	upon
	appeal
	is
whether 	(the
	regional
	director's)
	discretion
has
	been
	abused.
	(Ante, 	page
	8.)
Thus,
	the 	majority
	cites
	as 	precedent 	for
	its
	present
position
	a
	case
	which
	doesn't
	hold
	at
	all
	what
	it
	is
represented 	to
	hold.
	(Interestingly,
	one 	member
	of 	the
majority 	in
	this
	case
	dissented 	in
	Santa
	Clara
	urging
	a
"substantial
	evidence"
	standard 	of 	review,
	which,
	if
	not
	as
stringent
	as
	an
	independent
	judgment
	standard,
	is
	still
substantially
	more
	comprehensive
	than
	the
	"abuse
	of
	discretion''
standard 	applied 	here).
The
	relevance 	of 	Oakdale,
	supra, 	as
	relied
	on 	by	
the
majority,
	is 	difficult
	to 	grasp.
	In
	that
	case, 	the
	question
was
	whether
	the 	regional
	director
	acted 	unreasonably
	in
	denying
a
	request 	for
	appointment
	of
	a
	post-factfinding
	mediator.
	The
Board,
	in
	upholding 	the
	regional
	director's
	actions,
	found
	that
the
	parties
	enjoyed
	no
	right 	to 	post-factfinding
	mediation.
But,
	even
	then, 	the
	Board
	disapproved
	certain 	parts
	of 	the
regional 	director
1 s
	findings
	and
	conclusions
	after
	examining
the 	entire
	record 	before
	it.
	Nowhere
	in
Oakdale 	was 	an
	abuse
of 	discretion 	test 	set 	forth.
	To
	the 	contrary, 	the 	Board's
analysis 	in 	that
	case 	requires 	the 	conclusion 	that
	its
	decision
25

looked
	to
	the 	weight
	of 	the
	evidence
	and
	the
	quality
	of
	the
regional
	director's
	rationale.
In
	summary,
	then,
	in
	failing
	upon
	appeal
	to
	decide
	the
issue
	on
	the
	merits,
	based
	on
	the
	facts
	produced
	in
	the
	course
of
	the
	regional
	director's
	investigation,
	the
	Board
	has
	failed
to
	fulfill 	its
	statutory
	obligations
	and
	has
	denied
	to
	the
Association 	administrative
	due
	process.
Aside
	from
	the 	foregoing,
	the
	wisdom
	of 	the
	majority's
decision
	is
	questionable 	in
	light
	of
	Board
	rule
	32738.7
There
	is
	nothing
	to 	prevent 	the 	Association,
	assuming
	it
	loses
the
	forthcoming
	election,
	from
	filing
	objections
	to 	the
results.
	A
full
	evidentiary
	hearing
	will
	be
	required, 	with
appeal
	rights
	to
	the
	Board
	itself.
	If
	the
	Board
	follows
	its
existing 	practice,
	it
	will
	apply
	an
	independent
	judgment
7s
	Cal.Admin.
	Code
	section
	32738
	provides:
(a)
	Within
	10
	days
	following 	the
	service 	ofthe
	tally
	of
	ballots,
	any
	party 	to
	the
election
may
	file
	with 	the
	regional
	officeobjections 	to 	the 	conduct 	of 	the
	election.
Any
	objections
	must 	be
	filed
	within 	the
10	
day 	time
	period
	whether 	or 	not
	a
	runoff
election 	is
	necessary 	or 	challenged
	ballots
are
	sufficient
	in
	number
	to
	affect
	the
results
	of 	the
	election.
(b) 	The
	objecting 	party 	shall
	concurrently
serve
	a 	copy
	of
	its
	objections
	on 	each
	partyto 	the
	election.
	A
statement 	of 	service
shall
	accompany
	the 	objections 	filed
	with
the 	regional 	office.
(c}
	Objections
	shall
	be
	entertained
	by
	theBoard 	only 	on 	the 	following 	grounds~
26

standard
	of
	review.
	The
	determination
	here 	cannot
	serve 	as
binding 	precedent.8
II
By
	any
	test,
	including 	the
	majority's,
	the 	regional
director's
	decision
	to
	conduct 	the
	decertification 	election
should
	be
	reversed.
The 	Board
	directed
	the
	regional
	director 	"to
	determine
whether
	a
	danger 	remains
	that
	the
	District's
	alleged
	unlawful
conduct
	will
	so
	affect
	the
	election
	process
	as
	to
	prevent 	the
employees
	from
	freely 	selecting
	their
	exclusive
representative." 	Jefferson
	School
	District
	(6/29/79)
	PERB
Decision
	No.
	Ad-66,
	at
	7 	(emphas~~
	added).
	The
	blocking
	order
was
	to
	remain
	in
	effect
	if
	the 	"employees'
	dissatisfaction
	with
their
	representative
	is
	in
	all
	likelihood
	attributable
	to 	the
employer's 	unfair 	practices 	rather
	than
	to
	the
	exclusive
(1) 	The
	conduct 	complained 	of
	is
tantamount 	to
	an
	unfair 	practice
	as
defined 	in
	Government 	Code
	sections
3543.5 	or
	3543.6
	of 	the
	EERA,
	3519
	or
3519.5
	of 	the
	SEERA,
	or
	3571
	or 	3571.1
of 	the
	HEERA,
	or
(2)
	Serious
	irregularity
	in 	theconduct 	of 	the
	election.
Brn 	view
	of 	the 	foregoing,
	this 	dissent 	will
	not 	consider
the 	propriety 	of 	establishing
	a
	standard 	of 	review 	through 	the
Board's 	adjudicatory 	process 	rather 	than 	through
	its
rule-making 	powers.
27

representative's 	failure
	to
	respond
	to
	or
	serve 	the
	needs
	of
the
	employees
	it
	represents. 	Id.
	at
	5-6 	(emphasis
	added).
Clearly,
	then,
	the
	thrust
	of 	the 	Board's
	direction
	was
	for
	the
regional 	director
	to
	conduct
	an
	investigation
	to
	determine
	if
circumstances
	had
	changed
	since
	his
	original
	blocking
	order
	was
issued.
A
review
	of 	the
	regional
	director's
	findings
	fails
	to
uncover
	one
	iota
	of
	evidence
	indicating 	that
	the
	danger
	no
longer
	remains
	that
	the
	District's
	alleged
	misconduct
	will
adversely
	affect
	the
	election
	process,
	or
	that
	dissatisfaction
with 	the
	exclusive
	representative's
	performance
	is
	not
attributable
	to
	the 	employer's 	conduct. 	In
	short,
	the
	regional
director 	failed
	to
	produce
	any
	evidence
	that
	the 	circumstances
had
	changed.
	rndeed,
	his 	investigation
	only 	demonstrates
	that
the
	Board 	was
	initially
	correct 	in
	blocking 	the
	decertification
election.
	(See
	Jefferson
	Ad-22, 	supra.)
1.
	The
	em2loyer
1 s
	refusal
	to 	bargain
	was 	a
	technical
violation:
The
	regional 	director
	reached
	this
	"conclusion" 	because
	it
was
	not
	alleged 	that
	the
	District
	intended 	to
	undermine
	the
Association's 	support.
First, 	if
	it
	was 	a
	technical 	violation 	at
	the 	time
	the
regional 	director 	investigated,
	it
	was 	a
	technical 	violation
when
	the 	Board 	blocked 	the
	initial 	decertification 	election.
No
	change
	is
	demonstrated.
28

Second,
	while 	the
	majority
	claims
	it
	is
	not
	evaluating
	the
agreement
	actually
	reached
	by
	the
	parties
	and
	has
	not
	yet
considered
	the 	appeal
	frbm
	the
	unfair
	practice
	charge
	filed
	by
the 	Association,
	the
	majority 	supports 	the
	regional
	director's
conclusion.
	But,
	assuming
	the
	violation
	was 	a
	technical
	one,
what
	is
	the 	relevance 	of
	this
	characterization?
	The
	only
question
	for 	the
	regional
	director
	and
	the
	Board
	to
	answer
	is
simply:
	did
	the
	District's
	allegedly
	unlawful
	refusal
	to
bargain
	impair
	the
	employees'
	opportunity 	to
	exercise
	their
statutory 	right
	of
	free
	choice?
	The 	answer
	turns
	on 	a
	factual
determination
	that
	the
	District's
	refusal, 	irrespective
	of
reason,
	sufficiently
	derogated 	the
	exclusive
	representation
	in
the
	eyes
	of 	the
	employees
	as
	to
	cast
	doubt
	as 	to
	the
	validity
of
	any
	represerrtation
	election 	that
	was
	to
	take
	place.
Anything
	short
	of
	this 	test
	makes
	it
	virtually
	impossible
	to
justify
	blocking
	an
	election
	since
	employers
	are
	unlikely
	ever
to
	admit
	that 	their 	refusal
	to 	bargain
	is
	based
	on
	anything
other
	than
	a
	heartfelt
	conviction
	that
	the
	subject
	matter
	is
outside
	scope.
Furthermore,
	by
	its
	action 	here, 	the 	majority
	is
retroactively
	modifying
	its
	order 	in 	Jefferson
	Ad-66.
	To
	the
simple
	direction
	given
	there,
	it
	now
	adds 	the 	requirement
	that
the 	regional 	director 	also 	find 	unlawful
	intent.
	It
	also
appears 	that 	the 	majority
	now
	imposes 	on
	the 	emplovees
	the
29

obligation
	to 	determine 	the 	employer's
	motives
	before 	they
develop
	an
	opinion
	as
	to
	the
	exclusive
	representative's
performance.
	This
	is
	so 	because
	if
	they
	withdraw
	support
	from
the
	representative,
	but 	the
	employer
	has
	not
	acted
	with
anti-union
	animus,
	the
	employees
	cannot
	be
	protected
	from
	their
own
	"neglect"
	and 	must
	cast
	their 	ballots
	despite
	the
	external
influence
	on
	their 	attitudes.
The
	majority
	does
	not
	rest 	at 	this
	point.
	It
	goes
	on
	to
decide
	that
	a
	"technical 	violation"
	based
	on 	a 	good
	faith
	doubt
as 	to
	scope 	does
	not
	require
	that
	a
	decertification 	election
	be
delayed.
	(Ante,
	p.15.)
	No
	explanation
	or
	authority
	is
	given
for
	this
	statement
	which,
	apparently,
	is
	offered
	as
	a 	new
	and
general 	rule 	of
	law.
	What 	makes
	the
	majority
	position
	more
perplexing
	is
	its
	past 	history 	oi-finding
	3543.S(a)
	and
3543.S(b)
	violations
	when
	refusal
	to 	bargain
	violations 	are
proven 	without
	any
	claim 	or
	showing
	of
	evil
	motive
	by
	the
employer.
	See 	San
	Francisco
	Community
	College
	District
(10/12/79)
	PERB
	Decision
	No. 	105; 	San Mateo 	Community
	College
District
	(6/8/79)
	PERB
	Decision
	No.
	94.
2.
	The
	Association 	successfully 	administered 	the
contract
	...
	the
	employees 	voted
	to
	proceed 	with 	the
	election:
These
	"facts"
	are 	considered 	together 	to
	emphasize
	the
inconsistency 	of 	the 	regional
	director's
	conclusions.
What
	did 	the 	successful 	administration 	consist
	of?
	No
facts
	are 	presented.
	The
	contract 	ran
	its
	course 	according 	to
30

its 	terms. 	But, 	it 	was 	a 	contract 	limited 	by 	the 	District's
refusal 	to 	negotiate 	many 	items. 	(Ante, 	p.3, 	n.3.) 	It 	is
impossible 	to 	transmute 	this 	fact 	into 	the 	conclusion 	that
there 	was 	satisfaction 	among 	the 	employees 	which 	nullified 	the
District's 	original 	adverse 	impact 	on 	the 	employees' 	attitude
toward 	the 	Association.
It 	is 	also 	impossible 	to 	equate 	"successful 	administration"
with 	the 	finding 	that 	the 	Association 	is 	virtually 	defunct.
More 	importantly, 	if 	one 	accepts 	this 11 finding" 	of 	successful
administration 	then 	one 	must 	conclude 	that 	the 	employees'
attitude 	is 	not 	the 	result 	of 	the 	11 exclusive 	representative's
failure 	to 	respond 	to 	or 	serve 	the 	needs 	of 	the 	employees 	it
represents," 	which 	the 	Board 	esta.blished 	as 	the 	test 	of 	whether
the 	blocking 	order 	be 	continued. 	Jefferson 	Ad-66, 	supra.
The 	employees' 	desire 	to 	proceed 	with 	the 	election 	is 	not
only 	irrelevant, 	but 	to 	consider 	it 	separate 	and 	apart 	from 	the
wishes 	of 	the 	exclusive 	representative 	makes 	a 	mockery 	of 	the
blocking 	process. 	What 	the 	Board 	seeks 	to 	determine 	is 	whether
the 	District's 	conduct 	affected 	the 	employees' 	attitude. 	The
finding 	here 	means 	that 	when 	an 	employer 	has 	successfully
influenced 	the 	employees 	against 	their 	representative, 	the
Board 	will 	sanction 	that 	unlawful 	conduct 	by 	submitting 	to 	the
employees' 	improperly 	influenced 	wishes. 	Thus, 	the 	Board 	will
order 	the 	election 	its 	blocking 	charge 	policy 	was 	meant 	to
prevent!
31

Furthermore, 	the
	majority
	again
	misuses
	NLRB
	precedent.
For 	the 	reason
	stated
	above
	the
	federal
	board
	only
	authorizes
the
	charging
	party
	(in
	this
	case 	the
	employee
	organization) 	to
request
	that
	the
	election
	proceed
	before 	the 	underlying
	unfair
practice
	charge
	is
	resolved.
	Even 	when 	a
	request
	is
	made,
	the
NLRB
	does
	not
	accede
	automatically.
	To
	the
	contrary,
	in
refusal
	to 	bargain
	cases,
	it
	will	
be	
decline 	to
	do
	so
	where
	the
impediment
	to
	employee
	free
	choice
	has
	not
	been 	removed.9
3.
	Two
	xears
	have
	passed
	since 	the
	violation
	occurred:
The
	regional
	director
1 s 	and
	the
	majority's
	view
	that
	the
passage 	of 	time
	may
	affect
	the 	employees'
	ability
	to
	exercise
their
	voting
	rights 	freely
	warrants 	support
	if
	it
	is
	understood
that
	it
	is
	not 	the
	mere
	passage 	of
	time
	alone, 	but 	the
	change
of	
circumstances 	during
	that
	time
	which
	may 	be
	significant.
The
	regional
	director	
has	
provided 	the
	Board
	with	
no
information
	that
	such 	has
	occurred,
	nor 	any
	information
	to
offset
	the
	more
	likely
	conclusion
	that
	the 	delay 	in 	resolving
the 	unfair 	practice
	charge 	has 	only 	served 	to 	continue
	and
exacerbate 	the 	employees'
	discontentf 	created
	by
	the
	District
1 s
bargaining 	posture,
	but
	which
	they
	now
	direct 	against
	their
exclusive 	representative.
9NLRB
	Casehandling Manual,
	Part 	II
	(1975)
	Section
11730.4(b} 	and
	11730.lO(g).
32

The
	majority
	does
	indicate
	that
	in
	the
	interim,
	the
	unfair
practice
	charge
	has 	been
	resolved 	in
	the
	Association's 	favor,
implying
	that
	the
	employees'
	desire
	for
	a
	change
	is,
	therefore,
not
	related
	to 	the 	employer's
	wrongdoing.
	This
	overlooks
	the
fact
	that
	the
	District
	has
	excepted 	to
	the
	hearing
	officer's
findings
	and
conclusions,
	thus
	effectively
	vacating
	that
decision
	and
	precluding 	the 	imposition 	of 	the 	hearing
	officer's
proposed
	remedy.
	There
	is
	no
	point 	to 	staying
	a
decertification
	election
	pending
	the
	resolution
	of
	an
	unfair
practice
	charge
	if
	the
	employees
	are 	not,
	at
	the 	very
	least,
given
	a
	full
	opportunity 	to
	become
	aware, 	through
	a
	final
order,
	of
	the 	underlying 	causes 	of
~-
the
	exclusive
representative's 	failures.
	Only
	then
	can
	they
	exercise
	their
-
voting
	rights 	freely.
	That
	is
	obviously 	the 	purpose
	of
delaying
	an
	election 	until
	the
	unfair 	practice
	has 	been
resolved 	in
	a
	final
	and
	binding
	way
	with
	an
	appropriate
remedy. 	Nothing
	like 	that
	has
	occurred 	here.
The
	majority
	has
	also 	indicated 	that 	"successful
administration" 	of
	the
	collective
	agreement
	was 	a 	change
	in
circumstances
	over 	time.
	However,
	as 	discussed
	above,
	the
so-called 	"successful 	administration" 	of	
a	
contract 	limited
	by
the 	employer's
	refusal
	to 	negotiate 	hardly
	justifies
	being
elevated 	to 	the
	status 	of
	a 	change
	in 	circumstances 	warranting
removal 	of 	the 	blocking 	order.
33

4.
	Continuing 	the 	block
	would
	frustrate
	the
	fundamental
right	
of	
employees
	to
	be
	represented	
by	
an
	organization 	of
their
	choice:
	That
	this-right
	is
	fundamental 	has
	already
	been
emphasized
	in
	this 	dissent.
	But
	based
	on
	the
	investigation
conducted,
	it
	is
	removal
	of
	the 	block
	which
	will 	defeat
	that
right.
III
The
	majority's
	other
	actions:
	The
	contention
	that
	the
Association 	did
	not
	quarrel
	with 	the
	regional
	director's
	facts,
but
	only
	his
	conclusions, 	bears
	scrutiny.
	The
	Association's
brief 	states
	it
	does
	not 	take
	issue
	with 	the
	conclusions
reached
	by 	him
	that 	effective
	negotiations--indeed
	all
negotiations--have
	ceased;
	that
	the
	employees
	are 	demoralized
and
	that
	the
	cqllective
	bargaining
	relationship
	initially
established 	is
	now
	in
	disarray.
	(CTA
	Brief,
	pp.
	2-3.)
	The
difficulty
	facing 	the 	majority,
	with
	which	
I	
sympathize,
	is
that
	the
	regional
	director's
	"facts"
	are
	virtually
indistinguishable
	from
	conclusions 	or 	opinions 	unsupported
	by
facts.
As
	noted 	above,
	the 	majority 	claims 	not
	to
	have
	evaluated
the 	collective
	bargaining
	agreement 	executed
	by
	the
	parties.
CTA
	points 	out 	(Brief,
	p.
	6)
	that 	"the 	contents 	of
	that
contract
	are 	not 	disclosed 	[in 	the 	regional
	director's
findings]
	and
	there 	is
	no 	comparison 	of
	it
	with 	the
	many
proposals
	made 	by
	the 	Association
	which
	the 	District 	refused 	to
discuss."
34

Recognizing
	the
	importance
	of
	this
	objection
	in
	view
	of 	the
regional
	director's
	findings
	that
	a
	contract
	was
	executed
	and
successfully
	administered,
	and
	that
	only
	a
	"technical
violation"
	occurred,
	the
	majority 	turns
	to
	its
	own
	resources
	to
supply 	the 	missing
	information.
	(See
	list
	of
	contract
	items,
ante,
	p.
	11, 	n.
	11.)
	The
	majority
	offers
	these
	details
	to
rehabilitate
	the
	regional
	director's
	investigation
and
	exercise
of 	discretion.
IV
In 	reaching
	its
	conclusion,
	the
	majority
	overlooks
	the
potential
	incongruity 	of 	issuing	
a	
final
	order
	on
	the
	unfair
practice
	charge
	affirming
	the 	hearing
	officer's
	finding
	that
the
	District
	unlawfully 	refused
	te 	negotiate
	27
	items,
	after
the
	decertification 	election
	has 	been
	conducted
	and
	the
Association
	is 	decertified.
	What 	remedy 	would
	the
	Board
	then
fashion?
	Such 	an
	order
	might
	amount
	to
	little
	more
	than
	a
declaratory
	judgment.
	No
	affirmative 	obligation
	would
	be
imposed
	on
	the
	violator.
	The
	violated 	organization
	might
	take
some
	solace 	in 	the
	knowledge
	that
	it
	has
	served 	as
	a
sacrificial
	lamb
	for 	the
	benefit
	of
	its
	competitor
	and
	the
employees
	will
	be
	left
	with 	the 	anguished 	thought
	that
	had
	they
but
	known
.••
	Possibly, 	the
	Board 	would
	vacate 	the
	election
results,
	deny
	certification
	to 	the 	competing
	organization,
reinstate
	the 	Association,
	and
	order 	the 	employer
	to 	negotiate
in
	good
	faith.
	Given 	the 	various
	possibilities,
	what 	purpose
is
	served 	by 	the 	Board's 	rush 	to 	judgment 	here?
35

In
	its
	footnote 	7,
	page
	5,
	the
	majority
	acknowledges
receiving
	two
	communications
	from
	the
	regional
	director
relating
	to
	this
	matter.10	
The
	footnote
	does
	not
	indicate
the
	nature 	of
	the 	document's
	contents.
	It
	does
	reveal
	that
	the
regional 	director
	simply
	transmitted
	the
	letters
	without
comment 	and
	without
	any
	indication 	that
	they 	caused
	him
	to
change
	his 	determination. 	In
	view
	of
	this
	reference,
	it
	is
appropriate 	to
	summarize
	the 	contents
	of 	the
	letters
	and
comment 	on
	the
	regional
	director's
	action.
The
	regional
	director's
	letter
	of
	transmittal 	clearly
	was
nothing
	more
	than
	that.
	No
	inference
	should
	be 	drawn
	that
	the
lOThe
	letters
	were
	served
	ex
	parte.
	However,
	the
executive
	director
	served 	copies
'en
	all
	of 	the
	parties 	prior
	to
transmitting
	them
	to
	the
	Board. 	Board
	rule
	31090,
	"Ex
	Parte
Communications", 	(8 	Cal.Adm.
	Code),
	provides:
(a)
	An
	ex
	parte 	request 	in
	any
	communication	
by	
a
party
	which
	concerns
	a
	case
	and 	which
	may
	be
	expected
to
	affect
	the
	interest
	of 	another
	party 	to
	a
	case.
(b)
	Any
	ex
	parte
	request 	received
	by 	members
	of 	thePublic
	Employment
	Relations
	Board, 	Board
	Counsel,
	or
Executive
	Assistant 	to 	the
	Board 	which 	does
	not
contain
	a
	proof 	of 	service 	indicating 	service 	of
	such
request
	on
	all
	necessary
	parties 	shall
	be
	forwarded
	tothe 	Executive
	Assistant 	to
	the 	Board.
	The
	Executive
Assistant 	to 	the
	Board
	shall 	notify
	the 	requesting
party 	that
	no
	action
	shall
	be
	taken
	until
	the
requesting 	party
	has
	served
	all
	parties
	which 	would 	be
affected
	by
	the 	requested 	action.
(c)
	No
	action 	will
	be
	taken
	by
	the
	Board
	itself
	on
any
	ceq~est 	addressed 	to
	it
	unless
	such 	a
	request
contains
	a
	proof 	of 	servcie
	on
	all
	necessary
	parties
and
	all
	necessary
	parties
	have 	had 	a
	reasonable
opportunity 	to 	respond.
No
	objections 	or 	responses 	have 	been 	received
	by
	the 	Board.The
	executive 	director's 	service 	estops 	this
	Board 	from
considering 	whether 	service
	was
	properly
	made 	under 	paragraph(b) 	of 	the 	rule.
36

contents 	of
	the
	documents
	failed
	to
	cause
	him
	to
	change
	his
mind,
	as 	the
	majority 	footnote 	implies.
One
	of
	the
	documents
	is
	a
	letter
	from
	the 	Association
	to
the
	District
	asserting
	majority
	support
	among
	the
	employees
	in
the
	unit
	as 	evidenced
	by
	current
	membership
	cards,
	many
	of
which
	were
	obtained 	in
	December 	1979
	and
	January
	1980.
	The
second
	document
	is
	a
	letter
	from
	the
	District
	to 	the
Association,
	with
	a
	copy
	to
	the
	regional
	director,
	expressing
the
	District's
	belief 	that
	the 	Association
	currently 	represents
a
	large
	majority of
	the
	unit
	employees
	and
	the
	District's
willingness
	to
	enter
	into 	negotiations
	with 	the 	Association.
The
	full
	significance
	of 	these
	documents
	cannot
	be
determined 	merely
	from
	reading
	t~~m. 	They 	do
	suggest
	that
	the
Association's
	support
	has 	been
	revived
,or
	expanded.
Ironically,
	further 	investigation
	might
	establish 	that 	the
"change
	of 	circumstances" 	required	
by	
the
	Board
	to
	unblock
	the
election
	has
	occurred.
	Such 	a
	finding,
	if
	made, 	would 	be
directly
	on
	point,
	would 	comply
	with 	the 	Board's
	instructions
to 	the 	regional 	director 	in 	Jefferson
	Ad-66, 	and 	would
	provide
a
	factual 	basis
	for 	the 	conclusion 	reached
	by
	the
	majority.
The
	regional
	director's
	determination 	should
	be
	reversed
and 	the 	matter
	remanded
	to
	him
	for 	further 	investigation
consistent
	with 	the 	Jefferson
	Ad-66
	instructions
	and
	to 	include
reference 	to 	the 	matters 	alleged 	in 	the
	two 	documents
	received
by
	the 	Board.
37

The 	Board
	itself
	should
	expedite
	resolution 	of
	the 	appeal
from
	the 	hearing
	officer's
	proposed
	decision
	in
	the
	underlying
unfair 	practice
	case.11
llThe
	Board 	has
	consistently 	declined 	to 	establish
	an¥
priority
	system 	for
	its
	calendar 	or 	for
	that
	of 	the
	division 	of
hearing 	officers,
	a
	policy
	whose
	validity 	is
	made
	clearlyquestionable
	by
	this 	case,
	and
	for
	which 	I 	must
	share
responsibility.
38.

-
PUBLIC !MPLOYMJiNT RELATIONS BOARD
.
Jan
Fron~i!J:o Regionaj Office
177 Post St., 9th FloorSon
Fr1:2ncisc0,
Califol'nia 	94108
(415) 5.57-1350
CER.I'D!'Im MAIL
Return Receipt
lu!qUest:ed
Sep~t
5,
1979
Jefferson-Schcol
District
101 Lincoln
Avenue
oaJ.y Ci ey,
CA
	94015
William F.
K~,
	Esq~
706
	StreetPalo
Alto,
CA
	94301
Jetterson
Cl.assro::m Teachers Assoc:iatiai
151 87th
Street,
	Suite
ll
0aly City,
CA
	94015
Duane B.
	Beeson,
	Esq.100 Bush
street,
	Sui
ta
1500
San Fraooisco,
	CA
	94104
.Amiilriean
Feda1:ation
of
Teachers, Local 3267
151 87th
Street,
SUite 14
Oaly
City,
CA
	94015
St,e,,,art Weinberg,
	Esq.
45	
~lk
Street
San Frarx:isc:o,
CA
	94102
~;
	Jefferson
School
District.
.
CASB
?DSERS.t 	SF-0-12, SB'-o-41, 	Sil'-CCH5, SF-CE-33, 	(SF-R-l30A) r
ORDER
mMBEa AD-22
am
PR
mx::ISION 	A0-66
,	
near
Intere5ted Parties:
The
i.s:sue
	in this
c:ase
is
whether a deeertificatim electioo shall
ccntinl.l!!
tc
be stayed pending
the
outcaoe
of unfair practice. charges •.
On June 29, 1979
the
Board
	itself
remanded
	this
case
to
the Ban
FrancisooRegional Director 	t:c
investigate the matter an3 isstYJ a determination.
The results of this investig:aticn are that the P=ndi~ unfair praetic:e
charges should. ro longer block a dece.rtificaticn electicn
and
that
	an
electicn sl'D.lld be held as quickly as possible.

..,.
Jefferson sehool Di:st.rictSept:amber
6,
1979·
On
June
21, 1976
the Jefferson
Classroan
.Teachers Assoc::iatiai
	(J.C.T
..
A
..
)
was
certified
as the exclusive representative of a unit
of
certificated
eitq?loyees. 	The
.:r
..
c.T.A.. and the
District
entered
into negotiations,
and
on
No.veneer	
2,
1976,
unfair
practice
charges were
filed
against:
the
J.C.'.r.A.,
	by
the
District
	(Sl!-a:>-6).	
On
November
l5,
1976 charges were
filed
against
the
District
by
the
J.C.
T.A. 	{SF-cE-33).. 	A hearing
charges on
the
was·held durin; l977 and
01
JUly 13, 1978, a Hearing
Ottioet's
prQpCSE.d
decisicn
was
issued•.
	The
Hearing Officer sustained charges that
the Disuict
has refueed
to
negotiate a,,
27
	items.
	The
charges against
the
J
..
C.T..A..
	were dismissed. 	Both the
District
and the J.C.T.A. 	have
filed
eleeptiaus
to
the
propcsed decision.
	The
a:ppeal
to
the prop::sad
decisiai
is
currently
pending before
the
Board it.self·.
Prior
	to
the issuance
ot
the Hearing Officer's prop:sed
decisim,
	the
American P'Qderatiai
of
Teachers 	(A.F
..
T.)
	filed
a
dec:ertificatiai
al
petition
SeptE!llber· 23, 1977 	(SF-D-12) 	The San Fra.ncisa,:
Regiaial Director
directed
a
dt!a!rtification election
~ieh
wa:..
stayed
b-f
the
Director
Executive
at
Nov~
9,
	1977
pending the
outccme
of
the unfair.practice
hearing.,
	The
l!xecutive
Director
was
_sustained by the
Board
itself
	inJefferson School
District
	(12/30/77) !Em Order
No.
	M-22.
On February 61 1978,
the District
and
J.CaT
..
A
..
entered
intc>"
a
written
agreement covering school years 3377/78
arid
1978/79. 	The ~reement
expired
June 30, J.979.
A second
valid deoartific:atiat
petitiai
was
filed	
by A.B".T.	
on
March 29,
1979. 	However an
election
was
stayed
	the
San.
Ftancisco
R~
O!rect:or pending
resolutiai.
of. the
unfair practice
charges 	(SF--0.:Hi and
SF--cE-33). 	That
stay
Wl!'m
aFPeated to
the
Board
itself
and
in
JefferSOtl
School
District
	(<i/29/79)
	Declsia,
No..
AD-66,
	the case
was
remarided
?or
1nvestigatlon
..
All the parties
were
contacted and asked for 	informatia, and resp:nses.
The District arid the
A.F
..
T
..
subnitted infonnation. 	The J
..
C.T
..
A.
failed
to
re~
to the request for infa:matiai
and did
rxx	
subm t 	a resp:.nse.
The parti.es theffl.M.lves
haw
treat.ad
thb
case as one involving a
tedmiatl
:re.fusal
to
bargain,.
	rather	
than
ate in
'Which
overall
geed. or.
bad
faith
in negotiation
is
in issua.
	The
issue
is
whether
certain
items.
are
within the scope
of
rep.resentatiai •. 	They 	oot involve charges	
that
the District tded	
b:::>
urx5emine the exclusive representative through
actual
bad
faith
bargainin;,., 	SUbsequent to the
tiling of charges, 	the·
parties actually entered. into a contract which was apparently
administered si.x:cessfw.ly for
	its
cllrat;im~

JeUersa,
School
District
Sepcen~r
6 , 1979
'I'he
Diatriet
has indicated
to
J.C.T.A.
	that
it
has a gc:od
faith a:rubt as
tx:i
the current majority
status
of
J
..
C.T.A. and because·
of
that
doubt the
District
will
refuse to
meet
and negotiate with J.C
..
T.A,.
	regardin; a
suo:essor contract.
In
early
May
of
1979,
the
J.ocal
president
of
J
.c.T.A. 	{who
has
since
resigned)
	sent
a
memo
to
all
schools
in the
Jefferson
Scho::il
District
advertisirJ3 the	
fact that
ttminati~
for
elected offices in
J.C.T.A
were
open. 	No nani.nations were
suanitted;
	OXlSeqUently,
no
elections
were
held.	
On
June
1:3,
1979, the
last
remaining etlected
officer of J.C.'.t'.A
resigned. 	Therefore,
	at the
present
time,. there are
no
lccal elected
officers
of. J.C.T.A.
Just
prier
to
his resignaticn, the
last
rE!!Mi:nin;
J.C.T.A. otfic:er sent
out
a siurvey to
all J. c.
T.A.
members,	
asking them
if
they
wished 	t:c
sign
a waiver and proceed
to
a
&a!rtificatiai
electiai.
	Of
the
98
that
respc:nled, over 751
stated
they wished J.C.T.A
..	
ti::,	
11
	file
	a ttrequest
to
prooeea
	(i.e.
	waiver.)
	to
a11cw P.E.a..a.
	to
go
ahead
with
an
electia1
.todecide
which organi2ati.a1
will repre~nt
	teache.rs
at
tfle
bargaining
table
..	
The
lccal
officer
who
sent
a.it the
survey resigned
ai
the.day
thesurvey foI'!l'S were returned, and
therefore, no
"request
	to
proceed"
was
sent to l?.E.R.B
...
In
light
of
the
nature
at..
the
violatiois
involved, the
fact	
that
they
t,:xm place over two years
a.go~
	that
a
contract
was
eventually signed:
that
r.o
negotiatiam
are presently
underway
for
	future
a,ntracts1	
that
there
are currently
no
local
elected
otficials
of the
J
..
C.T.A.,	
and
that
the J..C.T.A
members
themselves have
indicated
their d!sire to
proceed toan
election,
	I
	feel
the charges will· not have a 	tendency to
interfere
with the
free dloice of
the employees
in
an
eled:iai.
	under these
eiroumstances, the· policies.
of
the
.Act
will
be
best effectuated
allowing- by
the employMs
an
O{.POrtmity to deeice the question
of
representation,. as
is their desire.
	Continuing to
blocJ.c
the electionthis
case
in
would frustrate the fundamental
	right of employees to
represented be
by an
employ~
organization.of
their
choice.
I
	am
therefore direct:in;. that a
~rtif
icatim
elect.fat
be held
in
the
Jeffer:son sehool
District.
	You
will
be contacted
in
the
near.
future
	to
set
up
the details of
the electicn
..

Jefferson School
District
Sepeember
6,
1979·
An. appeal to
this
&cisic:n.
may
be
maoe
within
10
cal~
days
of
	ser'\'iee
of this
decision
'ey
filing
a
sta
tenent of
the
facts
.
ur;xm
which the· appeal
is
based
with
the
P.E.R.B.
	Executiw Assistant
t.o
the
Board,
Mr
..	
Sb!phen
Barber,
	at
923:
12th
Street,
	Sui
t:e
201, Sacrament.o,
california.,
	95814
..
Copies
of
any 	must be
served
upc:n
all
other parties
to
this
	actic:n
with
an
additional
r:rJFJ	
to
thi~
Regional
Office.
Very
truly
yours,
- JilfflU
w.
't'mma
RegicM.l
Oi.rector
JWI':ed
Page 4