Oakland Unified School District (PERB A084E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OAKLAND
	UNIFIED
	SCHOOL
	DISTRICT~
Employer,
and
OAKLAND
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee
	Organization.
)
)
)	
Case
	No.
	SF-OS-74 	(R-258)
PERB
	Order 	No.
	Ad-84
Administrative
	Appeal
April
	15,
	1980
)
)
)
)
)
~
--------.-------------)
Appearances: 	Michael 	S. 	Sorgen, 	Legal Advisor
	for
	Oakland
Unified
	School
	District;
	Andrew Thomas
	Sinclair,
	Attorney
(Sinclair	
&	
Clancy)
	for
	Oakland
	School
	Employees
	Association.
Before:
	Gluck, 	Chairperson~ 	Gonzales 	and Moore, 	Members.
DECISION
The
	Oakland
	Unified
	School
	District
	seeks
	to 	appeal
	an
order 	of 	the
	San
	Francisco Regional
	Director, 	requiring 	the
Oakland
	Unified
	School
	District
	(hereafter 	District) 	to	
furnish
the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB)
	with
	a
list
	of
	eligible 	voters 	in
	an
	organizational 	security 	election
to
	be
	held 	in 	the
	District's
	paraprofessional 	representation

unit.
	The
	regional
	director's
	order
	was
	issued 	pursuant
	to
Board
	rule
	32726.
1
Rule
	32726
	is
	codified
	at
	California
	Administrative
Code,
	title
	8,
	section
	32726 	and
	reads
	as
	follows:
l
32726.
	List
	of 	Voters.
(a) 	At 	a	
date
	established
	by
	the 	Regional
Director,
	the
	employer
	shall
	file
	with 	the
regional
	office
	a
	list
	of
	names
	of
	all
employees
	included 	in
	the 	voting
	unit
	as
	ofthe
	cutoff
	date 	for'
voter
	eligibility.
Unless
	otherwise
	directed
	by
	the
	Regional
Director,
	the
	voter
	list
	for
	an
	on-siteelection
	shall
	be
	in
	alphabetical
	order	
by
assigned
	polling
	site
	and
	shall
	include 	thejob
	title
	or
	classification,
	work
	location
and
	mailing 	address 	of 	each
	eligible
	voter.
Unless
	otherwise
	directed
	by
	the
	Regional
Director,
	the
	voter
	list
	for
	a
	mailed
	ballotelection 	shall
	be
	in
	alphabetical
	order
	and
include 	the
	job
	title
	and
	mailing 	address 	ofeach
	eligible
	voter,
	and
	shall
	be
accompanied
	by 	two
	sets
	of
	name 	and
	mailing
address
	labels 	for
	each
	eligible
	voter.
	For
purposes 	of
	this 	section,
	mailing 	address
means
	the
	home
	address 	of 	each
	eligiblevoter,
	except 	in 	the 	case
	where
	the 	releaseof 	the
	home
	address 	of
	the
	employee
	is
prohibited
	by 	lawf
	or
	if
	the
	Board
	itself
shall
	determine
	that
	the
	release
	of
	home
addresses
	is 	likely 	to
	be
	harmful
	to 	theemployees.
(b) 	A copy
	of
	a
	list
	which
	meets
	therequirements 	of 	subsection
	(a) 	above 	and
which
	is
	approved 	by
	the 	Regional 	Directorpursuant 	to 	subsection
	(a) 	above
	shall
	be
served 	concurrently
	by
	the
	employer 	on 	eachemployee
	organization 	appearing
	on
	the
ballot.
	A
statement 	of 	service 	shall
	be
sent 	to 	the 	regional 	office
	with 	the
	list.
(c) 	Unless 	otherwise 	authorized
	by
	theemployer, 	any 	employee
	organization
	which
2

Under
	this 	rule,
	the
	regional
	director
	is
	without
discretion 	either
	as 	to
	the
	requirement
	that
	a
	list
	be
provided
	or
	as
	to 	the
	identity
	of
	employees
	whose 	names
and
	home
	addresses
	must 	be
	included
	on
	that
	list.
	Briefly,
the 	regional
	director
	must
	comply
	with 	the
	rule
	and
	may
	not
modify
	its
	terms.
	Thus,
	an
	appeal
	from
	a
	regional
	director's
order 	of 	this
	type, 	absent
	an
	allegation 	that
	the
	order
violated
	the
	rule,
	may
	not
	be
	appealable
	under
	Board
	rule
32380
2
which
	reads,
	in pertinent 	part:
32380.	
Limitation
	of
	Appeals
The
	following
	administrative 	decisions
	shall
	not
	be
appealable:
(a)
	A
decision
	by 	a
	Regional
	Directorregarding 	the
	mechanics
	of
	an
	election
as 	long
	as
	the 	decision
	does
	not
	affect
standing
	of
	a
	party
	to 	appear
	on
	a
	ballot;
However,
	rule
	32726
	does
	provide
	that
	the
	Board
	itself
may
	exclude 	employees'
	home
	addresses
	if 	it
	is
	determined
"that
	the
	release 	of
	such
	information
	is 	likely
	to
	be
	harmful
to 	the
	employees"
	or,
	when
	the
	release 	of
	such
	information
	is
prohibited
	by 	law.
	A
party
	seeking 	such
	a
	determination
	from
the
	Board
	itself
	must,
	therefore,
	have
	the 	opportunity 	to 	bring
receives 	the mailing 	addresses 	of 	eligiblevoters 	pursuant 	to 	this
	Regulation
	shall
	keep
these 	addresses 	confidential
	and
	shall 	not
	distribute
them
	to 	any
	other 	organization 	or 	individual.
2
califomia
Administrative
	Co
de,
	title
	8, 	section
	32380.
1
3

pertinent
	evidence 	to
	the 	Board's
	attention.
	An
	appeal
	from
	the
regional
	director's
	order
	is,
	therefore, 	appropriate
	where
	the
basis
	of
	that
	appeal
	is
	an
	allegation
	of
	harm
	to 	the
	employees
sought 	to
	be
	excluded
	or
	the
	existence
	of
	law
	precluding
	the
	use
of
	the
	release
	of
	certain
	employeesv 	home
	addresses.
Here,
	the
	District
	does
	not
	allege
	harm.
	It
	really
	seeks
the
	Board
	to
	adjudicate
	that
	its
	entire 	rule
	is
	unlawful,
	relying
on
	an
	opinion
	of
	the
	California
	Attorney
	General	
which
	in
	turn
cites
	Civil
	Code
	Section
	1798
	et
	seq. 	(Information
	Practices
Act).
3
While
	entitled
	to
	considerable
	weight, 	the 	Attorney
	General's
opinion
	is
	not
	law 	and
	is
	not
	necessarily 	controlling.	
The
Board
	adopted
	rule
	32726
	after
	extensive 	public
	testimony
	and
consideration 	of 	the 	very
	question
	raised
	by
	the
	District.
4
Further, 	the
	Board
will
	not 	adjudicate 	the
	legality
	of
	its
own
	rules.
	The
	District 	is
	in
	the
	wrong 	forum. 	Repeal
	of
	its
rules,
a:J8-uming
	the
	Board 	so
	desires,
	should
	be
	accomplished only
through
	its
	quasi-leg1slative
	process;
	at
	a
	public
	meeting, 	pursuant
to 	public 	notice
	and
	with 	the 	opportunity 	afforded 	to 	the 	public
	to
present
	its
	views,
The
	District's
	appeal
	is
	DISMISSED.
PER
	CURIAM
3
opinion 	of 	the 	Attorney 	General 	No. 	80-108,
smith v. 	Anderson 	(1967) 	67
	Cal.2d 	635, 	641,
	fn.5;Hutchins 	v. 	County 	Clerk 	(1934) 	140 	Cal.App.348; 	People 	v. 	Berry
(1956) 	147 	Cal.App.2d 	33.
4
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
·San Francisco Regional Office
177 Post St., 9th Floor
San Francisco, California 	94108
(415) 557-1350
February 26, 	1980
Michael S. 	Sorgen - 	Legal Advisor
Oakland Unified School
1025 	2nd Avenue
Oakland, CA 	94606
EDMUND G. BROWN JR., Governor
Re: 	Case l!SF-0S-74 	(R-258H) 	.- ,:;'.,
Oakland -Unified School District Paraprofessional Organizational 	Securify
Election
Dear Mr. 	Sorgen:
As 	I 	mentioned in our phone conversation prior to receiving your letter dated
February 21, 	the purpose of including home addresses on voter lists 	is 	to
provide for an informed electorate, 	facilitating a free and reasoned 	choice.
For purposes of PERB Regulation 32726(a), 	I 	find that Gov. 	Code section
6254(c) 	does not prohibit putting home addresses on the voter list. 	Further-
more, 	a Regional Director has no authority to determine that the release of
home addresses 	is likely to be harmful to 	the employees. 	That determination
can only be made by the Board itself. 	I 	am therefore directing that you include
home addresses on the voter list which is 	to be received by PERB no 	later than
March 17, 	1980.
An appeal of this decision may be made to the board itself within 10 	d~ys of
ser,.rice of this 	letter by filing a statement of the facts upon which 	the
appeal is based with the executive assistant to the board at 923 12th St.,
Sacramento, 	CA 	95814. 	Copies of any appeal must be concurrently served ugon
all parties and the San Francisco Regional Office.
Proof of service of the appeal must be filed with the executive assistant.
Should you have any questions 	concerning this matter please contact me.
Very 	truly yours,
'
James W. 	Tamm
Regional Director
JWT/fjw
enclosures
cc: 	Andrew Thomas Sinclair, Attorney