Jamestown Elementary School District (PERB A187E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAMESTOWN ELEMENTARY SCHOOL DISTRICT,
Employer,
and
JAMESTOWN 	TEACHERS 	ASSOCIATION/
CTA/NEA,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	TUOLUMNE
CHAPTER 	276,
Employee Organization.
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) 	Case No. 	S-D-l 18
Administrative 	Appeal
PERB Order No. Ad-187
June 21, 	1989
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Appearance: 	Burton Gray, 	Senior Field Representative, 	for
California 	School 	Employees 	Association and 	its 	Tuolumne
Chapter 2 76.
Before Porter, 	Craib, 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from the Board agent's 	refusal
to 	dismiss 	a 	decertification petition 	filed by 	the 	Jamestown
Teachers Association/CTA/NEA 	(JTA/CTA/NEA). 	The California
School 	Employees Association and 	its 	Tuolumne Chapter 	276 	(CSEA)
moved to dismiss the petition on the grounds that: 	(1) 	JTA, 	CTA,
and NEA are the 	same organization; 	and, 	(2) 	teachers represented
by 	JTA/CTA/NEA 	supervise 	aides 	who would 	also be 	represented by
JTA/CTA/NEA 	if 	the 	decertification attempt were 	successful.
)
)

We 	have 	reviewed 	the 	Board 	agent's 	determination and 	the
exceptions 	thereto 	filed by CSEA, 	as well as the 	entire record 	in
this 	case. 	The Board affirms 	the Board agent's 	findings 	and
conclusions, 	set 	forth 	in his 	administrative determination and
order to 	show cause, 	attached hereto.
ORDER
The 	Board 	agent's 	determination 	is 	hereby AFFIRMED 	and 	the
appeal 	is 	DISMISSED. 	A 	stay of 	election 	is 	hereby DENIED and the
Director of 	Representation 	is 	ORDERED to 	conduct 	an election to
determine the organization, 	if any, 	to be certified as 	the
exclusive 	representative 	of 	the unit of 	classified employees.
Members 	Craib 	and 	Shank 	joined 	in this 	Decision.
Member Porter's 	dissent begins 	on page 	3.
N	
2

Porter, 	Member, 	dissenting: 	This Board is charged with
the 	duty 	and 	responsibility of 	administering and 	enforcing 	the
provisions 	of 	the 	Educational 	Employment 	Relations Act 	(EERA)
and effectuating the purposes 	and policies 	thereof. 	(Banning
Teachers Association. 	CTA/NEA v. 	Public 	Employment Relations
Board 	(1988) 	44 Cal.3d 799, 	804; 	San Mateo City School
District v. 	Public Employment Relations 	Board 	(1983) 	33 	Cal.3d
850, 	855-856; 	Leek v. 	Washington Unified School District 	(1981)
124 Cal.App.3d 43, 	48-49, 	hg. 	den.; 	Link v. 	Antioch Unified
School District 	(1983) 	142 Cal.App.3d 765, 	768-769; 	Gov. 	Code,
secs. 3540 and 3541.3, subds. 	(c), 	(g), 	(h), (i), 	(1) and (n).)
In the 	instant case, 	the aforesaid duties 	and
responsibilities 	arise within the 	context 	of 	a 	decertification
petition whereby 	the 	Jamestown 	Teachers 	Association/CTA/NEA,1
which 	is 	already 	the 	exclusive 	representative 	of 	the 	certificated
bargaining unit 	in the Jamestown Elementary 	School 	District
(District), 	seeks 	to decertify and supplant the California 	School
Employees 	Association Tuolumne 	Chapter 	276 	as 	the 	exclusive
representative 	of 	the 	classified bargaining unit 	in the 	District.
If 	successful 	in its petition and the resultant
decertification/representation election, 	the 	Jamestown Teachers
Association/CTA/NEA will 	become 	the 	exclusive 	representative 	for
1The 	Jamestown Teachers 	Association 	is 	affiliated with 	the
California Teachers Association 	(CTA) 	and the National 	Education
Association 	(NEA).
33

both 	the 	certificated2 and 	the 	classified3 bargaining 	units.
Consistent with PERB's 	responsibility 	to 	administer 	and
enforce EERA's provisions, 	subdivision 	(a) 	of PERB Regulation
327764 prescribes 	that 	"(u)pon receipt of a petition for
decertification, 	the Board 	shall 	investigate and, 	where
appropriate, 	conduct 	a hearing 	and/or an election or take
such other action as 	necessary." 	Hence, 	this 	Board will
investigate 	and 	scrutinize 	the 	relevant 	factors 	pertaining
to 	a 	decertification petition 	and will 	take 	such 	action as
is 	appropriate and 	consistent with EERA.
From the 	Board 	agent's 	investigation and 	the 	limited
record before us, 	certain salient 	factors 	appear concerning
the petitioner, 	the Jamestown Teachers Association/CTA/NEA:
1. 	the 	Jamestown Teachers Association/CTA/NEA is 	an employee
organization whose membership 	is 	composed of, 	and whose
officers 	are, 	certificated employees 	of the Jamestown
Elementary 	School 	District;
2. 	the 	constitution and bylaws 	of 	the Jamestown Teachers
Association, 	and those of 	its 	affiliate California Teachers
Association, 	restrict membership 	(and, 	concomitantly,
2The 	"certificated" 	are 	those public 	school 	employees
employed 	in positions 	requiring an 	appropriate 	teaching 	or
services credential. 	(See Ed. 	Code, 	sec. 	44065.)
3The 	"classified" 	are 	those public 	school 	employees 	employed
in positions 	not 	requiring a 	teaching or 	services 	credential.
(See Ed. 	Code, 	sec. 	45104.)
4PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq.
4

voting, 	office holding, 	etc.) 	to certificated employees;5
and
3. 	the Jamestown Teachers Association/CTA/NEA 	is 	presently
the 	exclusive 	representative 	of 	and 	for the 	certificated
employees 	and 	the 	certificated bargaining unit 	in the
Jamestown 	Elementary 	School 	District.
The presence of 	such 	factors 	in the 	instant decertification
petition—whereby 	the 	Jamestown 	Teachers 	Association/CTA/NEA
seeks 	to 	decertify 	and 	supplant 	the 	incumbent 	exclusive
representative 	of 	the 	classified 	bargaining 	unit--calls 	into
consideration 	certain EERA provisions, 	including Government 	Code
sections: 	3543 	(right of public 	school 	employees 	to 	join and to
-
participate 	in the 	activities 	of 	an employee organization 	for 	the
purpose of representation); 	3540.1. 	subdivision fd) 	(defining
"employee 	organization" 	as 	"any 	organization which 	includes
employees 	of 	a public 	school 	employer and which has 	as 	one 	of 	its
primary purposes 	representing those 	employees 	in their relations
with that public 	school employer") 	(emphasis added); 	3543.1.
subdivision 	(a) 	(rights 	of 	employee organizations 	to represent
their members 	and 	"to 	establish 	reasonable 	restrictions 	regarding
5There 	are 	references 	in the 	limited record before us
that the 	Jamestown Teachers Association 	"may" 	have voted to
allow some type of membership 	for classified employees, 	but
that 	the 	California 	Teachers Association has 	repeatedly 	rejected
membership 	for 	classified 	employees. 	No 	evidence was 	submitted
by 	the 	Jamestown Teachers 	Association and/or the 	California
Teachers 	Association 	showing 	that 	noncertificated 	employees 	may
become members, 	vote and/or hold office 	in the organizations.
Moreover, 	the record does 	not 	show that the Jamestown Teachers
Association/CTA/NEA 	has 	established 	"reasonable 	restrictions"
regarding who may join. 	(See Gov. 	Code, 	sec. 	3543.1, 	post.)
55

who 	may 	join" 	and/or 	"reasonable provisions 	for the dismissal
of 	individuals 	from membership") 	(emphasis added); 	and 3545.
subdivision 	(b)(3) 	(classified employees 	and 	certificated
employees may not be 	in the 	same negotiating unit).
In 	connection with 	the 	Board 	agent's 	investigation of
the 	instant petition, 	the 	current 	exclusive representative of
the 	classified bargaining unit, 	California 	School 	Employees
Association Tuolumne Chapter 276 	(CSEA Tuolumne Chapter 	276),
raised 	the 	contention that 	the 	Jamestown Teachers 	Association/
CTA/NEA 	"does 	not 	qualify as 	a bona 	fide 	employee 	organization
under the meaning of the Act 	[EERA]" 	in that the 	constitution and
bylaws 	of 	the 	Jamestown Teachers Association and 	its 	affiliate
California 	Teachers 	Association 	bar 	noncertificated 	employees
(i.e., 	the classified employees) 	from membership and from
participating 	in voting matters 	and holding office. 	CSEA
Tuolumne 	Chapter 	276 	asserted 	that 	such prohibitions 	do 	not
comport with the 	classified employees' 	rights 	to 	join and to
participate 	in the 	activities 	of 	an employee organization
representing them, 	and that the 	classified 	employees will 	be
"dominated 	and 	totally 	controlled 	by 	the 	Jamestown 	Teachers
Association 	and 	the California 	Teachers Association."
The 	Board 	agent, 	citing 	State of 	California 	(Department
of Developmental Services) 	(1982) 	PERB Decision No. 	228-S and
Service Employees 	International Union. 	Local 	99 	(Kimmett) 	(1979)
PERB Decision No. 	106, 	opined that the 	"internal" 	organizational
structure 	of 	an entity is 	not dispositive 	of 	its 	status 	under
6

EERA as 	an employee organization, 	but that what 	is 	determinative
is whether the entity has, 	as a central purpose, 	the
representation of 	employees. 	Finding that 	the 	filing of 	the
decertification petition evinced 	such a 	central purpose, 	the
Board 	agent 	concluded that 	the petitioner qualified 	as 	an
employee organization, 	and thus 	ordered a decertification/
representation 	election 	in 	the 	classified 	bargaining 	unit.
Developmental 	Services 	appropriately 	set 	forth 	that,
to 	qualify as 	an employee 	organization under EERA, 	an entity
must have 	as 	one of 	its 	primary purposes 	the representation of
employees. 	(See Gov. Code, 	sec. 	3540.1, 	subd, 	(d).) 	The case,
however, 	involved an employee who had organized a 	group 	of
employee/tenants 	to 	represent 	their 	fellow employees 	in dealing
with their employer on employee housing matters. 	It did not
involve 	a 	situation where 	the 	entity 	seeking 	to 	represent 	the
employees 	was 	one which barred 	those 	employees 	from 	joining 	or
participating in its activities. 	Likewise, 	Kimmett was 	a 	"duty
of 	fair representation" 	case brought by a union member which
dealt with 	"internal" 	union procedures 	such as 	the 	scheduling of
chapter meetings. 	The 	facts presented 	in Kimmett did not 	involve
any prohibition on 	joining 	the union, 	voting or holding union
office. 	Accordingly, 	Developmental 	Services 	and Kimmett did not
reach the particular 	issues 	presented 	in this 	case. 	Noteworthy
is 	this 	Board's 	keen observation 	in 	its 	subsequent decision 	in
Teachers 	United Uniserv Unit. 	CTA/NEA 	(1983) 	PERB Decision
No. 	349, page 7, 	emphasis added:
77

TU's 	identity: 	TU's bylaws provide that
members of the various 	locals, 	as well as 	the
locals themselves, 	can have membership 	in the
new organization. 	There 	is 	nothing 	in the
record to 	indicate 	that 	the bylaws 	include
restrictions 	or 	limitations 	on membership
which might 	arguably 	remove 	TU 	from 	coverage
of 	EERA's 	definition of 	an employee
organization. 	There is no dispute, 	nor could
there be, 	that TU has as 	its primary purpose,
the 	representation of public 	school 	employees
in their relationship with their public
school employers. 	We conclude, 	accordingly,
that TU 	is 	an employee 	organization within
the meaning of 	the Act.
Critical 	to 	a 	resolution of whether Jamestown Teachers
Association/CTA/NEA 	qualifies 	as 	an 	employee 	organization under
EERA, 	with respect 	to a decertification/representation petition
concerning 	the 	classified 	employees 	and 	the 	classified 	bargaining
unit of 	the Jamestown Elementary School 	District, 	is 	Government
Code 	section 	3543. 	This 	EERA provision prescribes 	that public
school 	employees—which 	includes 	classified 	employees--"shall
have the right to 	form, 	join
. - , 	and participate in the activities
of 	employee 	organizations 	of 	their own 	choosing 	for 	the purpose
of 	representation on all 	matters 	of 	employer-employee 	relations."
(Gov. 	Code, 	sec. 	3543, 	emphasis added.) 	This EERA provision
confers 	on public 	school 	classified 	employees 	the 	right 	to become
regular, 	full members 	of 	the 	employee organization along with the
right 	to participate 	in the 	concomitant membership privileges 	of
voting, 	holding office, 	etc. 	(Union of American Physicians and
Dentists 	(Stewart) 	(1985) 	PERB Decision No. 	539-S, pp. 	4-5;
California Association of 	Psychiatric 	Technicians 	(Long) 	(1989)
PERB Decision No. 	745-S, 	pp. 	8-9; 	California State Employees'
8

Association 	(Fry) 	(1986) 	PERB Decision No. 	604-S, p. 	4; 	State of
California 	(Dept, 	of the Youth Authority) 	(1985) 	PERB No. 	535-S,
p. 	30; 	Directors Guild of America. 	Inc. 	v. 	Superior Court 	(1966)
64 Cal.2d 42, 	51-54; 	International Association of Fire
Fighters v. 	County of Merced 	(1962) 	204 Cal.App.2d 387, 	390;
James v. 	Marinship Corp. 	(1944) 	25 Cal.2d 721, 	726, 	730-731, 	737-
739; 	Endler v. 	Schutzbank 	(1968) 	68 Cal.2d 162, 	173; 	Professional
Fire Fighters, 	Inc. 	v. 	City of Los Angeles 	(1963) 	60 Cal.2d 276,
289; 	49 Ops.Cal.Atty.Gen. 	1 	(1967) pp. 	2-5; 	see also Gov. 	Code,
sec. 	3540.1, 	subd. 	(i)(l); 	San Lorenzo Education Association v.
Wilson 	(1982) 	32 Cal.3d 841, 	843; 	Pasillas v. 	Agricultural Labor
Relations Board 	(1984) 	156 Cal.App.3d 312, 	331, 	339, 	hg. 	den.;
Radio Officers' 	Union v. 	National Labor Relations 	Board 	(1953)
347 U.S. 	17, 	40-42 	[98 L.Ed. 	455, 	477-478].) 	Employees who do
not 	become members 	of 	the 	employee 	organization may be barred
from voting on or participating 	in policies, 	contract proposals
in negotiations, 	contract ratification, 	and other employment
matters. 	(El Centro 	Elementary Teachers Association 	(Willis)
(1982) 	PERB Decision No. 	232, pp. 	6-7, 	15-17; 	Fontana Teachers
Association, 	CTA/NEA 	(Alexander) 	(1984) 	PERB Decision No. 	416;
and 	see 	Rio Hondo College 	Faculty Association. 	CTA/NEA 	(Furriel)
(1986) 	PERB Decision No. 	583, pp. 	3-5, 	7.)
In Directors Guild of America. 	Inc. 	v. 	Superior Court 	(1966)
64 Cal.2d 42, 	our Supreme Court set forth:
We 	shall 	explain that 	a union cannot
arbitrarily 	exclude 	from membership 	a 	person
employed 	in the 	craft 	or 	industry whose
employees 	are 	represented by 	the union 	even
99

when the union does 	not have a 	union 	shop
contract. . . .
In the 	landmark case of James 	v. 	Marinship
Corp.. 	supra, 	25 Cal.2d 721, 	this court- -. -
enjoined the 	enforcement of 	a union 	shop
contract under which 	the 	union required
Negroes 	to become members 	of 	an 	"auxiliary"
local 	but 	denied 	them 	full 	membership 	in the
"white" 	local which negotiated the contracts,
handled 	grievances 	and 	dispatched 	employees
to 	their 	jobs. 	Holding that 	since the union
controlled a 	"monopoly" 	of 	jobs 	through 	its
closed 	shop contract, 	it occupied a 	"quasi
public 	position 	similar to 	that 	of a public
service business and (had) 	. 	. 	.
corresponding obligations" 	(p. 	731), Chief
Justice Gibson prophetically 	stated, 	"It
is 	difficult to 	see how a union can fairly
represent 	all 	the 	employees 	of 	a bargaining
unit unless 	it 	is willing to admit all 	to
membership, 	giving them the 	opportunity to
vote 	for union 	leaders 	and 	to participate
in determining union policies." 	(P. 	735.)
In Williams v. 	International etc. 	of
Boilermakers 	(1946) 	27 Cal.2d 586, 	the court
held that 	the principle 	of 	James 	applied not
only in the case of a 	"monopoly" 	control 	of
jobs but 	in any 	situation of 	a denial of
employment 	because 	of 	arbitrary 	exclusion
from a union. 	. 	. 	.
The philosophy of 	these 	cases 	finds 	its
ultimate 	application in the 	ruling of
Thorman v. 	International Alliance etc.
- - -Employees.- -supra. 	49 Cal.2d 629, which upheld
a writ of mandamus 	directing a union to 	admit
to 	membership 	a 	motion picture projectionist
whom 	it had arbitrarily 	excluded. 	Plaintiff,
a member of an 	"auxiliary" 	union, 	subject to
displacement 	from his 	job by 	senior members
of the 	"main" 	local, 	could not participate in
the affairs 	of 	the main 	local 	or negotiation
of 	contracts; 	he 	could become a member of
that local only by a two-thirds vote, 	a
requirement which 	the 	court 	apparently 	held
to be 	arbitrary. 	As 	one 	commentator points
out, 	"It 	is difficult to explain such an
order 	except on the 	theory 	that 	an 	individual
10

within a 	bargaining unit 	represented 	by
a union has a right, 	quite apart 	from his
right to work, 	to participate in that union's
affairs. 	Indeed, 	in the case of a union
operating as 	a 	statutory bargaining 	represen-
tative, 	under state or federal 	legislation,
that 	theory would 	seem 	to 	follow 	from 	the
position of the 	United 	States 	Supreme Court
that 	such a union has 	a 	statutory, 	if not
constitutional, 	obligation to represent
fairly all 	employees 	within the 	bargaining
unit." 	(Grodin, 	Union Government & the Law:
British and American Experiences 	(1961) 	179.)
The decisions 	of this 	court thus 	recognize
that membership 	in the union means 	more 	than
mere personal or 	social 	accommodation. 	Such
membership 	affords 	to the 	employee not only
the 	opportunity to participate 	in the
negotiation of 	the 	contract 	governing his
employment but also 	the 	chance 	to 	engage
in the 	institutional 	life of the union.
Although 	in the 	case which 	involves 	inter-
state 	commerce 	the 	union must 	legally 	give
fair representation to 	all 	the 	appropriate
employees, 	whether or not they are members
of the union, 	the union official, 	in the
nature of political realities, 	will in all
likelihood 	more 	diligently 	represent 	union
members, 	who can vote him out of office, 	than
employees whom he must 	serve only as 	a matter
of 	abstract 	law.
Our decisions 	further 	recognize 	that 	the
union 	functions 	as 	the medium 	for the
exercise of 	industrial 	franchise. 	As 	Summers
puts 	it, 	"The right to 	join a union involves
the 	right 	to an economic 	ballot." 	(The 	Right
to Join a Union 	(1947) 	47 Colum. 	L.Rev. 	3 3.)
Participation in the union's 	affairs 	by the
workman compares 	to 	the participation of 	the
citizen in the affairs 	of his 	community.
The union, 	as 	a kind of public 	service
institution, 	affords to its members the
opportunity 	to 	record 	themselves 	upon all
matters 	affecting 	their 	relationships 	with
the employer; 	it 	serves 	likewise as a vehicle
for the 	expression of 	the membership's
position on political 	and 	community 	issues.
The 	shadowy 	right 	to 	"fair representation"
by the union, 	accorded by the Act, 	is by no
means 	the 	same 	as 	the hard 	concrete ability
11

to vote 	and to participate 	in the affairs 	of
the union.5
The 	above grounds 	for 	condemnation of
arbitrary rejection 	from membership 	apply-
as 	forcefully to 	the 	situation 	in which the
union does 	not have 	a union 	shop 	contract 	as
to that in which it does. 	The need of the
worker 	for union participation 	is 	not 	reduced
because 	the union does 	not 	enjoy a union
shop; 	the basis 	for membership lies 	in the
right and desirability of 	representation, 	not
in the union's 	economic 	control 	of the 	job.
(64 Cal.2d at pp. 	51-53, 	emphasis added 2d
par., 	fns. 	omitted except fn. 	5.)
EERA also prescribes 	that 	"(e)mployee 	organizations 	may
establish 	reasonable 	restrictions 	regarding who 	may 	join 	and 	may
make 	reasonable provisions 	for the dismissal 	of 	individuals 	from
membership." 	(Gov. Code, 	sec. 	3543.1, subd, 	(a), emphasis added;
California School Employees Association 	(Parisot) 	(1983) 	PERB
Decision No. 	280, pp. 	5-6, 	8-11; 	California Association of
Psychiatric Technicians 	(Long), 	supra, 	PERB Decision No. 	745-S,
p. 	8, 	fn. 	8; 	Union of American Physicians and Dentists 	(Stewart)f
5"(E)xclusion 	from 	the 	union may deprive
the 	individual 	of 	various 	social benefits
provided by the organization. 	. 	. 	. 	For
example, 	pensions 	or medical 	insurance may be
difficult to obtain through other 	channels,
and 	strike 	benefits 	are provided only by 	the
union. 	. 	. 	. 	Denial of membershi-p (also)
bars 	the 	individual 	from any participation
in the union's 	decisions which affect his
welfare. 	Thus, 	he cannot speak at union
meetings; 	he cannot vote 	in a union
referenda; 	and he cannot be a 	candidate 	for
union office. 	Where the union exercises
substantial control, 	the individual's right
to participate may be 	considered the 	most
important 	interest 	involved, 	especially where
power has 	been allocated to 	the union 	for the
purpose 	of 	strengthening 	the 	democratic
process." 	[Citations.]
12

supra. 	PERB Decision No. 	539-S, pp.4-5 and fn. 	8; 	and see
James v. Marinship Corporation, supra, 2 5 Cal.2d 721, 736;
Pinsker v. 	Pacific Coast Society of Orthodontists 	(1969) 	1 	Cal.3d
160, 	166; 	Cason v. 	Glass Bottle Blowers Association 	(1951)
37 Cal.2d 	134, 	143-145; 	Colgate-Palmolive-Peet Company v.
National Labor Relations Board 	(1949) 	338 U.S. 	355, 	361-362
[94 L.Ed. 	161, 	168-169].) 	Thus, 	for example, 	it may be
reasonable 	for 	an employee 	organization's 	constitution or bylaws
to 	prohibit 	supervisory 	employees 	from membership 	and 	holding
office where 	the 	organization represents 	the nonsupervisory
employees' 	bargaining unit. 	(California School Employees
Association (Parisot). 	supra. 	PERB Decision No. 	280a, pp. 	2-3;
and see Gov. 	Code, 	sec. 	3545, 	subd. 	(b)(2).)
In the 	instant 	case, 	the record before us 	does 	not reveal
why 	it would be 	reasonable 	to prohibit 	the 	classified 	employees
from membership 	and 	office 	in 	an 	employee 	organization which
seeks 	not 	only 	to 	represent 	said 	classified 	employees 	but 	to
be 	the 	exclusive 	representative 	of 	the 	classified 	employees'
bargaining unit. 	One might 	surmise 	that 	the Jamestown Teachers
Association/CTA/NEA's 	prohibition 	on 	noncertificated 	membership
and 	office 	holding 	is 	to 	keep 	classified 	employees 	from having
a vote or input on any of 	the policies, 	negotiating positions,
educational policy consultations, 	etc., 	of the employee
organization. 	Insofar as 	the Jamestown Teachers Association/
CTA/NEA would 	seek 	to 	be--or 	is--the 	exclusive 	representative
solely 	for the 	certificated 	employees 	and 	the 	certificated
13

bargaining unit, 	such a restriction would appear to be
reasonable. 	(See Gov. Code, 	secs. 	3543.2 and 3545, 	subd. 	(b)(3);
California School Employees Association 	(Parisot). 	supra, 	PERB
Decision No. 	280a, 	pp. 	2-3.) 	But, 	by the instant petition,
Jamestown 	Teachers 	Association/CTA/NEA 	seeks 	also 	to 	represent
the 	classified 	employees 	while 	still 	barring 	them 	from membership
and holding office. 	Common sense 	suggests that, 	not only is 	such
a 	blanket 	restriction on 	classified 	employee membership 	unreason-
able, 	but it is 	also totally antithetical to the very nature and
purposes 	of 	an 	employee 	organization petitioning under 	EERA 	to
become the 	exclusive 	representative 	of 	the 	classified 	employees.
There 	is 	no question that the 	Jamestown Teachers
Association/CTA/NEA 	is 	an 	employee 	organization 	qualified 	under
EERA 	to 	represent 	the 	certificated 	employees 	and 	the 	certificated
bargaining unit. 	However, 	its prohibition against uncertificated
employees 	being members 	and holding 	office disqualifies 	it
under 	EERA 	from 	representing 	the 	classified 	employees 	and 	the
classified bargaining unit. 	(Gov. 	Code, 	secs. 	3540 and 3543;
Directors Guild of America. 	Inc. 	v. 	Superior Court. 	supra.
64 Cal.2d 42, 	51-54; 	Union of American Physicians and Dentists
(Stewart), 	supra, PERB Decision No. 	539-S, pp. 	4-5; 	California
State Employees' 	Association 	(Fry). 	supra, 	PERB Decision
No. 	604-S, 	p. 	4; 	and see California School Employees Association
(Parisot), supra, 	PERB Decision No. 	280, 	pp. 	8-9; 	Teachers United
Uniserv Unit, 	CTA/NEA, 	supra, 	PERB Decision No. 	349, 	p. 	7.)
A related 	but 	independent 	qualification 	inquiry 	arises 	from
14

the 	facts 	surrounding the 	instant petition. 	The 	Jamestown
Teachers 	Association/CTA/NEA 	is 	an 	employee 	organization
composed of 	certificated employee members, 	and 	is 	the 	exclusive
representative 	of 	the 	certificated 	negotiating unit 	in the
District. 	It now seeks 	also to represent the 	classified
employees 	and 	supplant CSEA Tuolumne Chapter 2 76 	as 	the
exclusive 	representative 	of 	the 	classified 	negotiating 	unit
in the District. 	If 	successful on the petition and 	in the
election, 	the 	Jamestown Teachers Association/CTA/NEA would
become 	the 	exclusive 	representative 	for both the 	classified 	and
the 	certificated employees. 	The 	same 	employee 	organization,
therefore, 	would negotiate the wages, 	hours, 	and terms and
conditions 	of 	employment 	in the 	District 	for both the 	classified
and 	the 	certificated 	employees.
EERA prescribes, 	with respect to 	the negotiating process
involving public 	school 	employees, 	that 	"(c)lassified employees
and 	certificated 	employees 	shall 	not be 	included 	in the 	same
negotiating unit." 	(Gov. 	Code, 	sec. 	3545, 	subd. 	(b)(3).) 	In
fulfilling 	its 	responsibility 	to 	oversee 	and enforce 	this
separate 	negotiating 	unit 	process 	established 	by 	EERA 	(San Mateo
City School 	District v. 	Public 	Employment Relations 	Board, 	supra,
33 Cal.3d 850, 	856; 	Banning Teachers Association. 	CTA/NEA v.
Public Employment Relations Board, 	supra, 	44 Cal.3d 799, 	804),
may 	this 	Board 	authorize 	a 	single 	employee 	organization which
is 	composed of 	certificated employee members, 	whose officers 	are
certificated employees, 	which allegedly 	is 	thus 	"wholly dominated
15

and 	controlled" 	by 	the 	certificated 	employee members 	and
officers, 	and which is 	the present 	exclusive representative of
the 	certificated negotiating unit, 	to become also the 	exclusive
representative 	for the 	classified 	employees 	and 	the 	classified
negotiating 	unit 	as 	well?
While 	there would not be a direct 	inclusion of 	the
classified employees 	into the certificated unit, 	the realities 	of
the 	situation would be 	that 	a 	single 	employee 	organization would
become 	the 	exclusive representative 	for both the 	classified
employees 	and the 	certificated 	employees, 	would be determining
the 	negotiating policies 	and proposals 	for both 	the 	classified
and the 	certificated employees, 	and thence negotiating the 	same
with 	the 	District 	employer 	on behalf 	of 	both the 	classified 	and
the 	certificated employees. 	Such a 	single 	exclusive 	representa-
tive 	for 	both 	the 	certificated 	and 	the 	classified 	negotiating
units 	would 	circumvent 	or breach 	the 	statutory 	"wall 	of
separation" 	between 	the 	classified 	and 	certificated 	negotiating
units 	in the negotiation process and would, 	in effect, 	constitute
an indirect violation of 	subdivision 	(b)(3) 	of Government Code
section 3545. 	(Banning Teachers Association. 	CTA/NEA v. 	Public
Employment Relations Board, 	supra, 	44 Cal.3d 799, 	805-806;
California 	State Restaurant Association v. 	Whitlow 	(1976)
58 Cal.App.3d 340, 	347, hg. den.)
This breach of 	the 	statutory 	"wall 	of 	separation" 	between
the 	classified 	and 	certificated 	employees 	and 	their 	respective
negotiating units, 	with the resultant 	intrusion or mingling of
16

certificated 	employee 	interests 	into 	those 	of 	the 	classified
employees, 	is 	exacerbated in the 	instant case wherein the
classified 	employees 	are barred 	from membership, 	voting and
holding 	office 	in the proposed 	single 	exclusive 	representative
employee 	organization. 	In a 	"logical projection 	from known
facts," 	the 	negotiating policies 	and proposals 	concerning wages,
hours, 	and terms 	and conditions 	of 	employment in the District 	.
for both 	the 	classified 	and 	the 	certificated 	employees 	may 	thus
become 	subject 	to the dictates 	and 	control 	of 	the 	certificated
employee 	members 	and officers 	of 	the proposed 	single 	exclusive
representative.6 (See Los Angeles 	Unified 	School 	District v.
Public 	Employment Relations 	Board 	(1986) 	191 	Cal.App.3d 	551,
557-558.) 	Moreover, 	it must be recognized with respect to the
negotiating process 	in the public 	schools 	that as 	to the 	so-
called 	"big 	ticket" 	negotiating 	item of wages 	(including 	health
-
and welfare benefits), 	the certificated employees and their
certificated 	negotiating unit 	already 	have 	a 	significant
preferential 	negotiating 	advantage 	over 	the 	classified 	employees
because, 	in an elementary 	school district 	(as 	in the 	instant
case), 	the Education Code mandates that a public 	school district
must 	expend at 	least 	sixty percent 	of 	its 	"current 	expense 	of
6But even if. the 	classified employees 	could become 	full
members, 	vote, 	hold office, 	etc., 	that would still not remedy
the Government Code section 3543, 	subdivision 	(b)(3), 	problem.
Furthermore, 	if 	the 	classified employees were to obtain 	such
rights 	in the Jamestown Teachers Association/CTA/NEA, 	they 	could
then be 	in a position to have 	a voice 	in or 	influence 	educational
objectives 	and policies, 	another matter which the 	statutory 	"wall
of separation" was designed to avoid. 	(See Gov. 	Code, 	sec.
3543.2, 	subd. 	(a).)
17

- -
education" 	on the 	salaries 	of 	the 	certificated 	classroom
teachers. 	(Ed. 	Code, 	sec. 	41372.)7
Lastly, 	even assuming that 	the 	Jamestown Teachers
Association/CTA/NEA 	qualified 	as 	an 	employee 	organization
to 	exclusively 	represent 	the 	classified 	employees 	and 	their
negotiating 	unit--notwithstanding 	Government 	Code 	sections 	3543
and 	3545, 	subdivision 	(b)(3)--there 	is 	still a 	further issue
raised by 	the 	incumbent 	exclusive 	representative 	of 	the
classified 	negotiating unit. 	CSEA Tuolumne 	Chapter 	276
contends 	that 	the 	certificated employees 	in the District who 	are
represented 	by 	Jamestown Teachers 	Association/CTA/NEA 	are 	the
supervisors of the classified employees. 	Thus, 	it is 	claimed,
Government Code section 3545, 	subdivision 	(b)(2),8 bars the
Jamestown 	Teachers 	Association/CTA/NEA 	from 	being 	the 	exclusive
7The 	reverse 	side of 	such a 	collective bargaining coin would
picture 	an 	employee 	organization 	composed 	of 	classified 	employee
members 	and officers which was 	the 	exclusive representative 	of
the 	classified 	bargaining 	unit 	and whose 	constitution 	and/or
bylaws 	prohibited certificated 	employees 	from membership, 	voting,
officership, 	etc. 	Could this 	Board 	sanction such an employee
organization becoming 	the 	exclusive 	representative 	of 	the
certificated 	employees 	and their bargaining unit, 	being able
to 	control 	the 	negotiations 	for both 	the 	classified 	and 	the
certificated negotiating units, 	and having the 	exclusive
representative 	of 	the 	certificated personnel's 	right 	to 	consult
with the public 	school 	employer on educational 	objectives,
content of 	courses 	and curriculum, 	and the 	selection of
textbooks? 	(See subd. (a) 	of Gov. 	Code, 	sec. 	3543.2; 	and
see fn. 	6, 	supra.)
8Government Code section 3545, 	subdivision 	(b)(2),
prescribes, 	with respect to the negotiating and contract
administration processes, 	that the 	same employee organization
shall 	not 	represent 	both 	the 	supervisory 	employees 	and 	the
employees whom the 	supervisory employees 	supervise. 	(See
Los Angeles 	Unified School 	District v. 	Public 	Employment
Relations Board, 	supra. 	191 Cal.App.3d 551, 	555-558.)
18

representative of both the 	supervisors 	(certificated) 	and
the 	supervised 	(classified). 	The Board agent rejected this
contention, 	citing Redlands 	Unified 	School 	District 	(1982)
PERB Decision No. 	235. 	In the Redlands 	Unified School 	District
case, 	the hearing officer 	found, 	from the 	facts presented at
the hearing, 	that the classroom teachers were not 	supervisory-
employees 	because 	their 	supervision of 	aides was 	minimal 	and only
incidental 	to 	their professional 	duties. 	CSEA Tuolumne 	Chapter
276 	asserts 	that certain elements 	of 	the 	relationship between
the teachers 	(certificated) 	and the aides 	(classified) 	in the
Jamestown Elementary 	School 	District 	differ 	significantly 	from
such 	relationships 	as 	existed 	in Redlands 	Unified 	School
District, 	including 	the 	teachers 	effectively 	recommending 	the
hiring or the disciplining of 	aides, 	and contends 	that a hearing
on the petition 	(PERB Reg. 	32776) 	would enable it to demonstrate
that 	Redlands 	Unified School 	District 	is 	not controlling on this
issue.
I 	believe that the 	incumbent 	exclusive 	representative 	is
entitled to such a hearing so that it may show, 	if, it can, 	that
the 	supervisory 	situation 	in Jamestown 	Elementary 	School 	District
differs 	from that 	in the 	Redlands 	Unified 	School 	District 	case 	to
the 	extent 	that 	a different 	result would be 	required.
Upon the present record, 	I would dismiss the decertification
petition on two 	independent grounds: 	(1) 	the Jamestown Teachers
Association/CTA/NEA 	is 	not 	qualified to be 	the 	exclusive
representative 	for the classified negotiating unit, 	and 	(2) 	one
19

employee 	organization may 	not 	exclusively 	represent 	both 	the
certificated and the classified negotiating units. 	(Gov. 	Code,
secs. 	3543, 	3543.1, subd. (a) and 3545, 	subd. 	(b)(3); Banning
Teachers Association. 	CTA/NEA v. 	Public 	Employment Relations
Board, 	supra. 	44 Cal.3d 799, 	805-806; 	Directors Guild of America
- -
Inc. 	v. 	Superior Court, 	supra. 	64 Cal.2d 42, 	51-54.) 	If 	the
petition was not to be 	so dismissed, 	I would, 	at a minimum,
afford 	the 	incumbent 	exclusive 	representative 	of 	the 	classified
negotiating unit 	a hearing on the petition with respect 	to 	its
Government Code section 3545, 	subdivision 	(b)(2) 	contention.
(PERB Reg. 	32776.)
20

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JAMESTOWN ELEMENTARY SCHOOL DISTRICT,
Employer,
and
JAMESTOWN TEACHERS ASSOCIATION/CTA/NEA,
Employee Organization,
and
CALIFORNIA 	SCHOOL EMPLOYEES ASSOCIATION
AND ITS TUOLUMNE CHAPTER 2 76,
Employee Organization.
)
)
) 	Case 	No. 	S-D-118
(S-R-807)
ADMINISTRATIVE
DETERMINATION
FINDING PETITION
VALID
)
)
)
)
)
)
)
)
)
)
)
)
)
On September 19, 	1988, 	the above-referenced decertification
petition was 	filed with the Public Employment Relations Board
(PERB) by the Jamestown Teachers Association/CTA/NEA (JTA), which
is 	seeking to become the exclusive representative of an
established unit of 	classified employees represented by the
California School Employees Association and its Tuolumne Chapter
276 	(CSEA). On October 11, 	1988, the CSEA filed a motion to
dismiss the petition on the grounds that the JTA is not an
employee organization within the meaning of the Educational
Employment Relations Act 	(EERA),1 and further, 	that the JTA is
precluded by section 3545(b)(2) 	from representing the classified
employees because it currently represents the teachers who, 	the
CSEA alleges, 	are the supervisors of the classified employees.
1EERA is 	codified at Government Code 	section 	3540 et seq.
All statutory references are to the Government Code, 	unless
otherwise 	specified.
' 	( 	,
__________________ )

By order dated 	December 	7, 	1988, 	the CSEA was 	afforded 	the
opportunity 	to 	show 	cause why 	its 	motion 	to dismiss 	should 	not 	be
dismissed. 	That order, 	a copy of which is attached, 	is expressly
incorporated within 	this 	administrative 	determination.
On December 	21, 	1988, 	the CSEA timely 	filed a response 	to
the 	order to 	show cause. 	In its response 	the CSEA argues 	that,
notwithstanding 	the 	fact 	that 	the 	JTA may 	have 	extended
membership rights 	to 	classified employees, 	such membership rights
have 	not 	been 	granted those 	employees 	by 	the 	JTA's 	affiliate, 	the
California Teachers Association 	(CTA). 	The CSEA argues, 	as 	it did
in its motion 	to dismiss, 	that this denial 	of membership rights
is violative 	of 	the 	EERA. 	However, 	the CSEA has 	offered no
additional 	facts 	or 	legal 	argument which alter 	the 	conclusion
•
reached 	in the 	December 	7 	order, 	which was 	that 	there was 	no
factual 	or 	legal 	basis 	upon which to grant the motion to dismiss.
The 	attached order 	to 	show cause 	sets 	forth 	reasons 	why 	the
JTA's 	alleged 	policy 	of 	restricting membership 	to 	certificated
employees does 	not require dismissal 	of 	the petition. 	For
identical 	reasons, 	the CTA's membership restriction 	likewise does
not require dismissal 	of the petition. 	Indeed, 	because 	the 	CTA is
merely 	an 	affiliate 	of 	the 	JTA and not 	seeking 	to 	become 	the
exclusive 	representative,2 its membership requirements 	are 	even
2Board 	decisions 	have 	clearly 	indicated 	that 	the 	legal
status 	of 	an 	affiliate 	is 	not equivalent 	to that 	of 	the 	exclusive
representative. 	In Washington Unified School 	District 	(1985) 	PERB
Decision No. 	549 	the 	Board noted 	"that the 	mere 	affiliation 	of
the 	local 	organization with CTA was 	insufficient 	to make 	CTA 	the
exclusive 	representative...." 	The 	Board 	cited Fresno 	Unified
School District 	(1982) 	PERB Decision No. 	208, 	where it had
22

less 	germane 	to 	the 	validity 	of 	this 	decertification 	petition
than 	are 	the 	membership requirements 	of 	the 	JTA.
concluded 	that 	the 	affiliate 	of 	the 	exclusive 	representative
could 	not request 	or 	be 	required 	to 	participate 	in 	the
statutory impasse procedures. 	Therefore, 	it cannot be
held 	liable 	for 	a violation of 	subsections 	3543.5(c) 	or
(d), 	which obligate only the exclusive representative.
The 	CSEA also 	reiterated 	its 	argument 	that 	sufficient 	facts
exist 	to 	demonstrate 	that 	teachers 	in the 	Jamestown Elementary
School 	District 	supervise 	classified employees, 	precluding 	the
JTA 	from 	representing both 	teachers 	and 	classified 	employees. 	The
CSEA 	argues 	that 	a 	formal 	hearing 	is 	necessary 	to 	elucidate 	the
relationship 	between 	the 	teachers 	and 	classified 	employees.
However, 	as noted in the order of December 	7, 	PERB has held as 	a
matter of 	law that 	teachers 	are not 	supervisors, 	therefore, 	a
hearing 	to 	take 	evidence 	on 	that 	issue would 	serve 	no 	valid
purpose.
Accordingly, 	the CSEA having 	failed 	to 	show 	sufficient 	cause
why 	its 	motion to dismiss 	should not be denied, 	the motion to
dismiss 	the 	decertification petition 	is 	hereby denied.
Investigation 	of 	the 	decertification petition 	has
established 	that 	the 	CSEA was 	certified 	as 	the 	exclusive
representative on June 	11, 	1986, 	and that no written agreement
currently 	exists 	between 	the 	Jamestown 	Elementary 	School 	District
and the 	CSEA. 	This 	investigation has 	resulted 	in the
administrative 	determination 	that 	the 	limitations 	expressed 	in
PERB regulation 32776(b) 	do not exist in this 	case. 	The
W	
3

decertification 	petition 	is 	therefore 	determined 	to 	be 	timely
filed. 	Further, 	review of 	the 	proof 	of 	support 	submitted by 	the
JTA 	in 	this 	case 	has 	resulted 	in 	the 	administrative 	determination
that 	it 	is 	sufficient to meet 	the 	requirements 	of regulation
32770(b)(2).
Because 	the 	requirements 	for 	a 	decertification petition
have 	been met, 	an election 	shall 	be 	conducted 	to determine 	the
organization, 	if any, 	to be 	certified as 	the exclusive
representative 	of 	the 	unit 	of 	classified 	employees. 	A PERB
representative will 	be 	contacting 	the 	parties 	shortly 	to 	discuss
the mechanics 	of 	the 	election.
Right 	of Appeal
An 	appeal 	of 	this 	decision 	to 	the 	Board 	itself 	may 	be made
within 	ten 	(10) 	calendar days 	following the date 	of 	service 	of
this decision 	(PERB regulation 32360). 	To be timely filed, 	the
original 	and 	five 	(5) 	copies 	of 	any appeal 	must be 	filed with the
Board 	itself 	at 	the 	following 	address:
Members, 	Public 	Employment Relations 	Board
1031 	18th Street, 	Suite 	200
Sacramento, 	CA 95814-4174
A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close of business 	(5:00 	p.m.) 	on the 	last day 	set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or Express
United States 	mail, 	postmarked not 	later 	than 	the 	last 	day 	set
for 	filing 	. . . " 	(regulation 	32135). 	Code 	of 	Civil 	Procedure
section 	1013 	shall 	apply.
•
4

The 	appeal 	must 	state 	the 	specific 	issues 	of 	procedure, 	fact,
law or 	rationale 	that 	are 	appealed 	and must 	state 	the 	grounds 	for
•
the appeal 	(regulation 32360(c)). 	An appeal will 	not
automatically prevent the 	Board from proceeding 	in 	this 	case. 	A
party 	seeking 	a 	stay 	of 	any 	activity may 	file 	such 	a 	request with
its 	administrative 	appeal, 	and must 	include 	all 	pertinent 	facts
and 	justification 	for 	the 	request 	(regulation 	32370).
If 	a 	timely 	appeal 	is 	filed, 	any other party may 	file with
the 	Board 	an original 	and 	five 	(5) 	copies 	of 	a response 	to the
appeal within ten 	(10) 	calendar days 	following 	the 	date 	of
service of the 	appeal 	(regulation 	32375).
«
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be
"served" 	upon 	all 	parties 	to 	the 	proceeding 	and 	on 	the 	Los
Angeles 	Regional 	Office. 	A 	"proof of 	service" 	must accompany each
copy of 	a 	document 	served upon a party or 	filed with 	the 	Board
itself 	(see 	regulation 	32140 	for 	the 	required 	contents 	and a
sample 	form). 	The 	document will be 	considered properly 	"served"
when 	personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail
postage 	paid 	and 	properly 	addressed.
Dated: 	January 3, 	1989 	7mccoCharles F. 	McClamma
Labor 	Relations 	Specialist
55

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Jamestown 	Elementary 	School 	District,
Employer,
and
Jamestown Teachers Association/CTA/NEA,
Employee 	Organization,
and
California 	School 	Employees 	Association
and 	its 	Tuolumne 	Chapter 	276,
Employee 	Organization.
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) 	Case 	No. 	S-D-118
(S-R-807)
ORDER TO SHOW
CAUSE
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On September 	19, 	1988, 	the above-referenced decertification
petition was 	filed with 	the 	Public 	Employment 	Relations 	Board
(PERB) 	by the 	Jamestown Teachers Association/CTA/NEA 	(JTA)
pursuant 	to 	PERB regulation 	32770.l The 	JTA 	is 	seeking to become
the 	exclusive 	representative 	of 	an 	established 	unit 	of 	classified
employees 	represented by 	the 	California 	School 	Employees 	Associa-
tion and its 	Tuolumne Chapter 	276 	(CSEA).
The 	CSEA 	filed a motion 	to dismiss 	the 	petition 	on October
11, 	1988, 	alleging that the JTA is not an employee organization
within 	the 	meaning of 	the 	Educational 	Employment 	Relations 	Act
(EERA).2 CSEA 	further alleges 	that 	the 	JTA currently represents
the 	supervisors of the classified employees and, 	therefore, 	the
'PERB' 1PERB's regulations are codified at title 8 of the Administ-
rative Code, 	commencing at 	section 	31001.
2EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
All 	statutory references 	are 	to 	the 	Government 	Code, 	unless
otherwise 	specified.
'\
______________________ )

JTA 	is 	precluded 	from 	also 	representing 	the 	classified 	employees
by Government Code 	section 3545(b)(2).3
Central 	to 	the 	CSEA's 	allegation 	concerning the 	JTA's 	status
as 	an employee organization 	is 	the 	CSEA's 	assertion 	that the
constitution and by-laws 	of 	the JTA and 	its 	affiliate, 	the CTA,
prohibit 	non-certificated 	employee 	membership. 	According 	to 	the
CSEA, 	the 	classified employees 	which JTA here 	seeks 	to represent
will be unable 	to vote on the 	use 	of dues, 	will be 	ineligible 	to
hold elective office 	in either 	the 	JTA or the CTA, 	and will,
therefore, 	be 	"dominated 	and 	totally 	controlled 	by 	the 	Jamestown
Teachers Association, 	and the California Teachers Association."
CSEA argues 	that 	this 	exclusion 	and 	consequent domination of
these 	classified 	non-members 	violates 	Government 	Code 	section
3543, 	which provides, 	in part, 	that 	"...employees 	shall have the
right 	to 	form, 	join and participate 	in the activities 	of 	employee
organizations." 	Although unstated by the 	CSEA, 	the 	implied
conclusion 	to 	its 	syllogism 	is 	that 	an 	entity which denies
employees 	such 	rights 	cannot be an 	employee 	organization within
the meaning of 	the 	EERA.
3The provision reads, 	in pertinent part, 	as 	follows
(b) 	In all cases:
(2) 	Except as provided in subdivision 	(c), 	a
negotiating unit 	of 	supervisory 	employees
shall 	not 	be 	appropriate 	unless 	it includes
all 	supervisory 	employees 	employed by 	the
district 	and 	shall 	not 	be 	represented by 	the
same 	employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.
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The 	CSEA 	cites 	to neither 	PERB 	nor 	National 	Labor 	Relations
Board(NLRB) 	decisions 	in 	support of 	its 	contention that the 	JTA
is 	not an employee 	organization.4 The CSEA does note, 	however,
that Congress 	enacted the 	Landrum-Griffin Act, 	one 	of 	the
essential 	purposes 	of which was 	the 	strengthening 	of 	internal
union 	democracy.
The 	lead 	case 	in 	the 	application 	of 	the 	term 	"employee
organization" 	is 	State 	of 	California 	(Department of 	Developmental
Services) 	(1982) 	PERB Decision No. 	228-S, 	in which the Board
found 	it 	"unnecessary 	for 	a 	group of 	employees 	to 	have 	a 	formal
structure, 	seek exclusivity, 	or be 	concerned with all 	aspects 	of
the 	employment relationship 	in order 	to 	constitute 	a 	statutory
labor organization." 	The Board observed that the NLRB, 	when 	faced
with the 	same 	issue, 	focused upon 	"whether the group has, 	as 	a
central 	purpose, 	the representation of employees 	on employment-
related matters." 	Having 	filed a decertification petition
pursuant 	to 	Board regulations 	along with proof 	of 	support, 	the
JTA has 	evinced 	such a 	central purpose, 	and therefore, 	meets 	the
test 	stated 	in 	Developmental 	Services.
4The CSEA anticipates 	that 	the 	JTA will 	seek 	to 	apply 	the
Board's 	decision 	in 	Redlands 	Unified 	School 	District 	(1982) 	PERB
Decision No. 	235, 	and argues 	that it 	is 	factually distinguishable
from this 	case. 	Redlands 	concerns 	the question of 	the 	supervisory
status 	of 	teachers, 	and thus 	is highly relevant to the
consideration of 	the CSEA's 	other point, 	i.e., 	that the 	JTA 	is
improperly 	seeking 	to represent 	employees 	who 	are 	supervised 	by
employees whom 	it 	already represents. 	It 	provides 	no 	guidance 	on
the 	question 	of whether 	the 	JTA 	is 	an 	employee 	organization.
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While 	Developmental 	Services 	is 	the 	Board's 	clearest
pronouncement 	on 	the 	meaning 	of 	the 	term 	"employee 	organization,"
Developmental 	Services 	dealt with markedly different 	facts 	in key
respects. 	First, 	in Developmental 	Services the organization was
in its 	formative 	stage 	and lacked formal 	structure. 	Here, 	the JTA
is 	a 	fully developed 	organization with a 	constitution, 	officers,
and affiliated organizations. 	Further, 	in Developmental 	Services
there 	was 	no 	issue 	concerning whether 	the 	individuals 	proposed 	to
be 	represented had membership rights. 	Nevertheless, 	Developmental
Services 	suggests 	that 	it 	is 	the organization's 	purpose, 	not the
content 	of 	its 	constitution 	and by-laws 	which will 	determine 	its
status 	as 	an employee organization. 	Developmental 	Services
provides 	no 	basis 	upon which 	to 	conclude 	that 	the 	extent 	to which
employees 	are 	entitled 	to 	participate 	in the 	internal 	functions
of the organization is relevant to, 	much less dispositive of, 	the
question of 	the 	status 	of 	that organization.
Although not directly on point, 	the 	Board's 	decision 	in
Service Employees 	International Union, 	Local 	99 	(Kimmett) 	(1979)
PERB Decision No. 	106, 	is highly instructive because 	it addresses
two 	issues which are 	implicit 	to the 	question 	raised by 	the 	CSEA
here: 	The 	first is 	the 	obligation 	imposed upon the 	employee
organization to 	fairly represent all 	members 	of 	a 	bargaining
unit; 	and the 	second 	is 	the 	right 	of 	an employee 	organization 	to
control 	its 	own internal 	affairs.
Kimmett 	involved, 	in part, 	the question of whether the
employee 	organization breached 	its 	duty 	of 	fair 	representation by
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holding monthly membership meetings 	at 	times 	at which 	certain
members 	were 	unable 	to 	attend because 	of 	conflicting working
hours. 	In concluding there was 	no breach of the 	duty of 	fair
representation, 	the 	Board 	looked to whether the 	activities 	of 	the
organization 	"have 	a 	substantial 	impact on 	the 	relationships 	of
unit members 	to their employers," 	Kimmett at p.8, 	and noted 	that
[t]he 	duty of 	fair representation 	implies 	some
consideration of 	the 	views 	of various 	groups 	of
employees 	and 	some 	access 	for 	communication 	of 	those
views, 	but there 	is no requirement that 	formal
procedures 	be 	established.
Kimmett at p.11(footnote omitted).
In 	Kimmett 	the 	Board 	concluded 	that 	it 	"must decide
whether 	employees 	have 	any rights 	under 	sections 	3540 	and 	3543 	to
have 	an 	employee 	organization 	structured 	or 	operated 	in 	any
particular way." 	Kimmett at p.15. 	Section 	3540 recognizes 	"the
right 	of public 	school 	employees 	to 	join organizations 	of 	their
own choice." 	Section 3543 	states:
Public 	school 	employees 	shall 	have 	the right to 	form,
join, 	and participate 	in the 	activities 	of employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation....
It 	is 	the 	latter provision upon which 	the 	CSEA 	chiefly relies
for 	support 	of 	its 	argument. 	What 	the 	Board 	said 	concerning 	the
effect of these provisions is, 	therefore, 	especially pertinent:
Read broadly, 	these 	sections 	could be 	construed 	as
prohibiting 	any 	employee 	conduct 	which would 	prevent 	or
limit 	employee's 	participation 	in 	any of 	its
activities. 	The 	internal 	organization 	structure 	could
be 	scrutinized 	as 	could 	the 	conduct 	of 	elections 	for
union officers 	to 	ensure 	conformance with an 	idealized
participatory 	standard. 	However 	laudable 	such 	a 	result
might be, 	the Board 	finds 	such 	intervention in union
affairs 	to be 	beyond 	the 	legislative 	intent 	in 	enacting
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the 	EERA....We 	cannot believe 	that by 	the 	use 	of 	the
phrase 	"participate 	in 	the 	activities 	of 	employee
organizations... for the purpose of representation on
all 	matters 	of 	employer-employee relations" 	in 	section
3543, 	the 	Legislature 	intended this 	Board to create a
regulatory 	set 	of 	standards 	governing the 	solely
internal 	relationship between a union and 	its 	members.
Rather, 	we believe 	that the 	Legislature 	intended 	in the
EERA to grant and protect employees' 	rights 	to be
represented 	in 	their 	employment 	relations 	by 	freely
chosen 	employee 	organizations.
Kimmett at pp.15-17 	(footnote omitted). 	The Board 	clearly
indicated 	that 	section 	3543 	was 	intended 	to be 	a 	grant 	of 	the
right 	of 	employees 	to have 	a 	free 	choice 	in 	choosing their
representative 	and 	not 	a 	limitation 	on 	the 	nature 	of 	such
representative.
As 	previously noted, 	the 	second ground 	for 	the 	CSEA's 	motion
to dismiss 	is 	its 	contention that because 	the 	JTA 	currently
represents 	teachers, 	and because 	teachers 	supervise 	classified
employees, 	the 	JTA may not also represent 	the 	classified
employees 	because 	to do 	so would violate 	section 	3545(b)(2).
The 	issue 	as 	to whether 	classroom 	teachers 	are 	supervisors
was 	decided by 	the 	Board 	in 	Redlands 	Unified 	School 	District
(1982) 	PERB Decision No. 	235a. 	In Redlands the 	Board 	said that
teachers 	do 	perform 	supervisory 	functions 	as 	outlined by 	section
3540.l(m) 	but found
that 	such 	authority was 	exercised 	incidentally 	to 	the
performance of teachers' 	professional duties, 	and not
as agents 	of the employer. 	Thus, 	as a matter of law, 	we
[hold] 	teachers not to be 	supervisors of aides, 	based
upon 	our 	review and 	endorsement 	of 	a 	well-established
line 	of 	cases 	decided 	by 	the 	National 	Labor 	Relations
Board.
Redlands at p.3 	(citations omitted).
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The 	CSEA contends 	that 	the 	facts 	in 	this 	case 	can be
distinguished 	from those 	in 	Redlands. 	CSEA argues 	that 	the
teachers 	sit 	on 	interview panels 	considering 	classified
applicants 	and 	effectively 	recommend 	the 	hiring 	and 	firing 	of
classified employees. 	Even if 	the 	CSEA could demonstrate 	that
teachers 	have 	a 	substantive 	role 	in hiring 	and 	firing 	classified
employees, 	such 	facts would require 	the 	same result. 	Redlands
stands 	for the proposition that, 	while 	teachers may perform
supervisory duties as envisioned by 	section 3540.l(m), 	the
authority 	is 	not exercised 	in the 	interest 	of 	the 	employer, 	but
is 	part 	and parcel 	of a 	teacher's 	professional duties. 	Because
teachers, 	as a matter of law, 	are not supervisors, 	the
possibility of a violation of 	section 	3545(b)(2) 	does not exist.
The 	CSEA has 	failed to allege 	facts 	that would, 	even 	if 	true,
demonstrate 	that the JTA 	is 	not 	an employee organization, 	or 	that
the 	JTA 	is 	seeking 	to represent employees 	who 	are 	supervised by
employees 	already represented by the 	JTA. 	Further, 	a preliminary
investigation has revealed that, 	as 	to the CSEA's 	first point,
the 	JTA has 	voted 	to extend membership rights 	to 	classified
employees. 	If 	such were proven to be the case, 	the CSEA's
argument 	on that 	issue 	would be moot.
In 	light of 	the 	above, 	CSEA is 	afforded the 	opportunity to
SHOW CAUSE 	by 	facts 	and 	legal 	argument why 	its 	motion 	to 	dismiss
the 	decertification 	petition 	should not 	be 	denied. 	Factual
assertions 	by CSEA must 	be 	supported 	by 	declarations 	under
penalty of perjury, 	by witnesses with personal knowledge, 	and
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should indicate 	that the witness, 	if called, 	could competently
testify about 	the 	facts 	asserted. 	If the 	facts 	asserted are
reliant 	on 	a writing, 	the writing must be attached 	to 	the
declaration 	and authenticated 	therein. 	CSEA's 	statement 	and
supporting materials 	must 	be 	filed with 	PERB's 	Los Angeles
Regional Office, 	3530 Wilshire Blvd., 	Suite 650, 	Los Angeles, 	CA
90010-2334, 	no later than December 21, 	1988. 	Service and proof of
service 	pursuant 	to 	PERB regulations 	are 	required.
Dated: 	December 7, 	1988 Charles F. 	McClamma
Labor 	Relations 	Specialist
CO	
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