South County Community College District . . . See Ad-130 (PERB A215E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SObTH COUNTY COMMUNITY COLLEGE
DISTRICT,
Employer,
and
CHABOT-LAS POSITAS FACULTY
ASSOCIATION,
Exclusive Representative,
and
CALIFORNIA TEACHERS ASSOCIATION/
NEA,
Employee Organization.
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____________________ )
Case No. SF-AC-22
( R-1)
Administrative Appeal
PERB Order No. Ad-215
October 26, 1990
Appearances: Robert J. Bezemek and Katherine J. Thomson,
for Chabot-Las Positas Faculty Association; A. Eugene
Huguenin, Jr., Attorney, for California Teachers Association.
Attorneys,
Before Hesse, Chairperson; Shank and Camilli, Members.
DECISION
CAMILLI, Member: The California Teachers Association (CTA}
appeals the administrative determination of a Board agent,
granting the request of the Chabot College Teachers Association
(Association or CCTA) 1 to amend its certification under the
Public Employment Relations Board (PERB or Board) Regulation
1 In its initial petition, the Association was identified as
the ''Chabot College Teachers Association" (CCTA). The request
was amended on February 2, 1990 to reflect CCTA's decision to
change its name to the Chabot-Las Positas Faculty Association
(CLPFA). Nevertheless, in order to remain consistent with the
administrative record in this case, all references to CLPFA will
appear as "CCTA." References to CCTA in its affiliated status
will appear as 11 CCTA/CTA/NEA. 11

In
	granting
CCTA'S
	request, 	the
	Board
	agent
	concluded
	that:
	(1)
	the
	changes
from
	the
	disaffiliation
	with
	CTA
	were
	not
	sufficiently
	resulting
(2)
	the
	dramatic
	to
	alter
	the
	local 	organization's 	identity;
	and
disaffiliation
	election
	was
	conducted
with
	adequate
	due
	process
safeguards
	in
	accordance
	with 	the
	organization's 	Constitution.
formal
	The
	Board
	agent
	also
	denied
	CTA's
	request 	for
	a
	hearing
	on
the
	grounds
	no
	material
	facts
	were
	in 	dispute,
	no
	credibility
presented
	issues
	needed
	to
	be
	resolved,
	and 	any
	legal
	arguments
the
	petition
	were
	thoroughly 	discussed
	by
	parties
	in
	CCTA's
	and
CTA's
	response.
32761
2
to
	reflect
	CCTA'S
	disaffiliation
	with
	CTA.
agent's
	For
	the 	reasons 	expressed
	below,
	we
	affirm 	the
	Board
administrative
	determination.
FACTUAL
	SUMMARY
CCTA
	was
	initially 	certified
	as
	the 	exclusive
representative 	for 	the
	certificated
	bargaining
	unit 	in 	the
	South
County
	Community
	College
	District
	on 	March
	2, 	1978.
	CTA
	and
	the
National
	Education
	Association
	(NEA)
	were
	identified
	as
affiliates
	of 	the 	Association 	in
	its
	certification
with
	PERB.
On
	December 	11, 	1989,
	CCTA
	filed
	a
	request 	for
	an
	amended
certification
	to 	reflect
	its 	disaffiliation
	with
	CTA
	and
	NEA.
2PERB
	Regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq.
	PERB
	Regulation
32761
	provides, 	in pertinent 	part:
(a)
	An
	employee
	organization
	may
	file
	with
the 	regional 	office
	a
	request 	to 	reflect
	a
change
	in
	its 	identity 	in 	the 	event 	of
	a
merger, 	amalgamation,
	affiliation 	or 	transfer
of 	jurisdiction 	affecting 	it.
2

Article
	XII
	of
	CCTA's
	Constitution
	provides,
	in
	part,
	that
the 	Constitution
	may
	be
	amended
	by: 	(1)
	a
	two-thirds 	vote
	at
	any
regular
	meeting,
	or
	(2)
	a
	majority
	vote
	at
	a
	regular
	meeting
followed
	by
	a
	ratification
	vote
	by
	a
	majority 	of 	the
	total
membership
	of 	the 	Association.
	CCTA
	utilized
	the
	latter
	method
to
	amend
	its
	Constitution 	in
	this
	case.
	Article
	III,
	which
governs
	affiliation,
	provides
	that
	CCTA
	shall
	be
	a
	chartered
chapter
	of
	CTA
	and 	an
	affiliated
	local
	Association
	of
	NEA.
The
	executive
	board
	of
	CCTA
	initiated
	discussions 	to
	amend
Article
	III
	which
	would
	delete
	language
	establishing
	its
	charter
and
	affiliation
	with
	CTA
	and
	NEA.
	The
	discussions
	were
subsequently
	opened
	to
	the 	general
	membership
	at
	a
	meeting
	held
on
	October
	10, 	1989. 	At
	the
	conclusion 	of 	the
	meeting,
	a
	formal
motion
	to
	amend
	the 	Constitution
	by
	striking 	Article
	III
	was
filed
	with
	CCTA's
	secretary,
	Joseph
	Kuwahara
	(Kuwabara).
A
written 	notice 	to
	all
	CCTA
	members 	was
	issued
	by 	Kuwabara
on
	November
	6,
	1989
	and
	again
	on
	November
	15, 	1989,
	stating 	that
the
	proposed
	amendment
	would
	be
	discussed
	at
	meetings
	scheduled
for
	November
	16,
	1989
	at
	Chabot
	College
	and
	November
	17, 	1989
	at
Las
	Positas
	College.
	The
	notices 	also 	stated 	that
	a
	vote
	would
be
	taken
	at
	the 	conclusion 	of 	these
	meetings 	and,
	if
	the
amendment
	passed,
	an
	election
	would 	be 	conducted
	among
	the
membership
	present.
At
	the
	November 	16
	and 	17, 	1989
	meetings,
	24
	of
	37
	members
voted 	in 	favor 	of
	disaffiliation,
	9
	against 	disaffiliation,
	and
	4
members
	abstained.
	On 	November 	20, 	1989,
	CCTA
	officials 	issued
	a
3

a	memo
	announcing
	the
	above
	results
	and
	stating 	that 	secret
ballot 	(ratification)
	election
	would 	be
	held
	among
	the
	membership
of
	November
	27
	through
	December
	1, 	1989. 	Of
	the
	during 	the
	week
74
	members
	of
	CCTA
	participating
	in 	the
	ratification
	election,
	45
ballots
	were
	cast
	for
	disaffiliation,
	20
	against,
	and
	9
	voters
abstained.
The
	total
	membership
	of
	CCTA
	is
	between
	75
	and
	79
	full-time
faculty
	members
	and
	4
	part-time 	faculty
	members.
3
CCTA
represents
	a
	bargaining
	unit
	of
	approximately
	640
	employees.
	The
officers
	of
	CCTA,
	elected
	prior
	to
	disaffiliation,
	remain
	the
same
	and
	continue
	to 	deal 	with
	the
	District
	management. 	The
Association's 	chief 	negotiator
	remains
	the
	same
	and,
	aside
	from
and
	the 	deletion
	of
	Article
	III,
	the 	Association's 	Constitution
bylaws 	remain
	essentially
	the
	same.
THE
	ADMINISTRATIVE 	DETERMINATION
Board
	agent,
	CTA
	asserted
	a
	variety
	of
	theories,.before
	the
in 	support 	of
	its
	request
	that
	the
	amended
	certification
	be
denied.
	First,
	CTA
	argued
	that 	disaffiliation 	is
	not 	covered
	by
PERB
	Regulation
	32761
	and
	therefore
	cannot
	be 	accomplished
through
	an
	amended
	certification
	procedure.
	The
	Board
	agent
rejected 	this
	argument,
	noting
	that 	the
	Board
	has
	asserted
	its
jurisdiction
	under 	Regulation
	32761
	over 	issues 	involving 	changes
3
The
	Board
	agent 	noted 	there 	is
	a
	slight
	disagreement 	as 	to
the 	size
	of
	CCTA's
	membership. 	The
	Association 	claims
	79
	full-
time
	members 	and
	4
	part-time
	members
	belong 	to
	CCTA. 	CTA
	claims
CCTA's 	membership
	consists 	of
	75
	full-time 	faculty
	members. 	The
Board 	agent 	concluded, 	however,
	that 	the 	discrepancy
	is
irrelevant 	since
	it
	had 	no
	effect
	on
	the
	outcome 	of 	the 	election.
4

to 	the
	exclusive
	representative 	in
	Ventura
	Community
	College
District
	(1982)
	PERB
	Order
	No.
	Ad-130, 	and
	Anaheim
	City
	School
District.
	et 	al.
	(1983)
	PERB
	Decision
	No.
	349.
	The
	Board
	agent
a~so
	noted,
	the
	National
	Labor
	Relations
	Board
	(NLRB)
	and
	federal
courts
	have
	supported
	the
	use
	of
	amendment
	of
	certification
procedures
	to
	reflect 	disaffiliations.
Next,
	CTA
	asserted
	that
	disaffiliation
	should
	be
	denied
based
	on
	the 	opposition
	of
	the
	originally
	certified
	union.
	The
Board
	agent
	rejected
	this
	argument
	noting
	that
	the
	originally
certified
	exclusive
	representative
	is
	one 	and
	the
	same
	as
independent
	CCTA.
	The
	Board
	agent
	also
	noted
	that
	the 	consent 	of
the 	parent 	organization
	has
	not
	been
	cited
	by
	the
	NLRB
	or
	federal
courts
	as
	a
	prerequisite
	for
	disaffiliation.
CTA
	also 	asserted
	that
	CCTA
	is
	not 	the
	same
	organization	
as
CCTA/CTA/NEA
	because: 	(a)
	the
	dues
	structure, 	referring 	to 	the
amount
	of
	dues
	assessed
	and
	expenditure 	for 	unified
	membership
with
	CTA
	and
	NEA,
	is 	different;
	(b)
	the 	Association
	is
	not
subject 	to 	the
	due
	process 	requirements
	for 	individual
	members
imposed
	by
	CTA
	on
	local
	affiliates;
	(c)
	significant
	bylaw 	changes
to 	the 	Association's 	Constitution
	have
	occurred;
	and 	(d)
	CTA/NEA
services 	are
	no
	longer
	available 	to
	CCTA.
	The
	Board
	agent
rejected
	these
	arguments
	noting
	that
	such 	changes
	did 	not
significantly 	alter
	CCTA's
	identity.
The 	Board
	agent
	found
	that 	the 	only 	change
	in 	the 	dues
structure 	related 	to 	the
	amount
	of 	dues 	assessed 	bargaining 	unit
members.
	As 	a
	result
	of
	disaffiliation,
	members
	are
	no
	longer
assessed
	CTA
	and 	NEA's
	affiliation 	fees.
	The 	Board 	agent 	further
5

noted
	that
	the 	Association 	continues
	to 	exercise 	control
	over
	its
local
	dues
	and
	never
	had
	control
	over
	dues
	paid
	to
	CTA
	and
	NEA.
The
	Board
	agent
	also
	noted
	that
	CCTA's
	Constitution
	and
	bylaws
still
	require
	the
	same
	due
	process
	procedures
	imposed 	on
	locals
affiliated
	with
	CTA
	(e.g.,
	open
	nomination
	procedures,
	secret
ballot
	elections,
	one-person/one-vote).
	With
	respect 	to 	the
bylaws,
	the
	Board
	agent
	noted
	that
	CTA
	did
	not
	identify
	what
changes
	have
	occurred
	other
	than
	the 	elimination
	of
	the
affiliation
	article
	(Article
	III)
	of
	the 	Constitution. 	Further,
the
	Board
	agent
	concluded
	that
	the 	elimination
	of
	CTA
	services
and
	resources 	did 	not
	change
	the
	fundamental
	structure
	of	
CCTA.
The
	Board
	agent
	also
	rejected
	CTA's
	argument
	that
	due
process 	considerations 	require 	denial
	of
	the
	amended
certification
	because 	only
	Association
	members
	were
	permitted 	to
vote
	in
	the
	disaffiliation
	election.
	The
	Board
	agent 	noted
	that
the
	United
	States
	Supreme
	Court
	in
	NLRB
	v.
	Financial
	Institution
Employees
	of
	America. 	Local
	1182
	(1986)
	475
	U.S.
	192
	[121
	LRRM
2741]
	recently
	overturned
	several
	previous 	decisions 	of
	the
	NLRB
which
	required
	a
	vote 	of 	the
	entire
	bargaining
	unit.
	Thus,
	the
Board
	agent 	concluded
	the 	decision 	to
	disaffiliate
	based 	on
	a
ratification
	election 	limited 	to
	members
	of 	the 	Association
	was
procedurally 	valid.
Finally, 	the
	Board
	agent 	denied
	CTA's
	request 	for
	a
	formal
hearing 	stating 	that
	no
	material 	factual 	matters
	were
	in 	dispute,
no
	credibility 	issues
	needed
	to
	be
	resolved,
	and
	the 	parties
submitted 	comprehensive
	briefs
	which 	thoroughly 	addressed 	the
issues 	in 	this 	case.
6

DISCUSSION
CTA
	reasserts
	each
	of 	the
	above
	arguments
	in
	its
	appeal
	and
further
	argues
	that
	the
	Board
	agent
	misstated 	the
	Supreme
	Court's
hQlding
	in 	Financial,
	supra.
	Nevertheless,
	two
	fundamental
issues
	are 	presented
	by
	the
	appeal.
	First,
	does
	PERB
	have
authority
	under
	PERB
	Regulation
	32761
	to
	amend
	the
	certification
of
	an
	exclusive 	bargaining
	representative 	to
	reflect
	its
disaffiliation
	from
	a
	state
	or 	national 	organization
	such
	as
CTA/NEA?
	Second,
	if
	PERB
	does 	have 	such
	authority,
	under 	what
conditions
	is
	an
	amendment
	of
	certification
	appropriate
	to
reflect
	the
	disaffiliation
	of
	a
	local
	from
	(or
	affiliation
	of
	a
local
	with)
	a
	state
	or 	national 	organization?
1 . 	PERB
	Authority
	under 	Regulation
	32761
PERB
	Regulation
	32761(a)
	provides,
	in 	pertinent
	part, 	that:
An
	employee
	organization
	may
	file
	. 	. 	a
request 	to
	reflect
	a
	change
	in
	its
	identity
in
	the 	event 	of
	a
	merger, 	amalgamation,
affiliation
	or
	transfer
	of
	jurisdiction
This
	regulation
	is
	derived
	from
	the 	Educational
	Employment
4
Relations
	Act
	(EERA)
	section
	3541.3(m) 	which
	describes 	the
powers 	and
	duties
	of 	the
	Board
	as 	follows:
To
	consider
	and
	decide 	issues 	relating
	to
rights, 	privileges,
	and
	duties 	of
	an 	employee
organization 	in 	the 	event 	of
	a
	merger,
amalgamation,
	or 	transfer
	of
	jurisdiction
between
	two
	or
	more 	employee
	organizations.
The
	fact 	that 	disaffiliation 	is
	not
	specifically
	mentioned
in
	PERB
	Regulations 	or
	EERA
	does 	not 	preclude 	the
	Board 	from
4EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the
	Government 	Code.
7

considering
	such 	changes
	under
	its
	amendment
	of
	certification
procedures. 	In
	Ventura
	Community
	College
	District,
	supra,
	PERB
Order
	No.
	Ad-130,
	the
	Board
	reviewed
	a
	request
	filed
	by
	the
Ca_
_lifornia
	League
	of 	City
	Employee
	Associations
	(CLOCEA)
	to
	amend
its
	certification
	to
	reflect 	disaffiliation
	with
	the 	Service
Employees
	International
	Union,
	AFL-CIO.
	Although
	CLOCEA's
petition
	was
	denied
	on
	factual
	grounds,
	the
	Board
	noted
	that
	it
arose
	under
	PERB
	Regulations
	32760
	through
	32763.
	Moreover,
	the
Board
	stated:
These
	rules
	are 	the
	PERB
	equivalent 	of
	the
amendment
	of
	certification
	provisions
	of
	the
National
	Labor
	Relations
	Act
	and
	regulations
promulgated
	thereunder.
2
We
	are 	thus
	guided
	by
	precedent
	of
	the
	National
Labor
	Relations
	Board
	(NLRB)
	and
	federal 	courts
regarding 	appro~riateness 	of
	amendment
	of
certification.
3	
[SJ
(.IQ..,_,
	pp.
	6-7.)
2
See
	Rules 	and
	Regulations
	and
Statements 	of 	Procedure,
	series
	8,
.
as
amended,
	of
	the 	National
	Labor
	Relations
Board,
	section
	101.17.
3
It
	is
	appropriate 	for 	the
	Board
	to
	be
guided
	by
	federal 	precedent
	when
	it
	is
applicable 	to 	the 	public 	sector 	issue
involved
	in
	a
	given 	case.
	Firefighters
Union. 	Local
	1186
	v.
	City
	of
	Vallejo
	(1974)
12
	Cal.3d
	608 	[116
	Cal.Rptr.
	507).
5
There
	is,
	however, 	one
	notable 	difference
	between
	the
NLRB's 	and
	PERB 1 s
	regulations 	in 	this 	area.
	Under
	NLRB
Regulations
	101.17 	and
	102.60(b), 	the
	employer 	may
	file
	a
petition 	to 	clarify 	or
	amend
	the
	certification
	of 	the 	exclusive
representative 	provided
	no
	question 	concerning 	representation
exists.
	The 	employer 	has 	no 	such
	authority 	under
	PERB
Regulations. 	Rather, 	under
	PERB
	Regulation
	32762
	the 	employer
may
	only
	file
	a
	responding 	statement 	to 	the 	employee
organization's 	request 	to
	amend
	certification.
8

In
	accord 	with
	this
	conclusion,
	numerous
	decisions
	of
	the
NLRB
	and
	federal
	courts
	have
	reviewed
	petitions
	to
	amend
certification
	in
	cases 	involving
	disaffiliation
	of
	a
	local
	from
	a
parent
	organization 	to
	reflect
	a
	change
	in
	the
	identity
	of
	the
exclusive 	representative
	and
	granted 	or
	denied
	those
	petitions
based
	upon
	the
	particular
	facts
	of
	each
	case.
	(See
	e.g.,
Canterbury
	Villa
	of 	Waterford,
	Inc.
	(1986)
	282
	NLRB
	462
	[125	
LRRM
1027);
	St.
	Vincent
	Hospital
	v.
	NLRB
	(10th
	Cir.
	1980)
	621
	F.2d
1054 	[104
	LRRM
	2288];
	J.
	Ray
	McDermott
	and
	Co.,
	Inc.
	v.
	NLRB
(5th 	Cir.
	1978)
	571
	F.2d
	850
	[98
	LRRM
	2191];
	Missouri
	Beef
Packers
,
	Inc
. 	( 1 9 6 9 ) 	17 5
	NL RB
	11 oo [ 7 1 L
RRM
	11 7 7 ] . )
Similarly, 	in
	Anaheim
	City
	School
	District, 	et
	al.,
	supra,
PERB
	Decision
	No.
	349,
	the
	Board
	reviewed 	whether
	its
jurisdiction
	under
	section
	3541.3(m)
	extended
	to 	issues 	of
affiliation
	despite 	the
	absence
	of
	any 	such
	reference
	in 	the
statute.
	Specifically,
	the
	Board
	stated:
[W]e
	do
	not 	find 	[the
	omission 	of
	the
	word
"affiliationtt
	from
	section
	3541.3(m)
	to
	be]
an 	impediment
	to
	our
	resolution
	of 	the 	issues
raised
	here.
(
,lg._,_
I	
pp
• 	3 - 4 , )
Thereafter, 	the
	Board
	concluded:
[T]he
	existence 	of 	subsection
	3541.3(m)
	makes
it
	clear 	that
	the 	Legislature 	did 	not 	intend
that 	decertification
	be
	the 	sole
	means 	by
which
	a
	change
	in 	representation
	can 	be
accomplished.
(,lg._,_,
	p.
	7.
)
Accordingly,
	we
	conclude
	that 	since 	the
	Board 	has
	indicated
its
	willingness 	to 	follow 	precedence 	established
	by
	the
	NLRB
	and
federal 	courts 	in 	this 	subject 	area, 	the 	absence 	of 	the 	word
9

"disaffiliation"
	from
	EERA
	section
	3541.3(m) 	and
	PERB
	Regulation
32761
	does
	not 	preclude
	it
	from
	considering
	such
	a
	change
	in
	the
identity
	of
	the 	exclusive
	representative
	under
	the
	amendment
	of
certification
	procedures.
2.
	Amendment
	of
	Certification
	to 	Reflect
	Disaffiliation
The
	general
	rule 	established
	by
	cases 	decided
	in
	the
	private
sector
	is 	that
	amendment
	of
	certification 	is
	appropriate
	to
reflect
	an
	affiliation
	[or
	disaffiliation]
	where
	there
	is
	no
change
	in
	the 	basic
	identity
	of
	the
	representative
	chosen
	by
	the
employees. 	(Ventura
	Community
	college
	District.
	supra,
	PERB
Order
	No.
	Ad-130.)
	Such
	an
	amendment
	is 	justified
	because
	the
change 	involved
	does
	not
	alter
	the
	essential 	identity
	of
	the
exclusive 	representative. 	(Ibid.)
	However,
	an
	amendment
	of
certification
	in
	cases 	of
	affiliation
	or
	disaffiliation 	is
	not
appropriate
	where, 	as
	a
	result
	of
	that
	change,
	a
	question
concerning 	the
	identity
	or
	authority
	of 	the 	representative
	is
created.
6
(Id.,
	pp.
	7-8.)
Decisions 	of 	the
	NLRB
	and
	the
	U.S. 	Supreme
	Court
	utilize
	a
two-prong
	analysis 	to
	determine
	if
	a
	question 	concerning
7
representation 	exists. 	First, 	is
	there 	"substantial 	continuity"
6
In 	accord 	with
	NLRB
	precedent,
	we
	define 	"question
concerning 	representation" 	as
	"sufficient
	doubt 	about
	the 	union's
continuing 	status
	as 	the 	legitimate 	representative 	of
	employees
in
	a
	particular 	unit
	{such]
	that
	a 	new
	election
	should
	be
conducted 	to 	determine 	employee
	sentiment." 	{Seattle-First
National
	Bank
	v.
	PLRB
	(1989)
	892
	F.2d 	792,
	797 	[133
	LRRM
	2193,
2197].)
7We
	note 	that 	the 	Court 	in
	Financi..a.l
	neither 	endorsed 	nor
rejected 	the 	two-prong
	substantial 	continuity
	and 	due
	process
analysis, 	but 	merely 	noted 	the
	NLRB's
	historical 	application 	of
10

of
	representation
	and
	identity
	between
	the 	pre-
	and
	post-
affiliated
	union?
	The
	focus
	of
	this
	inquiry
	is
	whether
	the
affiliation
8
substantially
	changed
	the 	Association.
	(.N..LRS.
	v.
Financial
	Institution
	Employees,
	supra,
	475
	U.S.
	192,
	199.)
Significant
	factors
	recognized
	by
	the
	NLRB
	include:
..
	continued
	leadership
	responsibilities
by
	the
	existing
	union
	officials;
	the
perpetuation
	of
	membership
	rights
	and
	duties,
such
	as
	eligibility
	for
	membership,
qualification
	to
	hold
	office,
	oversight
	of
executive 	council
	activity,
	the 	dues/fees
structure,
	authority 	to
	change
	provisions
	in
the
	governing
	documents,
	the
	frequency
	of
membership
	meetings,
	the 	continuation
	of 	the
manner
	in
	which
	contract 	negotiations,
administration,
	and
	grievance 	processing 	are
effectuated;
	and
	the 	preservation
	of 	the
certified
	union's 	physical
	facilities,
	books,
and
	assets.
	[
Fn.
	omitted.
)
(Western
	Commercial
	Transport. 	Inc.
	(1988)
	288
NLRB
	No.
	27,
	slip
	opn.
	p.
	11
	[127
	LRRM
	1313,
1316).)
A
	second
	consideration
	is
	whether
	Association
	members
	have
had 	an 	adequate
	opportunity 	to
	vote
	on
	the
	change.
	Generally,
the
	NLRB
	considers
	this
	"due
	process"
	portion
	of
	the 	analysis
the
	test.
	(See
	Financial, 	supra,
	475
	U.S. 	192, 	199,
	fn. 	6, 	and
200,
	fn. 	7.)
	We
	further
	note
	that
	the
	NLRB
	has
	continued
	after
Financial 	to 	consider 	both
	due
	process
	and
	continuity
	when
determining 	whether
	a
	question 	concerning
	representation
	arises,
but
	has 	placed
	emphasis
	on
	the
	latter.
	(May
	Department
	Stores
	v.
~	
(
7th 	Cir
. , 	1 9 9 0 ) 	8 9 7 	F . 2 d 	2 2 1 , 	2 2 6 , 	f n . 	6 	[ 1 3 3 	L
RRM
	2 7 4 5 ,
2748, 	fn.	
6).)
8
Although
	the
	term
	"affiliation" 	is
	used
	here, 	decisions 	of
the
	NLRB
	and
	PERB
	indicate 	this
	same
	inquiry
	is
	applicable 	to
disaffiliation
	cases.
	(
See 	J.	
Ray	
McDermott	
& Co. •	
Inc.
	v .
	.HL.R.a,
supra,
	571
	F.2d
	850;
	Canterbury Villa 	of 	Waterford, 	supra,
	282
NLRB
	462; 	Missouri 	Beef 	Packers.
	Inc., 	supra,
	175
	NLRB
	1100;	
.s.:t....
Vincent 	Hospital
	v. 	NLRB,
	supra,
	621
	F.2d 	1054; 	Ventura 	Community
College 	District, 	supra,
	PERB
	Order
	No.
	Ad-130; 	Anaheim 	City
School 	District, 	supra,
	PERB
	Decision
	No.
	349.)
11

satisfied
	if
	the
	election
	was
	conducted 	with 	adequate
	safeguards,
including 	notice
	of
	the
	election,
	an
	adequate
	opportunity
	for
members
	to 	discuss
	the
	election,
	and
	reasonable
	precautions
	to
maintain
	ballot
	secrecy.
	(NLRB
	v.
	Financial
	Institution
Employees,
	supra,
	475
	U.S. 	192,
	199.)
Substantial
	Continuity
CTA
	contends
	that 	substantial
	changes
	have
	occurred
	in
CCTA/CTA/NEA's
	identity
	as
	a
	result
	of
	disaffiliation.
	CTA
asserts 	that
	changes
	in
	the
	dues
	structure,
	access
	to
professional
	resources,
	bylaw
	changes,
	and
	loss
	of
	required
	due
process
	safeguards
	to
	members
	of 	the 	Association 	lead
	to 	the
conclusion
	independent
	CCTA
	is
	a
	new
	organization.
The 	Supreme
	Court
	held
	in 	Financial,
	supra,
	that
	changes
resulting
	from
	an
	affiliation
	must 	be
	11
sufficiently
	dramatic
	to
alter
	the
	union's
	identity."
	(~,
	p. 	206.)
	We
	agree 	with
	the
Board
	agent's
	determination
	that
	the
	changes
	in
	this
	case
	did 	not
meet
	that
	test.
	Moreover,
	a
	critical
	factor 	in
	determining
whether
	there
	has 	been
	a
	change
	in 	identity
	of 	the 	exclusive
representative 	is
	to
	examine
	the 	organization's
	day-to-day
interaction
	with
	management. 	Thus,
	in
	American
	Bridge
	Division,
U.S.
	Steel
	Corp. 	v.	
N1.B.a	
(3rd 	Cir.
	1972) 	457
	F.2d
	660
	[79
	LRRM
2877]
	the 	court 	denied 	an
	amended
	certification
	because,
	after
affiliation:
.
	the 	people
	who
	conduct
	a
	substantial
part
	of 	the
	unit's
	dealings 	with
	management
are
	no
	longer 	the 	association's 	officers,
	and
the
	power
	of 	the 	unit's
	members
	to 	control
those 	aaents 	has
	radically
	changed.
(Id.,
	p. 	663, 	emphasis 	added.)
12

Similarly,
	in 	Retail
	Store
	Employees
	Union,
	Local
	428
	v.
	NLRB
(9th
	Cir.
	1975)
	528
	F.2d
	1225
	[91
	LRRM
	2001)
	the 	court 	refused
	to
amend
	a
	certification
	to
	reflect
	a
	merger
	of
	a
	local 	association
with
	an
	international
	because:
.
	the
	officers
	did
	not
	remain
	the
	same.
While
	the
	old
	local
	officers
	did
	participate
in
	communications
	with
	management
	in
	seeking
negotiations,
	none
	participated
	in 	the
	actual
negotiations.
	This
	leadership
	change
suggests
	an
	absence
	of
	continuity
where
	it
counts.
	in
	a
	bargaining
	relation
(Id.,
	p.
	1228,
	emphasis
	added.)
Following
	this
	same
	reasoning, 	the
	California
	Court
	of
Appeal
	stated 	in
	North
	San 	Diego 	County
	Transit
	Development	
Board
v.
	Vial
	(1981)
	117
	Cal.App.3d
	27
	[172
	Cal.Rptr.
	440],
	that
	it
	is
not 	only
	the
	contract
	and
	local 	officers
	and 	employees
	that
	must
be
	the
	same,
	"the
	rights
	of 	the
	parties
	must 	be
	the
	same."
p.
	33.)
	Thus,
	when
	evaluating 	the
	identity
	of
	an
	organization
after
	a
	change
	in
	affiliation,
	case
	law
	reveals
	that
	the
	NLRB
does
	not 	run
	down 	a
	checklist
	of
	cited
	criteria;
	instead,
	it
considers 	"the
	totality
	of
	a
	situation.
11
	(News/Sun
	Sentinel
	Co.
v.
	NLRB
	(D.C.
	Cir.
	1989) 	890
	F.2d
	430,
	432
	[132
	LRRM
	2988,
	2990];
Yates
	Industries.,
	Inc.
	(1982)
	264
	NLRB
	1237,
	1250 	[112
	LRRM
1231];
	May
	Department
	Stores
	v.
	NLRB,
	supra,
	897
	F.2d 	221,
	228.)
Factors 	considered
	significant,
	however,
	include 	those 	bearing
	on
the 	originally 	certified 	association's 	interaction
	with
management 	and
	the
	ability
	of 	the 	local
	members
	to 	continue 	to
affect
	and
	control 	the 	actions 	of 	the 	officers 	elected 	to
represent 	their 	interests.
	(See, 	e.g.
	May
	Department 	Stores 	v.
13

NLRB,
	supra,
	897
	F.2d
	221; 	News/Sun
	Sentinel	
co,	
v.
	NLRB,
	supra,
890
	F.2d
	430;
	J.
	Ray
	McDermott
	and
	Co.,
	Inc.
	v.
	NLRB,
	supra,
	571
F.2d 	850.)
These
	factors
	are
	satisfied
	in
	this
	case.
	The
	Board
	agent
found
	there
	has
	been
	no
	change
	in
	CCTA's
	officers
	since
	its
disaffiliation,
	and
	the 	individual
	who
	has
	historically
negotiated
	with 	the
	District
	on
	behalf
	of
	CCTA
	remains
	the
	same.
The
	Board
	agent
	also
	concluded
	that
	CTA
	has
	had
	no
	direct
	contact
with
	District
	management
	in 	negotiations
	and
	only 	very
	minimal
involvement
	in
	administration/enforcement
	of
	the 	contract
	(i.e.,
provided 	advice
	on 	two
	occasions
	to
	CCTA
	officers
	concerning
	a
pending 	grievance
	and
	offered
	its
	research
	facilities).
	Further,
there
	are
	no
	facts 	to 	indicate
	CCTA's
	interaction
	with
	management
has 	been
	altered
	as
	a
	result
	of
	the
	disaffiliation;
	nor
	is
	there
evidence
	that
	the
	ability
	of
	local
	members
	to 	control 	the 	actions
of
	their
	elected 	representatives
	has 	changed. 	Thus,
	we
	find
there 	is
	a
	substantial 	continuity
	of
	representation
	because,
	in
this
	case,
	CCTA
	is
	the
	same
	organization
	as
	it
	was 	when
	it
	was
affiliated
	with
	CTA/NEA.
We
	also 	agree 	with 	the
	Board
	agent's 	determination
	that
	the
changes
	in 	the
	dues
	structure, 	deletion
	of 	the
	affiliation
article
	from
	CCTA's
	Constitution,
	and
	the 	loss 	of
	CTA
	services
and
	resources
	do
	not
	raise
	a
	question 	of 	representation 	since
they
	were 	not
	sufficiently
	dramatic
	to 	alter
	the 	Association
1 s
identity.
	(NLRB
	v.
	Financial 	Institution
	Employees, 	~W..Il,
14

475
	U.S. 	192, 	206;
	May
	Department
	Stores,
	supra,
	897
	F.2d
	221,
228;
	Western
	Commercial
	Transport, 	supra,
	288
	NLRB
	27,
	slip
	opn.
pp.
	6-13.)
	As 	a
	result,
	CCTA,
	in
	its
	disaffiliated 	status,
inheres 	to
	all
	the
	rights,
	obligations
	and
	duties
	it
	had
	while
affiliated
	with
	CTA
	and
	NEA.
	(St.
	Vincent
	Hospital
	v.
	NLRB,
supra,
	621
	F.2d
	1054;
	National
	ca~bon
	Company
	(1956)
	116
	NLRB
488, 	504,
	fn.
	16
	(38
	LRRM
	1284)
.)
	We
	note
	further
	that 	certain
changes.due
	to
	an
	association's
	affiliation
	or
	disaffiliation
with 	another 	organization,
	such 	as
	those 	occurring
	in
	this
	case,
are 	inherent 	in
	the 	reorganization
	and
	should 	not
	be
	accorded
significant
	weight
	in
	deciding 	the 	question
	of
	continuity.
(Seattle-First
	National
	Bank
	v.
	NLRB,
	supra,
	892
	F.2d
	792,
	798.)
Due
	Process
CTA
	does
	not 	contend
	that
	the 	decision 	to
	disaffiliate
	was
made
	without
	an
	opportunity 	for
	CCTA
	members
	to 	discuss 	the
issue,
	nor
	does
	it
	contend
	the
	election
	was
	held 	without 	adequate
notice.
	Rather,
	CTA
	argues
	that
	the 	decision
	must
	reliably
indicate 	that
	a
	majority 	of 	the
	members
	of 	the 	bargaining
	unit,
as 	opposed
	to
	a
	majority 	of
	CCTA
	members,
	support 	the
	new
organization
	as
	its
	exclusive 	representative.
	CTA
	also 	argues
the
	Board
	agent
	failed 	to 	consider
	that
	no 	more
	than
	75
	employees
out 	of
	a
	bargaining
	unit
	of
	640 	members
	participated 	in 	the
decision 	to
	disaffiliate.
	This
	error,
	according 	to
	CTA,
	ignores
the 	principles
	announced 	by 	the
	Board
	in
	Ventura 	Community
College
	District,
	supra,
	PERB
	Order
	No.
	Ad-130, 	which,
	in
	its
view,
	establish 	that 	the 	exclusive 	representation 	of 	employees
	is
15

founded
	upon
	the
	"majority
	view"
	of
	unit
	employees.
	CTA
	asserts
that 	this
	notion
	of
	majority
	view
	is
	deeply
	embedded
	in
	EERA. 9
CTA,
	quoting
	from
	Ventura,
	then 	urges
	the
	Board
	to
	adopt
	a
flexible
	test
	to
	determine 	whether
	due
	process
	has 	been
	satisfied
that
	considers
	"whether
	and
	in
	what
	form
	the
	employees
	[not
merely
	members]
	have
	expressed
	their
	approval 	of 	the
	change
	in
form.
11	
(Id.,
	p.
	9.)
	Thus,
	in
	cases
	where
	a
	majority 	of
	the
bargaining
	unit
	had
	an
	opportunity
	to
	participate
	in
	the
decision,
	PERB
	could
	find
	that
	the 	union's
	internal 	decision
reflected
	the 	"majority
	view."
	However,
	where,
	as
	here,
	the
balloting
	is 	restricted
	to 	less
	than
	twelve
	percent 	of
	bargaining
unit
	employees,
	the
	Board
	could
	find
	that
	the 	decision
	does
	not
reflect
	the 	"majority
	view."
	CTA
	further
	contends
	that 	the
	Board
agent 	misstated 	the
	Supreme
	Court's
	holding
	in
	NLRB
	v.
	Financial
Institution
	Employees,
	supra,
	475
	U.S. 	192, 	by
	interpreting
	it
	as
precluding
	PERB
	from
	ever 	considering
	whether
	the
	number
	of
employees
	voting
	"was
	so
	small 	as
	to 	render 	the 	decision
	an
unreliable
	gauge
	of 	the 	majority
	view."
	Finally,
	CTA
	argues
	that
the
	Board
	agent
	failed 	to 	consider 	case
	law
	indicating
	that
	the
NLRB
	will
	deny
	certification
	amendments 	where
	the 	election
procedures 	used
	to 	indicate 	the 	majority
	view
	are 	unreliable.
9CTA,
	in 	support 	of
	this
	argument,
	cites
	language 	contained
in 	sections
	3544(a) ("a 	majority 	of
	employees
	in 	the 	appropriate
unit," 	"majority 	support"); 	3544(b) 	("majority 	support,"
"majority 	support"); 	3544.3 	("majority 	support"); 	3544.7(a)
("majority 	of 	the 	valid 	votes 	cast," 	"majority 	of 	the 	votes
cast"). 
16

Notwithstanding
	CTA's
	argument
	to 	the
	contrary, 	the
principles
	underlying
	the
	Board's
	decision
	in
	Ventura,
	supra,
PERB
	Order
	No.
	Ad-130,
	do
	not
	imply
	the
	entire
	bargaining
	unit
	is
entitled
	to
	participate
	in
	the 	decision 	to
	modify
	the
organization's
	affiliation.
	Addressing
	that
	specific
	issue,
	the
Board
	in 	California 	State
	Employees'
	Association
	(Norgard) 	(1984)
PERB
	Decision
	No.
	451-S
	stated:
We
	have
	yet 	to 	consider
	whether
	a
	vote 	of
	the
membership 	would 	be
	required 	to
	comply
	with
the
	adequate
	due
	process 	standard
	for
	a
certification
	change
	as
	set
	forth 	in
	Ventura,
supra.
(Id.,
	p.
	8.)
In 	accord 	with 	our
	discussion
	below,
	that
	question
	is
	now
answered.
Moreover,
	to
	the 	extent
	that
	Ventura, 	supra,
	and
	its
	progeny
can 	be
	construed
	as
	establishing
	a
	voting 	requirement
inconsistent
	with
	Financial,
	supra,
	and
	our
	analysis 	in
	this
decision,
	the 	decision
	is
	overruled.
	Specifically,
	we
	refer
	to
Ventura's
	apparent 	adoption 	of 	the
	language 	appearing
	in
	North
San 	Diego 	County
	Transit
	Development 	Board 	v.
	Vial,
	supra,
	117
Cal.App.3d
	27
	that
	before
	an
	amended
	certification will 	issue
	it
must,
	in 	part,
	be
	demonstrated:
(3)
	the
	employees
	are
	shown
	to
	be
	able 	to
fully
	and
	democratically 	consider
	and
	vote
	on
affiliation,
	i.e.,
	in
	accordance 	with
	due
process.(Ventura. 	supra, 	p. 	9, 	emphasis 	added.)
The
	court 	in
	North 	San 	Diego
	relied
	on American 	Bridge 	Division,
U.S.
	Steel
	Corp. 	v.
	NL.B.a,
	supra,
	457
	F.2d
	660
	as
	its 	authority
for 	this 	portion 	of 	the 	test.
	A
review 	of 	American 	Bridge,
17

supra,
	reveals,
	however,
	there
	is
	an
	important
	difference
	in
	the
NLRB's
	test
	from
	that
	quoted
	by
	the
	North
	San 	Diego
	court.
	In
American
	Bridge,
	the
	Third
	Circuit
	Court
	of
	Appeals
	noted
	that
under
	NLRB
	law
	no
	question
	concerning
	representation
	is
	presented
where:
(3)
	the
	members
	of 	the
	union
	...
	are
given
	an
	opportunity
	to
	consider
	and
	vote
	on
the 	question 	of
	affiliation
	through
	a
democratic
	process
	and
	in
	accordance
	with
	the
union's
	constitution
	and
	by-laws.
(Id.,
	p.
	663,
	emphasis
	added.)•
North
	San 	Diego,
	in 	contrast, 	substituted
	the
	word
	"employees"
for 	the
	phrase
	"members
	of
	the 	union."
	The
	differing
characterizations
	of 	the
	NLRB
	test
	by
	the
	two
	courts
	is
	highly
significant
	because 	they
	describe
	different
	groups
	of
	employees
entitled
	to 	vote
	in
	the
	election.
	Whether
	the
	North
	San
	Diego
court's
	modification
	was
	inadvertent 	or
	by
	design
	is
	of
	no
	import
because, 	in
	light
	of 	the
	Supreme
	Court's 	decision 	in 	Financial,
supra,
	and
	subsequent
	decisions 	of 	the
	NLRB,
	it
	is 	clear
	that
under
	NLRB
	law
	the 	Association
	has
	the
	right 	to 	limit
	the 	voting
on
	internal
	organizational
	changes
	to
	its
	members
	only. 	Thus,
the
	Board
	agent 	did 	not 	ignore 	the 	principles
	announced
	in
V§n.tm 	but, 	rather, 	interpreted
	them
	consistent
	with 	the
analysis 	in 	Financial.
Also 	without 	merit
	is
	CTA's
	contention
	that 	the
	Board
	agent
misstated 	the 	holding 	in 	Financial, 	supra.
	The 	Board
	agent 	did
not 	conclude, 	as 	contended
	by 	CTA,
	that
	PERB 	may
	never 	consider
whether 	the
	number
	of 	employees 	voting
	was 	so 	small 	as 	to 	render
18

the 	decision
	an
	unreliable 	indicator
	of 	the 	majority
	view.
Rather,
	she
	stated:
CTA's
	argument
	that
	all
	bargaining
	unit
members
	should
	have
	been
	afforded 	the
opportunity
	to
	vote
	in
	the
	disaffiliation
elections
	is
	without 	merit
	in
	light
	of	
N1..B.E.
v.
	Financial,
	supra.
A
	careful
	reading 	of
	Financial 	reveals 	the
	Board
	agent's
conclusion
	is
	consistent
	with
	the 	Court's
	holding.
In 	Financial,
	the
	Supreme
	Court
	overturned
	several
	prior
decisions
	of
	the
	NLRB
	which 	had
	required
	that
	all
	members
	of 	the
bargaining
	unit
	be
	given
	an
	opportunity 	to
	vote
	on
	the
association's
	decision 	to 	reorganize.
	Specifically,
	the 	Court
stated:
[The
	NLRB)
	exceeded
	its
	statutory 	authority
by
	requiring
	that
	nonunion 	employees 	be
allowed
	to
	vote
	in
	the 	union's
	affiliation
election.
	This
	violated 	the 	policy
	Congress
incorporated
	into
	the
	Act
	against 	outside
interference 	in
	union 	decision-making.
While
	the
	Board
	is
	charged 	with
responsibility 	to 	administer
	...
	[the
amendment
	of
	certification)
	procedure, 	the
Act
	gives 	the
	Board
	no
	authority 	to 	require
unions
	to
	follow
	other 	procedures
	in 	adopting
organizational
	changes.
(Id.,
	p.
	204, 	emphasis 	added.)
The
	Court 	also 	stated:
Under
	the 	Act,
	dissatisfied
	employees
	may
petition 	the
	Board
	to 	hold
	a
	representation
election, 	but 	the
	Board 	has
	no
	authority 	to
conduct 	an
	election 	unless 	the 	effects
complained 	of 	raise
	a
	question 	of
representation. 	In 	any 	event,
dissatisfaction 	with 	representation 	is 	not
	a
reason 	for 	requiring 	the 	union 	to 	allow
nonunion 	employees 	to 	vote 	on 	union 	matters
19

like
	affiliation.
	Rather,
	the
	Act
	allows
union
	members
	to 	control
	the
	shape
	and
direction
	of'
their
	organization,
	and
tt[n)on-union
	employees 	have
	no
	voice
	in
	the
affairs
	of
	the 	union."
	[Citation.]
	We
repeat,
	dissatisfaction
	with
	the 	decisions
union
	members
	make
	may
	be
	tested
	by
	a
	Board-
conducted
	representation 	election
	only
	if
	it
is
	unclear
	whether
	the
	reorganized
	union
retains
	majority 	support.
(JJ;L_,
	p.
	205,
	emphasis
	added.)
PERB
	has
	similarly
	recognized
	that
	interference 	in
	internal
union
	affairs 	is
	beyond
	the
	legislative 	intent
	underlying
	EERA.
Specifically, 	in
	Service
	Employees
	International
	Union.
	Local
	99
(Kimmett) 	(1979)
	PERB
	Decision
	No.
	106,
	the
	Board
	stated:
The
	EERA
	does
	not
	describe 	the
	internal
workings
	or
	structure
	of
	employee
organizations
	nor
	does
	it
	define 	the
	internal
rights
	of 	organization
	members.
	We
	cannot
believe
	...
	the
	Legislature
	intended
	this
Board
	to 	create
	a
	regulatory
	set
	of 	standards
governing
	the 	solely 	internal 	relationship
between
	a
	union
	and
	its
	members.
(Id.,
	p. 	16.)
Thus,
	since 	in 	the
	instant
	case
	no
	question 	concerning
representation 	exists,
	and
	since
	CCTA
	was
	within
	its
	rights
	as
	an
employee
	organization 	in 	limiting 	the
	vote
	to
	its
	members,
	the
Board
	agent
	correctly
	determined
	that
	CCTA 1 s	
decision 	to
disaffiliate
	need
	not
	be
	submitted
	to
	a
	vote 	of
	all
	members
	of
the 	bargaining 	unit.
Finally,
	CTA's
	argument
	that 	the
	NLRB
	will
	deny
	petitions 	to
amend
	certification
	where
	the 	election 	results
	do
	not
	reliably
reflect
	the 	majority
	view
	is 	rejected.
	The
	Seventh
	Circuit
	Court
of 	Appeals, 	in
	May
	Department 	Stores
	v. 	NLRB,
	supra,
	897
	F.2d
2.21,
	stated:
20

It
	has 	been
	and
	continues
	to
	be
	well
established
	that
	post-merger 	or
	post-
affiliation
	unions
	need
	not
	show,
	as
	a
precondition 	to
	their
	recognition,
	that
	a
majority
	of
	employees
	in
	a
	particular
employer
	unit
	voted
	in
	favor 	of 	the
	change.
(Id.,
	p.
	226.)
In
	addition,
	the
	Court
	in
	Financial
	Institution
	Employees.
	supra.
475
	U.S.
	192
	stated
	that
	in
	order
	to
	raise
	a
	question 	of
representation
	it
	must 	be
	demonstrated:
.
	by
	objective 	considerations
	that
	.
some
	reasonable
	grounds
	[exist]
	for 	believing
that
	the
	union 	has
	lost
	its
	majority
	status.
(Id.,
	p. 	198.)
Similarly,
	the
	NLRB
	in
	Western
	Commercial
	Transport, 	supra,
stated:
In 	determining 	whether
	a
	"question
	concerning
representationtt
	exists
	because
	of 	lack 	of
continuity, 	the
	Board
	is
	not
	directly
inguiring 	into
	whether
	there
	is
	majority
support 	for 	the 	labor 	organization
	after
	the
changes
	at
	issue,
	but
	rather 	is
	seeking
	to
determine 	whether
	the
	changes
	are
	so
	great
that
	a 	new
	organization
	has
	come
	into
being---one
	that
	should
	be
	required 	to
establish
	its
	status
	as
	a
	bargaining
representative
	through
	the
	same 	means
	that
any
	labor 	organization
	is
	required 	to
	use
	inthe
	first
	instance.
(Western 	Commercial
	Transport, 	supra,
	288
NLRB
	27,
	slip
	opn. 	pp. 	10-11, 	emphasis
added.)
In 	the 	present 	case,
	CTA
	has
	identified
	no
	facts 	that
indicate
	CCTA's
	decision 	to
	disaffiliate
	does
	not
	reflect 	the
majority
	view,
	other 	than
	its
	statement 	concerning 	the 	size 	of
the 	bargaining 	unit
	compared
	to 	the
	number
	of
	members
	of 	the
Association 	voting 	in 	the 	election.
	Moreover,
	we
	agree 	with 	the
approach 	taken
	by
	the
	NLRB
	in 	Western, 	supra, 	that 	our 	inquiry 	is
21

to
	focus
	on
	whether
	a
	"question
	concerning
	representation
	exists
because 	of
	a
	lack
	of
	continuity"
	and
	not
	into
	whether
	there
	is
majority
	support
	for
	the
	change.
Accordingly,
	we
	find
	no
	grounds
	to
	deny
	CCTA's
	petition
	to
amend
	certification
	for
	failure
	to
	observe
	due
	process.
Opposition 	of
	Originally
	Certified
	Union
CTA
	also
	contends
	that
	the
	amended
	certification
	should
	be
denied
	based
	on
	the 	opposition 	of
	the
	originally
	certified
	union,
CCTA/CTA/NEA,
	which
	it
	purports
	to 	represent.
	According
	to
	CTA
there 	exists 	in
	this
	case:
the
	rivalry
	or
	hostility
	that
	characterizes
the
	relationship
	between 	an 	incumbent
	and 	an
organization
	seeking
	decertification.
which
	the
	ACT's 	[EERA's]
	time
	bars 	are
designed
	to 	prevent.
	[Citation.]
CTA's
	argument
	that
	consent 	of 	the
	originally
	certified
organization
	is
	required
	in
	disaffiliation
	cases 	appears
	to
	be
based, 	in
	part,
	on
	the 	Board's
	decision 	in
	Ventura
	Community
College
	District,
	supra,
	PERB
	Order
	No.
	Ad-130.
	In 	Ventura,
	the
Board 	quoted
	from
	North
	San 	Diego 	County
	Transit
	Development
Board
	v.
	Vial, 	supra,
	117
	Cal.App.3d 	27, 	33-34,
	the 	following
three-part
	analysis
	as 	requirements 	of 	the
	NLRB
	and
	federal
courts 	for
	amending
	certification:
(1)
	there
	must 	be
	acceptance
	by
	the
original 	certified
	union,
	(2)
	the 	bargaining
unit
	must
	remain
	substantially 	the
	same,
i.e.,
	there 	is 	continuity 	of 	bargaining
representatives,
	and 	(3)
	the
	employees
	are
shown
	to
	be
	able 	to 	fully
	and
	democratically
consider
	and
	vote
	on
	affiliation, 	i.e.,
	in
accordance 	with
	due
	process.
(Ventura, 	supra, 	pp. 	8-9.)
22

While
	we
	believe
	this
	analysis
	is,
	in
	part,
	consistent
	with
the
	Supreme
	Court
1 s
	decision
	in 	Financial,
	supra,
	and
	subsequent
decisions
	of 	the
	NLRB, 	we
	disapprove 	of
	Ventura
1 s
	apparent
characterization
	of
	"acceptance
	by
	the
	original
	certified
	union"
as
	a
	third
	prong.
10
The
	appropriate
	test
	for
	determining
	whether
	a
	question
concerning
	representation
	exits
	in
	a
	case 	of
	affiliation
	or
disaffiliation
	is
	the
	NLRB's
	traditional
	"substantial 	continuity"
and 	"due
	process"
	analysis.
	In 	the
	instant
	case,
	CCTA,
	as
	the
local
	organization,
	is
	recognized 	as
	the 	exclusive
representative;
	CTA
	and
	NEA
	are
	merely
	affiliates
	of 	the
	local
and,
	in
	accord 	with
	prior
	decisions 	of 	the
	Board,
	clearly
	not 	the
exclusive 	representative.
	(Fresno 	Unified
	School
	District
	(1982)
PERB
	Decision
	No.
	208;
	Link 	v.
	California
	Teachers
	Association
and
	National
	Education
	Association
	(1981)
	PERB
	Order
	No.
	Ad-123;
Washington
	Unified
	School
	District
	(1985)
	PERE
	Decision
	No.
	549;
California
	Teachers
	Association
	(Abbot) 	(1988)
	PERB
	Decision
No.
	665.)
	Further, 	decisions 	of 	the
	NLRB
	and
	federal 	courts
indicate
	it
	is
	the 	consent 	of
	the 	exclusive 	representative
(original 	certified
	union)
	that 	is
	required 	to 	effect
	an
10
whether 	Ventura
	actually
	holds
	that
	"acceptance
	by
	the
original 	certified
	union"
	is
	a
	requirement
	for
	an
	amended
certification 	is
	open
	to 	question.
	The
	Board
	in
	Ventura 	merely
recited,
	but 	never 	explained 	or 	applied 	the 	analysis 	to 	the 	facts
before
	it,
	the 	requirement 	of 	"acceptance
	by
	the 	original
certified
	union." 	Similarly, 	in 	California
	state 	Employees'
Association
	(Norgard) 	(1984)
	PERB
	Decision
	No.
	451-S
	the 	Board,
citing
	Ventura,
	laid 	out 	the 	three-part 	analysis 	quoted.above,
but 	did 	not 	discuss 	or 	apply 	"acceptance 	of 	the 	certified 	union."
Thus, 	the 	Board's 	references 	to 	the 	"acceptance
	by
	the 	original
certified
	union" 	as
	a
	requirement
	may
	constitute
	mere
	dicta.
23

organizational
	change 	such
	as
	affiliation
11
or
	disaffiliation.
(See
	e.g.,
	Missouri
	Beef
	Packers.
	Inc.,
	supra,
	175
	NLRB
	1100;
Hamilton
	Tool
	Company
	(1971)
	190
	NLRB
	571
	[77
	LRRM
	1257]; 	North
Electric
	Company
	(1967)
	165
	NLRB
	942
	[65
	LRRM
	1379);
	Bedford
	Gear
&	
Machine
	Products, 	Inc.
	(1964)
	150
	NLRB
	1
	[58
	LRRM
	1069).)
	The
cases 	also 	reveal
	that 	identification
	of
	the
	entity
	purporting 	to
be
	the 	original
	certified
	union
	is
	not
	always
	clear.
	As 	a
result,
	the
	NLRB
	conducts
	an
	investigation 	to
	determine
	if
	the
entity
	requesting 	the
	amended
	certification 	is 	substantially
	the
same
	organization
	as
	the
	one
	originally
	certified
	as
	the
exclusive 	representative.
	If
	the 	investigation 	reveals 	they 	are
not
	the
	same
	organization
	and
	the
	originally
	certified
	union
opposes
	the
	change,
	a
	q~estion
	concerning
	representation
	is
created
	and
	the
	amended
	certification 	is
	denied. 	In
	this
	case,
however,
	the
	Board
	agent 	determined
	that
	CCTA/CTA/NEA
	is
	the
	same
organization
	as 	independent
	CCTA
	in
	its
	disaffiliated 	status,
thereby 	satisfying 	substantial 	continuity
	of
	bargaining
representative,
	and
	that
	CCTA
	observed 	adequate
	due
	process
procedures 	in 	arriving 	at
	its
	decision 	to
	disaffiliate.
	Thus,
since
	CCTA
	is
	the
	same
	organization
	as
	CCTA/CTA/NEA,
	and
	CCTA
requested 	the
	amended
	certification,
	it
	is 	clear 	there
	has 	been
acceptance
	by
	the 	original 	certified
	union.
	Additionally, 	there
is
	no
	evidence
	in 	this
	case 	of 	the 	"the
	rivalry 	or
	hostility 	that
11
With
	respect 	to 	affiliation,
	we
	note
	that
	PERB
	has 	held
	it
does 	not
	have 	the
	power
	to
	compel 	an 	unwilling
	state 	or 	national
employee 	organization 	to 	accept 	the 	affiliation
	of
	a
	local
exclusive 	representative.
	(Poway
	Unified 	School
	District
	(1982)
PERB
	Order
	No.
	Ad-127.)
24

characterizes
	the
	relationship
	between 	an
	incumbent
	and
	an
organization
	seeking
	decertification."
	No
	facts
	have
	been
alleged 	to
	show
	the
	existence
	of
	a
	fierce 	division
	between
	CCTA's
officers
	or
	membership,
	CCTA
	continues
	to 	administer
	and
	enforce
the 	contract
	as
	before, 	the
	same
	individuals
	continue
	to 	deal
with
	the
	district
	in
	matters
	of
	contract 	negotiations,
	and
	no
allegations
	of
	election
	irregularities
	have 	been
	filed.
	Thus,
CTA's
	contention
	that
	the
	amended
	certification
	should
	be
	denied
because
	there
	is
	opposition
	from
	the
	originally
	certified
	union
is
	rejected.
3 .	
Reguest
	for
	Formal
	Hearing
CTA
	requests
	a
	formal
	hearing
	"on
	the 	various
	issues
presented 	herein."
	PERB
	Regulation
	32763
	provides, 	in
	pertinent
part,
	as 	follows:
(a)
	Upon
	receipt
	of
	a
	request
	filed
	pursuant
to 	section
	32761,
	the
	Board
	shall
	conduct
such
	inquiries
	and
	investigations 	or
	hold
such
	hearings 	as
	deemed
	necessary
	in 	order 	to
decide 	the 	guestions 	raised
	by
	the 	reguest.
(Emphasis
	added.)
Thus,
	the
	Board 	has
	discretionary 	authority 	to
	conduct
	hearings
which
	it
	deems
	necessary 	to 	resolve 	questions 	raised
	by
	the
parties.
	As 	a
	general
	rule,
	such
	hearings 	are
	conducted
	to
gather 	factual
	evidence
	and
	to
	determine 	the
	credibility 	of
witnesses.
	Although
	CTA
	disputes 	the
	Board
	agent's 	det'ermination
that
	CCTA
	is 	the
	same
	organization 	as 	the 	originally 	certified
representative,
	CTA
	alleges
	no
	facts 	in 	support 	of
	its
contention.
	CTA
	does 	not 	dispute 	that 	the
	same
	officers
	and
bargaining 	representatives 	continue 	in 	their 	positions 	with
	CCTA
25

after
	its
	disaffiliation.
	Nor
	does
	CTA
	dispute
	that
	CCTA
	has
	not
modified
	any
	articles
	or
	bylaws
	to
	its
	Constitution, 	other
	than
Article
	III
	governing
	affiliations.
	Finally,
	CTA
	does
	not
dispute
	the
	factual 	allegations
	by
	CCTA
	that
	its
	decision
	to
disaffiliate
	was
	conducted
	by
	secret 	ballot
	election
	after
adequate
	notice
	was
	given
	to,
	and
	discussions
	conducted
	by,
members
	of 	the 	Association.
	The
	only
	questions
	raised
	by
	CTA
	in
this
	case
	concern
	legal 	issues
	which
	both
	parties 	fully
	addressed
in
	their
	briefs.
	Thus,
	we
	agree 	with
	the
	Board
	agent's
conclusions
	and 	do
	not
	find
	a
	hearing
	is
	necessary
	to 	resolve
	any
of
	the 	issues 	raised 	in
	this
	case.
CONCLUSION
We
	conclude
	the
	Board
	agent
	correctly
	determined
	that:
	(1)
the
	changes
	resulting
	from
	the
	disaffiliation
	with
	CTA
	were
	not
sufficiently
	dramatic
	to
	alter
	the
	local 	organization's
	identity;
and 	(2)
	the
	disaffiliation
	election
	was
	conducted
	with 	adequate
due
	process 	safeguards
	in
	accordance 	with 	the
	organization's
Constitution.
12
ORDER
Upon
	the 	foregoing 	decision
	and
	the
	entire
	record
	in
	this
matter, 	the
	Board
	hereby
	GRANTS
	the 	Association's
	petition 	for
	an
12
we 	do
	not 	address 	here 	the 	issue 	of 	the 	effective 	date 	of
the 	disaffiliation
	as 	the 	issue
	was
	fully 	briefed
	and
	is
addressed 	in 	the 	case 	of
	San 	Jose-Evergreen
	Community
	College
District
	(1990) 	PERB
	Order
	No. 	Ad-
__
	(SF-AC-23).
26

amended
	certification
	and
	DENIES
	the 	request
	by
	CTA
	for
	a
	formal
hearing.
Chairperson
	Hesse
	joined
	in
	this
	Decision.
Member
	Shank's 	concurrence 	begins
	on
	page
	28.
27

Shank,
	Member,
	concurring:
	While
	I
	do
	not
	disagree 	with 	the
result
	reached
	by
	the 	majority,
	I
	write 	separately 	to
	address
more
	fully
	CTA's
	argument
	that:
	(1)
	both
	PERB
	and
	NLRB
	case
	law
establish 	that
	an
	amendment
	to
	certification
	reflecting
	a
disaffiliation
	cannot
	be
	granted
	if
	the
	original
	certified
	union
opposes
	the
	disaffiliationi
	(2)
	CTA
	is
	the
	original
	certified
union;
	and,
	therefore,
	(3)
	since
	CTA
	opposes
	the
	amendment
	to
certification,
	the
	amendment
	should
	be
	denied.
	As
	explained
	more
fully
	below,
	I
	would
	find
	that
	law
	does
	establish 	that
	an
amendment
	to
	certification 	reflecting
	a
	disaffiliation
	cannot
	be
granted
	if
	the
	original
	certified
	union 	opposes
	the
disaffiliation.
	I
	would
	also 	find,
	however,
	that
	as
	CTA
	is
	not
the
	original
	certified
	union
	in 	this
	case,
	its
	opposition
	to
	the
disaffiliation
	is
	not
	controlling.
CTA
	relies
	on
	that
	portion
	of
	Ventura
	Community
	College
District
	(1982)
	PERB
	Order
	No.
	Ad-130,
	that
	quotes
	North
San 	Diego 	County
	Transit
	Development 	Board 	v.
	Vial
	(1981)
	117
Cal.App.3d
	27,
	as
	establishing
	the
	test
	to
	be
	applied
	in
amendment
	of
	certification
	cases:
(1)
	there
	must 	be
	acceptance
	by
	the
	original
certified
	union,
	(2)
	the 	bargaining
	unit
	must
remain
	substantially
	the
	same,
	i.e.,
	there
	is
continuity 	of 	bargaining 	representatives,
	and(3)
	the
	employees
	are
	shown
	to
	be
	able 	to
fully
	and
	democratically 	consider
	and
	vote
	on
affiliation, 	i.e.,
	in
	accordance 	with
	due
process.
(Id....	
at
	pp.
	8-9.)
	(Emphasis
	added.)
The
	majority 	disapproves 	of 	Ventura's
	listing
	of 	"acceptance
by
	the 	original 	certified
	union" 	as 	part 	of 	the 	test 	for
28

determining
	whether
	an
	amendment
	to
	certificat~on
	should.be
granted.
The
	majority's
	disapproval 	of
	this
	portion
	of
	Ventura
	is
puzzling, 	especially 	in
	light
	of
	its
	recognition
	that
	Ventura
	is
consistent
	with
	the
	Supreme
	Court's 	decision
	in
	NLRB
	v.
	Financial
Institution
	Employees
	of
	American,
	Local
	1182
	(1982)
	475 	u.s. 	192
(121
	LRRM
	2741]
	and
	subsequent
	decisions
	of
	the
	NLRB
	which
	apply
the
	"substantial
	continuity
11
	and 	"due
	process"
	analysis.
Furthermore,
	the 	majority 	expressly 	recognizes
	that
	several
	NLRB
cases
	do
	indicate
	that
	the
	consent 	of 	the 	exclusive
representative,
	i.e.,
	original
	certified
	union,
	is
	required 	to
effect
	a
	disaffiliation
	or
	affiliation.
	I
	submit
	that
	the
omission 	of 	the 	"acceptance
	by
	the
	original
	certified
	union"
requirement
	from
	the
	analysis 	in
	many
	of 	the
	NLRB
	decisions
	in
this
	area
	be
	explained
	by
	the
	fact 	that
	it
	may
	be
	fairly
	uncommon
for
	a
	petitioning
	union
	to
	splinter
	in
	such
	a 	way
	that
	the
original 	certified
	union 	remains
	in 	existence
	after
	the
affiliation
	or
	disaffiliation
	and 	opposes
	a
	pending
	petition
	for
an
	amendment
	to 	the
	certification.
	In
	a
	majority 	of
	such
	cases,
the 	facts
	would 	most
	likely 	indicate
	a
	lack 	of
	substantial
continuity 	or
	due
	process 	as 	well 	as 	opposition
	from
	the
	original
certified
	union.
Having
	repudiated
	that 	portion 	of 	Ventura
	that
	it
	claims
establishes
1
"acceptance 	of 	the 	original 	certified
	union"
	as
	part
1As
	recognized
	by
	the 	majority, 	page 	23, 	footnote 	10,
whether 	Ventura 	actually 	holds 	that 	"acceptance 	by
	the 	original
certified
	union"
	is
	a
	requirement 	for
	amended
	certification 	is
open
	to 	question. 
29

of
	the
	test
	for
	determining
	the 	appropriateness 	of
	an
	amendment
to
	certification,
	the 	majority
	then
	observes
	that
	if
	"the
o~iginal
	certified
	union
	opposes
	the
	[amended
	certification],
	a
question
	concerning
	representation
	is
	created
	and
	the
	amended
certification 	is
	denied."
	Since
	the 	majority 	apparently
acknowledges
	that,
	under
	certain
	circumstances, 	the 	acceptance 	or
opposition
	of
	the
	original
	certified
	union
	may
	be
	relevant
	as
	to
whether
	an
	amendment
	to
	certification
	should
	be
	granted,
	its
disapproval
	of
	Ventura
	for
	mentioning
	the
	"acceptance''
	issue
	is
unwarranted.
Clearly,
	NLRB
	case
	law
	recognizes
	that
	opposition
	of
	the
original 	certified
	union 	can
	raise
	a
	question
	concerning
representation
	and
	therefore 	create
	an 	impediment
	to 	the 	granting
of
	an
	amendment
	to
	certification.
	Thus,
	in
	Missouri
	Beef
Packers, 	Inc.
	(1969)
	175
	NLRB
	1100 	[71
	LRRM
	1177],
	the
	board 	of
directors
	and
	a
	majority 	of
	officers
	of
	the
	original
	certified
union
	which 	had
	petitioned 	for
	affiliation
	had
	a
	change
	of
	heart
and
	decided
	to 	repudiate 	the
	affiliation.
	In 	dismissing 	the
petition
	for
	amendment
	of 	the
	certification,
	the
	NLRB
	stated:
Where,
	as 	here, 	there
	is
	no
	guaranty 	of
continuity 	of 	representation
	and
	the
certified
	labor 	organization
	is
	a
functioning, 	viable 	entity,
	and 	opposesamendment,
	it
	cannot 	be
	granted 	without 	doing
violence 	to 	the 	purposes 	of 	the 	Act, 	which
include 	the 	promotion 	of
	stability 	in 	labor-
management
	relations
..
(Id. 	at
	p. 	1101.)
In 	contrast, 	in
	Hamilton 	Tool
	Co.
	(1971) 	190
	NLRB
	571
[77
	LRRM
	1257), 	the
	NLRB
	distinguished 	the 	facts 	before
	it
	from
Missouri 	Beef 	noting:
30

However,
	the
	facts
	of
	this
	case
	are 	opposite
to
	the
	facts
	presented
	in
	Missouri
	Beef
Packers,
	Inc.,
	supra.
	Here,
	the
	certified
labor 	organization
	does
	not
	oppose
	amendment
and
	is
	not
	a
	presently
	functioning
	viable
entity.
	In
	fact,
	the
	certified
	Union
	has
	now
become
	the
	Petitioner.
(I.d....	
at
	p.
	575.)
The
	above
	NLRB
	cases 	are
	helpful 	in
	that
	they 	not
	only
illustrate
	the
	significance
	of 	the
	acceptance
	or 	opposition	
of
the
	original
	certified
	union
	to
	a
	determination
	of 	whether	
a
question
	concerning
	representation
	exists,
	but 	they
	illustrate
what
	is
	meant
	by
	the 	phrase
	"original
	certified
	union."
	In
	.the
instant
	case,
	CTA
	is
	under
	the
	misapprehension
	that
	it
	is
	the
"original
	certified
	union"
	and
	that,
	therefore,
	its
	opposition 	to
the
	disaffiliation 	is
	relevant.
	The
	Board
	agent
	found, 	and
	I
agree,
	that
	CTA
	is
	not
	the
	"original
	certified
	union~
11
	within 	the
established
	meaning
	of
	that
	phrase.
	The
	"original
	certified
union"
	in 	this
	case
	is
	the
	local 	organization,
	identified 	in
	the
original 	certification
	as
	CTAA/CTA/NEA.
	After 	the
	disaffiliation
occurred,
	CTAA/CTA/NEA
	no
	longer
	existed
	as
	a
	separate
	entity
	but
was
	replaced
	by
	the
	petitioning 	party 	in
	this
	case,
	CTAA.
	(See
Hamilton
	Tool
	Co.,
	supra.)
	Thus,
	since
	CTAA/CTA/NEA
	no
	longer
exists,
	it
	can 	not
	be
	said
	that
	the
	11
original 	certified
	union"
	in
this
	case
	opposes
	the
	amended
	certification.
2
Furthermore, 	the
	mere
	fact 	that
	CTA,
	as
	a
	parent
organization 	of 	the 	original 	certified
	union, 	~pposes 	the
2Had 	CTAA
	emerged 	as
	a
	splinter
	group 	of
	CTAA/CTA/NEA,	
and
had
	CTAA/CTA/NEA
	remained
	in 	existence 	after 	the
	disaffiliation,
as
	a
	separate
	and
	dissenting 	entity, 	then 	the
	Board 	would 	have
been 	faced 	with
	a
	question 	concerning 	representation
	and 	an
amendment
	to 	certification
	would 	not 	have 	been 	an 	approp~iate
means 	of 	resolving 	the 	dispute.
	( See 	Missouri 	Beef 	Packers,
Inc.
,
	supra.
)
31

disaffiliation
	is
	irrelevant
	to
	a
	determination 	of
	whether 	an
amendment.
to
	certification 	is
	appropriate.
	CTA
1 s
	reliance
	on
affiliation
	cases
	to
	support
	its
	argument
	that
	its
	opposition
	is
relevant
	is
	misplaced.
	In
	a
	case
	where
	a
	local
	original
certified
	union 	seeks
	to
	affiliate 	with
	a
	national 	or
international
	parent 	organization, 	the 	opposition 	of
	the
	parent
organization
	might
	well
	be
	determinative
	of
	whether
	an
	amendment
to
	certification
	should
	be
	granted.
	Obviously,
	the
	foisting
	of
	a
local
	upon 	an
	unwilling 	parent
	woJld
	hardly
	foster
	stability
	in
labor
	relations.
	(See
	Poway
	Unified
	School
	District
	(1982)
	PERB
Order
	No.
	Ad-127.)
	In
	contrast,
	the 	opposition
	of
	the
	parent
organization
	is
	inherent 	in
	a
	disaffiliation
	case
	and
	therefore
should 	not
	be
	a
	factor 	in
	determining
	whether
	amendment
	of
certification 	is
	appropriate.
In
	summary,
	I
	depart
	from
	the 	majority
	in 	that
	I
	do
	not 	find
it
	necessary
	to
	disapprove 	of 	those 	portions 	of 	Ventura.
	or
	its
progeny,
	that 	refer
	to
	11
acceptance 	of 	the
	original
	certified
union" 	as
	a
	precondition 	to 	granting
	an
	amendment
	to
certification.
	In
	an
	appropriate 	case, 	the 	opposition 	of
	the
original 	certified
	union
	to
	a
	disaffiliation
	could
	be
determinative 	of 	the
	outcome
	of
	an
	amendment
	to
	certification
proceeding. 	Since
	CTA
	is
	not 	the 	original 	certified
	union
	in
this
	case,
	its
	opposition 	to 	the
	disaffiliation 	is 	irrelevant 	to
a
	determination 	of 	whether 	an 	amendment 	to 	certification 	is
appropriate. 	In
	any
	event,
	I
	would
	find 	that
	under
	existing
	law,
an 	amendment
	to 	certification 	is
	proper 	in 	this 	case.
32