Sacramento City Unified School District (Mah) (PERB A252E)

STATE
	OF
	CALIFORNIA
DECISION
OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SACRAMENTO
	CITY 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging
	Party,
v.
SACRAMENTO
	CITY UNIFIED
	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
_____________________ )
Case
	No.
	S-CE-1566
Administrative
	Appeal
PERB
	Order
	No.
	Ad-252
March
	4,
	1994
DENNIS
	MAH
	and
	BOWLING GREEN CHARTER
SCHOOL,
Applicants
	for 	Joinder.
)
)
)
)
_____________________ )
Appearances:	
California
	Teachers
	Association
	by Diane
	Ross,
Attorney,
	for
	Sacramento
	City
	Teachers
	Association,
	CTA/NEA;
Kay 	&
Stevens
	by
	M.
	Carol
	Stevens, 	Attorney,
	for
	Sacramento
	City
Unified
	School
	District; 	Griffin	
&	
Cochrane 	by
	Nancy
	C.
	Cochrane,
Attorney,
	for
	Dennis
	Mah
	and 	Bowling Green
	Charter
	School.
Before
	Blair,
	Chair; 	Carlyle
	and
	Garcia,
	Members.
DECISION
BLAIR,
	Chair: 	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by 	Dennis
	Mah 	(Mah)
	and
Bowling Green
	Charter
	School 	(Bowling Green)
	of 	an
	administrative
law
	judge's
	(ALJ)
	denial 	of
	an
	application 	for 	joinder 	of
	party.
BACKGROUND
This 	case 	began 	on
	July
	21, 	1993,
1
when
	the
	Sacramento
	City
Teachers 	Association,
	CTA/NEA
	(Association)
	filed
	an
	unfair
practice
	charge 	with
	PERE
	against 	the 	Sacramento 	City Unified
School
	District 	(District).
	The
	allegations 	of 	the 	charge 	grew
1
All 	dates 	herein 	refer 	to 	1993, 	unless 	otherwise 	indicated.

out
	of
	activities
	connected
	to
	the 	establishment 	of
	a
	charter
school.
	After
	an
	investigation
	by
	PERB's
	Office 	of 	the
	General
Counsel,
	a
	complaint
	issued
	on
	October
	28,
	alleging
	violations
of
	section
	3543.5(a),
	(b)
	and
	(c)
	of 	the 	Educational
	Employment
Relations
	Act
	(EERA) . 2	
The
	complaint
	generally 	alleges
	that
	in
the
	spring
	of
	1993
	the
	District,
	through
	its
	agent
	Bowling
	Green
Elementary
	School
	Principal
	Mah,
	negotiated
	directly
	with
employees
	over
	matters 	within 	the
	scope
	of 	bargaining
	and
	covered
by
	the
	collective
	bargaining
	agreement 	between
	the
	District
	and
the
	Association. 	In addition,
	it
	alleges 	that
	the
	District
unilaterally
	changed
	policies
	covering
	transfer 	rights,
	student-
to-teacher
	ratio,
	use 	of
	volunteers
	and
	the 	evaluation
	program
for 	teachers.
2EERA
	is
	codified
	at
	Government
	Code
	section
	3540
	et
	seq.
Unless 	otherwise 	indicated,
	all
	statutory
	references 	herein 	areto 	the
	Government 	Code.
	EERA
	section
	3543.5
	states,
	in 	pertinent
It
	shall
	be 	unlawful
	for
	a
	public
	schoolemployer
	to
	do 	any
	of 	the 	following:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to 	interfere
	with,
	restrain,
	or 	coerceemployees 	because 	of
	their
	exercise 	of
	rightsguaranteed
	by
	this
	chapter.
	For purposes 	of
this
	subdivision,
	"employee"
	includes
	an
applicant 	for
	employment
	or
	reemployment.
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them by
	this 	chapter.
(c)
	Refuse 	or 	fail 	to
	meet 	and 	negotiate 	in
good
	faith 	with 	an 	exclusive 	representative.
2

On November 	23, 	Mah 	filed 	an 	application 	for 	joinder 	as 	an
individual 	and 	as 	a 	representative 	of 	the 	Bowling 	Green 	Steering
Committee. 	After 	reviewing 	the 	application 	for 	joinder 	and 	the
oppositions 	filed 	by both 	the 	Association 	and 	the 	District, 	the
ALJ 	denied 	the 	application 	on December 	10. 	On December 	30, 	Mah
sought 	appeal 	of 	that 	order 	pursuant 	to 	PERB 	Regulation 	32200. 3
The 	ALJ 	issued an 	order 	certifying 	this 	appeal 	to 	the 	Board 	on
January 	10, 	1994.
DISCUSSION
Mah 	filed 	his 	application 	for 	joinder pursuant 	to 	PERB
Regulation 	32164 	arguing 	that, 	as 	representative 	of 	the 	staff
of 	the 	charter 	school 	and 	author 	of 	the 	charter, 	he 	has 	a
substantial 	interest 	to 	protect 	which 	is 	different 	from 	the
3 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	Regulation 	32200
reads:
A party may 	object 	to 	a 	Board agent's
interlocutory 	qrder 	or 	ruling 	on a 	motion
and 	request 	a 	ruling by 	the 	Board 	itself.
The 	request 	shall 	be 	in 	writing 	to 	the 	Board
agent 	and 	a 	copy 	shall 	be 	sent 	to 	the 	Board
itself. 	Service 	and proof 	of 	service
pursuant 	to 	section 	32140 	are 	required. 	The
Board agent 	may 	refuse 	the 	request, 	or may
join 	in 	the 	request 	and 	certify 	the 	matter 	to
the 	Board. 	The 	Board 	itself 	will 	not 	accept
the 	request 	unless 	the 	Board agent 	joins 	in
the 	request. 	The 	Board agent 	may 	join 	in
the 	request 	only where 	all 	of 	the 	following
apply:
(a) 	The 	issue 	involved 	is 	one 	of 	law;
(b) 	The 	issue 	involved 	is 	controlling 	in 	the 	case;
(c) 	An 	immediate 	appeal 	will 	materially 	advance 	the
resolution 	of 	the 	case.
3

interests
	of 	the 	Association
	or
	District.
	PERB
	Regulation
32164(a)
	reads:
Any
	employee,
	employee
	organization 	or
employer
	may
	file
	with
	the
	Board
	agent
	an
application
	for 	joinder
	as
	a
	party
	in
	a
case. 	Service
	and
	proof 	of
	service
	of 	the
application
	pursuant
	to 	section
	32140
	arerequired.
An
	employee
	is
	defined
	in
	EERA
	section 	3540.l(j) 	as:
[A]ny
	person
	employed
	by any
	public
	school
employer
	except 	persons
	elected
	by
	popular
vote,
	persons 	appointed
	by
	the
	Governor
	of
this 	state,
	management
	employees, 	and
confidential
	employees.
Mah
	is
	employed
	as
	a
	principal 	in
	the
	District
	and
	is
	described
in 	the
	complaint
	as
	an 	agent 	of 	the
	District.
	The
	collective
bargaining
	agreement 	and
	a
	declaration
	of
	the
	District
	interim
superintendent 	both describe
	a
	principal	
as
	a 	management
employee.
	In
	Mah's
	response
	to
	the
	District
	and
	the
Association's 	oppositions
	to 	his 	application 	for 	joinder,
he
	asserts 	that
	he
	is
	an 	"employee,
11
	but
	does
	not 	provide 	any
factual 	basis 	for
	this
	determination.
	Based
	on
	the 	information
contained
	in 	the 	record before 	us,
	Mah
	is
	a 	management
	employee
and	
lacks 	standing 	to
	file
	a
	request 	for 	joinder.
	Accordingly,
his 	application
	is
	denied.
However,
	PERB
	Regulation
	32164(d)
4
allows 	the
	Board, 	on
4
PERB
	Regulation
	32164(d)
	states:
The 	Board may
	order 	joinder 	of 	an 	employer,
employee
	organization 	or 	individual, 	subject
to
	its
	jurisdiction,
	on
	application 	of
.any
party 	or
	its
	own
	motion
	if 	it
	determines
that: 
4

its 	own motion, 	to 	order 	joinder 	of 	individuals 	in 	specific
situations. 	Charter 	schools 	are 	a 	relatively 	new 	innovation 	in
California 	and 	this 	is 	the 	first 	case 	involving a 	charter 	school
that 	has 	come 	before 	the 	Board. 	Important 	questions 	are 	certain
to 	arise 	with 	respect 	to 	the 	relationship 	of 	EERA 	to 	the 	charter
schools' 	legislative 	scheme.
(1) 	In 	the 	absence 	of 	the 	employer, 	employee
organization 	or 	individual, 	as 	a 	party,
complete 	relief 	cannot 	be 	accorded; 	or
(2) 	The 	employer, 	employee 	organization 	or
individual 	has 	an 	interest 	relating 	to 	the
subject 	of 	the 	action 	and 	is 	so 	situated 	that
the 	disposition 	of 	the 	action 	in 	their
absence may:
(A) 	As 	a 	practical 	matter 	impair 	or 	impede
their 	ability 	to 	protect 	that 	interest; 	or
(B) 	Leave 	any 	of 	the 	parties 	subject 	to 	a
substantial 	risk 	of 	incurring 	double,
multiple, 	or 	otherwise 	inconsistent
obligations 	by 	reason 	of 	said 	interest.
Mah 	has 	made 	a 	compelling 	argument 	that 	he 	represents
certain 	interests 	at 	Bowling Green. 	Due 	to 	the 	unique 	character
of 	this 	charter 	school 	and 	the 	alleged violations 	in 	the 	unfair
practice 	complaint, 	these 	interests 	are 	related 	to 	the 	subject
of 	this 	unfair 	practice 	charge. 	Mah 	is 	situated 	so 	that 	the
disposition 	of 	this 	case 	in 	his 	absence may, 	as 	a 	practical
matter, 	impair 	or 	impede 	his 	ability 	to 	protect 	that 	interest.
Accordingly, 	the 	Board, 	on 	its 	own motion, 	orders 	that 	Mah 	be
joined 	as 	a 	party 	to 	this 	case 	to 	insure 	all 	interests 	are
represented.
5

ORDER
Mah's
	appeal
	to
	an
	order
	denying
	application 	for 	joinder
	of
party
	is
	GRANTED
	and 	he
	is
	hereby
	afforded
	party
	status
	in
	Case
No.
	S-CE-1566.
	The
	administrative
	law
	judge
	is
	hereby
	ordered
to
	grant
	the
	party
	status
	consistent
	with
	this
	Decision.
Members
	Carlyle
	and
	Garcia
	joined
	in
	this
	Decision.
6