San Juan Unified School District (PERB 0012E)

STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
SAN JUAN FEDERATION OF TEACHERS, LOCAL
1743, CFT/AFT, AFL-CIO,
Charging Party,
and
SAN JUAN TEACHERS ASSOCIATION, CTA/NEA,
Respondent,
and
SAN JUAN UNIFIED SCHOOL DISTRICT,
Respondent.
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Case Nos. S-CO-2
S-CE-3
EERB No. 12
Appearances: Stewart Weinberg, Attorney (Van Bourg, Allen, Weinberg
& Roger), for the Charging Party; Richard L. Gilbert, Attorney
(Blease, Vanderlaan & Rothschild), for Respondent San Juan Teachers
Association; Robert A. Galgani, Attorney (Breon, Galgani & Godino)/
for Respondent San Juan Unified School District.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
This is an appeal from the dismissal of an unfair practice
charge by an Educational Employment Relations Board Hearing Officer.
On September 7, 1976, the San Juan Federation of Teachers
(Federation) filed unfair practice charges against the San Juan
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Teachers Association (Association) and the San Juan Unified School District.
Following prehearing withdrawals and amendments, three charges remain pending for
consideration, two against the Association and one against the district. The
charge against the district alleges a violation of Government Code Section 3543.5(a)
and (b),
y in that the district permitted the Association to "audit and reproduce"
copies of the proof of support petition that the Federation filed with the district
in a representation proceeding under Government Code Section 3544.l(b).—
2/
The first charge against the Association alleges a violation of Government
Code Section 3543.6(a) and (b), 2/ in that the Association, by requesting
* Government Code Section 3540 et seq. will be sometimes noted in this decision
as Educational Employment Relations Act or EERA.
1/ Section 3543.5 provides in pertinent part: "It shall be unlawful for a public
school employer to:
(a) Impose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise to interfere with, restrain,
or coerce employees because of their exercise of rights guaranteed by this chapter.
(b) Deny to employee organizations rights guaranteed to them by this chapter."
2/ In the representation proceeding out of which these unfair practice charges
arose, the Association sought recognition from the district as exclusive represent-
ative of certain employees; the Federation intervened with a competing claim of
representation. Section 3544 requires that a request for recognition "include
proof of majority support on the basis of current dues deduction authorizations or
other evidence such as notarized membership lists, or membership cards, or petitions
designating the organization as the exclusive representative of the employees."
Section 3544.l(b) requires an organization filing a competing claim of repre-
sentation to support its claim with evidence of "at least 30 percent of the members
of an appropriate unit...." The claim may be "evidenced by current dues deduction
authorizations or other evidence such as notarized membership lists, or membership
cards, or petitions signed by employees in the unit indicating their desire to be
represented by the organization."
3/ Section 3543.6 provides in part: "It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause a public school employer to violate Section
3543.5.
(b) Impose or threaten to impose reprisals on employees or otherwise to
intefere with, restrain, or coerce employees because of their exercise of rights
guaranteed by this chapter."
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that the district permit the Association to audit and reproduce the
Federation's petition, caused the district to commit the unfair
practice of allowing the Association to audit and reproduce the
petition. The second charge against the Association alleges that an
agent of the Association used the petition received from the district
to contact those who signed the petition and to "persuade" those
contacted to withdraw their names from the petition. A portion of
that charge, alleging harassment and intimidation in soliciting the
withdrawal of names from the petition, was withdrawn by an amendment
to the charge. In each pending charge, the Federation seeks a cease
and desist order and other appropriate relief from this Board.
The Association filed an answer denying all essential allegations
in the charges, a motion for particularization of the charges, and a
motion to dismiss the charges on the ground that they "fail to state
facts sufficient to constitute unfair practices...," The district
filed an answer denying all essential allegations in the charge
against the district, but did not move to dismiss the charge against
the district.
The hearing officer granted the Association's motion to
dismiss the charge against the Association. On his own motion
he dismissed the charge against the district. In dismissing the charges,
the hearing officer reasoned that the Federation's proof of support
petition became a public record in the hands of the district; that no
public interest exempts proof of support petitions from the Public
Records Act ; and that the Association's use of the petitions was
4/ Government Code Section 6250 et seq.
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permissible organizational activity rather than illegal restraint or coercion
of employees within the meaning of the EERA. This appeal by the
Federation followed. After the dismissal and after the filing of the
appeal, the Federation's intervention in the representation proceeding
was withdrawn.1/
In considering a motion to dismiss on the ground that a charge
fails to allege a violation of the Act, we assume, for the purpose
of ruling on the motion, that the essential facts alleged in the charge
are true. On that assumption, we find that the charges in this case
do not allege a violation of the EERA. We accordingly sustain the hearing
officer's dismissal of all charges.
The Charge Against The District
Government Code Section 3544.l(b) requires that an employee organization
submitting a competing claim of recognition provide a school district
with proof of 30 percent support. It is thus clear on the face of
the EERA that the Legislature intended that a district should see the
petition and the accompanying proof of support of an employee organization
seeking recognition. The harder question is whether the Legislature, having
made it mandatory that the district receive an employee organization's
petition and proof of support, simultaneously intended to make it an
unfair practice for a district to allow another employee organization to
5/The Federation's withdrawal of its intervention in the representation
proceeding has prompted the Association to argue that the unfair practice
charges in this case should be dismissed on grounds of mootness. We reject
that argument. The unfair practice charges and the representation proceeding,
while functionally related, are not interdependent. They arose under different
sections of the Act and relate to different matters. On a finding that the
Association violated the Act as alleged, the Federation would be entitled to a
cease and desist order and other forms of relief applicable to possible future
conduct of the Association, notwithstanding the fact that the Federation no longer
had an interest in the representation proceeding out of which the charges in this
case arose.
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"audit and reproduce" that material.
The Legislature had more than one choice open to it in
considering the issue of where proof of support accompanying a request
for recognition or an election petition should be filed. The Legislature
could have required that the EERB receive proof of support from all
parties seeking to become an exclusive representative by way of
voluntary recognition or an election. Alternatively, the Legislature
could have required that the employer receive proof of support when the
employer is asked to recognize an employee organization, and that the
EERB receive proof of support when an election rather than recognition
is sought. Had the Legislature followed the latter course, the EERA's
representation procedures in these respects would be consistent with
the National Labor Relations Act. Virtually without exception, the
prevailing practice is to require an employee organization to place
before an employer the proof on which the employer's decision to
recognize is predicated, but to require the submission of proof of
support to a neutral agency if an election is sought. 7/
The EERA is unique among statutes of its kind, in that
an employee organization seeking to protect the confidentiality of its
proof of support may not do so by petitioning for an election rather
67Section 9(c)(l)(A) of the National Labor Relations Act, 29 U.S.C.
159(c)(1)(A), requires that a representation petition allege that an
employer "declines to recognize" the petitioner. But a Union's failure to
demand recognition is not a basis for dismissing the petition, provided
the employer refuses at the hearing to recognize the petitioner. "M"
System, Inc., 115 NLRB 1316, 38 LRRM 1055 (1956).
7/Among the statutes that expressly provide the option of seeking recognition
or an election are Educational Employment Relations Acts in Kansas and Indiana.
See Kansas Professional Negotiations Act, Section 72-5416, GERR RF-124, 51:2518-2519;
Indiana Educational Employment Relations Act, Section 10(b) , GERR RF-104, 51:2314.
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8/
than seeking recognition. The EERA requires instead that an enployee
organization seek voluntary recognition as the first step leading to
possible recognition or an election. That, combined with the requirement
that an employee organization provide the employer, not the EERB, with
proof of support for voluntary recognition purposes, is what makes it
mandatory that an employee organization file proof of support with the
district in all EERA, representation cases,. This includes those in which the
employee organization might choose an election as a means of protecting
confidentiality, if the employee organization had that option.
We assume that the present case would not have arisen if
the Legislature had provided for the submission of proof of support
to the EERB rather than a school district . In that event, the proof
of support would have remained in the hands of the EERB, absent a clear
mandate to the contrary by the Legislature. Thus, we are unable to
decide this case in favor of the charging party by reasoning that the
Legislature intended to provide only the EERB with access to proof
of support. Since the case may not be decided in favor of the charging
party on that ground, we must next consider whether the EERA requires
confidentiality of proof of support placed in the custody of a school
district pursuant to the express terms of the Act.
We think that the procedural requirements of the Act in repre-
sentation cases are such that each party in a representation case has an
interest in the proof of support submitted by another party. This inter-
party interest in proof of support in EERA representation cases stems from
2/
Government Code Section 3544 provides in part: "An employee organization
may become the exclusive representative for the employees in an appropriate
unit for purposes of meeting and negotiating by filing a request with a public
school employer alleging that a majority of the employees in an appropriate
unit wish to be represented by such organization and asking the public school
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8/(cont'd)
employer to recognize it as the exclusive representative." In lieu
of recognizing an employee organization, an employer may, among other
things, request an election.
But nothing in the Act authorizes an employee organization to petition
for an election in lieu of seeking recognition.
In addition to an election at the request of the employer, Section 3544.l(b)
of the Act requires an election if an intervening employee organization
meets a showing of interest requirement of 30 percent support, as
particularly described in note 2, supra. The Act requires submission of
the intervenor's proof of support to the employer and not to the EERB.
Government Code Section 3544.3 permits an election without a preliminary
request for recognition, but only at the request of a "majority of employees"
if by January 1 of any school year, "no employee organization has made a
claim of majority support in an appropriate unit...." An employee
organization may intervene and appear on the ballot on meeting the
showing of interest requirements of Section 3544.1 (b) of the
Act, as described in note 2, supra.
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the following: In an unfair practice proceeding, the voluntary recognition of a union may
be defeated on a showing that the recognized enployee organization lacked majority support
at the time of recognition.2/ In a representation proceeding, voluntary recognition may be
defeated if an intervening employee organization triggers a question concerning repre-
sentation and an election by making a 30 percent showing of support;
• 12/ voluntary recognitioi
may be permitted if the party initially seeking recognition is able to show that an
intervenor did not meet the required 30 percent proof of support. Also, there is nothing
to prevent an employer, who is an interested party in this process, from utilizing
these petitions in much the same way as the Association has.
With this mutual interest the parties share in proof of support, we think that the
Legislature did not intend to make it an unfair practice for a school district to
provide an enployee organization with another enployee organization's proof of support.
In order to ensure equal footing for all interested parties, the Legislature apparently
intended that the proof of support petitions should be accessible to enployee
organizations.
2/ International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731, 48 LRRM 2251
(1961), interpreting Section 8 (a) (2) of the National Labor Relations Act, 29 U.S.C.
158(a)(2). Government Code Section 3543.5(d) is in part an exact replica of NLRA
Section 8(a)(2). Both sections make it an unfair practice to "[d]ominate or interfere
with the formation or administration of any employee organization, or contribute
financial or other support to it...." In our recent decision in Los Angeles Unified
School District, EERB Decision No. 5, November 24, 1976, we said: "Where provisions
of California and federal labor legislation are parallel, the California courts have
sanctioned the use of federal statutes and decisions arising thereunder, to aid in
interpreting the identical or analogous California legislation." See Fire Fighters'
Union v. City of Vallejo, 12 C. 3rd 608, 87 LRRM 2453(1974).
10/ Government Code Section 3544.1 provides in part: "The public school employer shall
grant a request for recognition filed pursuant to Section 3544 unless.
(b) Another employee organization either filed with the public school employer a
challenge to the appropriateness of a unit or submits a competing claim of representation
within 15 workdays of the posting of notice of the written request." The competing
claim of representation is filed when an intervening employee organization timely meets
the 30 percent proof of support required by Government Code Section 3544.l(b) , note 2, supra.
Additionally, the EERB has adopted the following resolution: "An employer may not
grant voluntary recognition where a question of representation exists pursuant to
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Since, as we have concluded, the EERA does not require confidentiality
in these respects, the EERA itself may not be viewed as an exception to the
general requirements of the Public Records Act. 11/ Because no other
exemptions in the Public Records Act are applicable, it follows that proof of
support filed with a school board constitutes a public record within the
meaning of the Public Records Act, and, as such is open to inspection by
the general public.
10/(cont'd)
a petition filed under Section 3544.5 of the (Educational Employment Relations
Act)." EERB Resolution No. 4, May 18, 1976.
In marked contrast to the EERA's statutory proof-of-support requirement,
the NLRB has a 30 percent "representation requirement" which is not required
by the National Labor Relations Act but is instead a rule of administrative
convenience used to conserve the Board's resources by screening out frivolous
representation petitions. O.D. Jennings & Co., 68 NLRB 41, 18 LRRM 1133
(1946). The NLRB's 30 percent rule is in NLRB Rules and Regulations and
Statements of Procedure, Series 8, as amended, Section 101.18.
11/Government Code Section 6252(d) defines "public records" as follows:
"'Public records' includes any writing containing information relating to
the conduct of the public's business prepared, owned, used, or retained by
any state or local agency regardless of physical form or characteristics...."
Government Code Section 6253(a) provides: "Public records are open
to inspection at all times during the office hours of the state or local
agency and every citizen has a right to inspect any public record, except
as hereafter provided...."
Government Code Section 6254(k) provides, among other exemptions
from coverage by the Public Records Act: "Records the disclosure of
which is exempted or prohibited pursuant to provisions of federal or state
law, including but not limited to, provisions of the Evidence Code relating
to privilege."
The Public Records Act is applicable to shcool boards. See California
School Employees Assn. v. Sunnyvale Elementary School District, 36 C.A. 3d
46, 65, 66; 111 Cal. Rptr. 433 (1973).
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The Charges Against the Association
Concerning the charge that the Association caused the district
to violate the Act, having found that the district did not commit an
unfair practice by releasing the Federation's proof of support to the
Association, it follows that the Association did not violate the Act
by causing the district to release it to the Association, assuming that
the Association acted as alleged. We next consider the charge that the
Association attempted to persuade persons to withdraw their names from
the Federation's petition.
It is possible that the proof of support that the Association obtained
from the district could have been used by the Association for a purpose in
violation of one or more unfair practice sections in the EERA. If that had
been alleged with particularity, we would have sustained the validity of the
charge on its face, thus providing the Federation an opportunity to prove at a
hearing the facts alleged in that charge. But the amended charge makes no such
allegation. The Federation's amendment of the original charge to omit
reference to harassment and intimidation in the solicitation of the
withdrawals is, in effect, a concession that at a hearing on the amended
charge, the Federation would not be able to satisfy its burden of proving
that anyone was harassed or intimidated by the Association's attempt to
solicit the withdrawal of signatures from the Federation's petition. We
do not believe that an attempt to obtain the withdrawal of proof-of-
support signatures is per s e a violation of the EERA.12/ Accordingly, we
find no prima facie violation of the Act in the amended charge against
the Association.
12/ See NLRB v. Monroe Tube Co., __F.2d ,94 LRRM 2020 (1976), revers-
ing the NLRB and holding that an employer, by encouraging and assisting
employees to withdraw their union authorization cards did not "per se"
violate the National Labor Relations Act. "We have been cited no case, nor
do we know of any, which holds that it is per se a violation of Section 8
(a)(1) for an employer to suggest that it is possible for his employees to
withdraw their union authorization cards, or for an employer to make
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In deciding t h i s 	case, 	we are aware of the different policy
considerations underlying t h i s 	dispute: 	an employee organization's 	claimed
i n t e r e s t 	in confidentiality, 	another 	employee 	organization's 	i n t e r e s t 	in
a r i v a l ' s 	proof of support 	for i t s 	own organizational purposes, 	and an
employer's 	i n t e r e s t 	in valid proof of support 	for recognition purposes.
Whatever the r e l a t i v e wisdom of these 	conflicting claims, 	it 	is 	the
Legislature and not 	t h i s 	Board that 	is 	empowered to decide how they should
be balanced.
ORDER
1. 	The hearing o f f i c e r ' s 	dismissal of the u n f a i r p r a c t i c e charge
f i l e d by the San Juan Federation of Teachers, 	Local 1743, 	CFT/AFT, 	AFL-CIO,
against 	the 	San Juan Unified School D i s t r i c t , 	is 	sustained.
2. 	The hearing o f f i c e r ' s 	dismissal of the unfair practice 	charges
f i l e d by the San Juan Federation of Teachers, 	Local 1743, 	CFT/AFT, AFL-CIO,
against the San Juan Teachers Association, 	CTA/NEA, 	is 	sustained.
By: Reginald Alleyne, Chairman 	Raymond J. Gonzales/Member /
JeriLlou Cossack, Member
March 10, 1977
12/ (cont'd)
available 	the 	address of 	the •• Union's headquarters for that purpose, or for
the employer to engage in the limited effort observed here to assist employees
in the preparation of withdrawal letters. 	While it is certainly true that
an employer's solicitation 	of withdrawal letters may violate the Act under
some circumstances, 	the propriety of such conduct must be assessed in the
light of all the facts in the case, particularly the employer's prior and
contemporaneous conduct in dealing with union activities."
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