Rio Linda Union School District (PERB 0071E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL UNION, )
LOCAL 22, AFL-CIO, )
)
Charging Party, ) Case Nos. S-CE-18
) S-CO-8
v. )
) PERB Decision No. 71
RIO LINDA UNION SCHOOL DISTRICT, )
) September 18, 1978
Respondent, )
)
and )
)
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, }
CHAPTER 290, }
)
Respondent. )
)

Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen,
Weinberg & Roger) for Service Employees International Union,
Local 22, AFL-CIO; Robert S. Shelburne, Deputy County Counsel,
- Sacramento County for Rio Linda Union School District;

Robert Blake, Attorney for California School Employees
Association, Chapter 290.

Before Gluck, Chairperson; Gonzales and Cossack Twohey, Members,

DECISION
Service Employees International Union, Local 22, AFL-CIO
(hereafter SEIU) appeals from the attached hearing officer's
recommended decision dismissing the unfair practice charges
filed by SEIU against Rio Linda Union School District
(hereafter District) and California School Employees

Association, Chapter 290 (hereafter CSEA) .

• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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FACTS
On December 	3f 	1976 	and January 	7, 	1977, 	SEIU 	filed 	an
unfair 	practice 	charge 	and 	consolidated 	particularized
statement of 	charge, 	respectively, 	against 	the District
alleging 	that 	the District 	violated 	section 3543.5(a), 	(b)
and 	(d) 	of 	the Educational Employment Relations Act1
(hereafter 	EERA) 	by 	voluntarily 	recognizing CSEA 	in 	a
classified 	unit 	at 	a 	time when CSEA and 	SEIU were 	competing 	for
the support of 	employees 	in the unit. 	On December 	21, 	1976,
SEIU 	filed 	an 	unfair 	practice 	charge 	against 	CSEA 	alleging 	that
1Government 	Code 	section 	3540 	et 	seq. 	All 	statutory
references 	hereafter 	are 	to 	the Government Code.
Section 	3543.5 	provides:
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.
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration 	of 	any 	employee
organization or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any way encourage
employees 	to 	join 	any 	organization 	in
preference 	to another....

3
CSEA violated 	section 	3543.6(a) 	and 	(b)2 by 	seeking 	and
accepting 	voluntary 	recognition 	in 	the 	same 	unit 	at 	a 	time 	when
CSEA 	and 	SEIU 	were 	competing 	for 	the 	support 	of 	employees 	in
the 	unit. 	Both 	charges 	were 	based 	upon 	the 	following 	facts.
In 	early April 	1976, 	CSEA 	filed 	a 	request 	for 	recognition
with 	the District 	for 	a 	unit 	of 	all 	classified 	employees,
excluding 	management, 	supervisory 	and 	confidential 	employees,
and 	certain 	other 	limited 	classes.
In 	late April 	1976, 	SEIU 	filed 	an 	intervening 	request with
the District 	seeking 	recognition 	in 	an 	"operations" 	unit
composed 	of 	the 	four 	job classifications 	of 	custodian,
warehouseman, 	gardener 	and 	gardener/bus 	driver. 	This 	unit
included 	approximately 	50 	of 	the 	District's 	approximately 	310
classified 	employees.
On May 11, 	1976, 	the District notified 	the Public
Employment 	Relations Board 	(hereafter 	Board) 	pursuant 	to
2Section 	3543.6 	provides:
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, 	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....

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section 	3544.I3 and 	emergency rule 	300224 that 	it 	(1) 	did
not 	doubt 	the 	appropriateness 	of 	the 	unit 	sought 	by CSEA, 	(2)
did 	doubt 	the 	appropriateness 	of 	the 	unit 	sought 	by 	SEIU, 	and
(3) 	did 	not 	desire 	a representation election.
Under 	Board 	procedure, 	the 	unit 	dispute 	resulting 	from 	the
two 	employee 	organization 	petitions 	required 	the 	Board 	to
3 Section 	3544.1 provides:
The 	public 	school 	employer 	shall 	grant 	a 	request
for 	recognition 	filed 	pursuant 	to 	Section 	3544 	unless:
(a) 	The 	public 	school 	employer 	desires 	that
representation 	election 	be 	conducted 	or 	doubts 	the
appropriateness 	of 	a 	unit. 	If 	the 	public 	school
employer 	desires 	a 	representation 	election, 	the
question 	of 	representation 	shall 	be 	deemed 	to 	exist
and 	the 	public 	school 	employer 	shall 	notify 	the 	board,
which 	shall 	conduct 	a 	representation 	election 	pursuant
to Section 	3544.7, 	unless 	subdivision 	(c) 	or 	(d)
apply; 	or
(b) 	Another 	employee 	organization 	either 	files 	with
the 	public 	school 	employer 	a 	challenge 	to 	the
appropriateness 	of 	the 	unit 	or 	submits 	a 	competing
claim 	of 	representation 	within 	15 	workdays 	of 	the
posting 	of 	notice 	of 	the 	written 	request. 	The 	claim
shall 	be 	evidenced 	by 	current 	dues 	deductions
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... 	If
the 	claim 	is 	evidenced 	by 	the 	support 	of 	at 	least 	30
percent 	of 	the members 	of 	an 	appropriate 	unit, 	a
question 	of 	representation 	shall 	be 	deemed 	to 	exist
and 	the 	board 	shall 	conduct 	a 	representation
election....
^Board 	emergency 	rule 	30022, 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	30022, 	provided 	at 	the
time 	in 	question:
Notice of 	Employer 	Decision. 	Within 	30
calendar 	days, 	or 	at 	the 	end 	of 	the 	15
workday 	notice 	- 	posting 	period, 	whichever

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conduct 	a 	hearing 	to 	determine 	the 	appropriate 	unit 	or 	units
for 	negotiating.
SEIU 	continued 	to 	organize 	the 	District's 	classified
employees 	after 	the District's 	notice 	to 	the Board. 	Then on
is 	the 	longer 	period, 	the public 	school
employer 	shall, 	in writing, 	notify the
appropriate 	regional 	office 	of 	the 	following:
(a) 	Whether 	or 	not 	the employer 	doubts 	the
appropriateness 	of 	the 	unit 	described 	in 	the
request 	for 	recognition;
(b) 	Whether 	or 	not 	the 	employer 	contests
the 	showing 	of majority support 	of 	the
employee 	organization 	filing 	the 	request 	for
recognition;
(c) 	Whether 	during 	the 	15 workday posting
period 	described 	in Section 	30015, 	any
employee 	organization 	filed 	an 	intervention;
(d) 	Whether 	the employer 	desires 	a
representation 	election.
Currently 	in effect, 	rules 	33190 	and 	33200 	pertain 	to notice of
the 	employer's 	decision. 	Rule 	33190 	provides:
Employer 	Decision 	Regarding 	Request 	for
Recognition and Intervention 	(''Format A" or
"Format B " ) . 	Within 10 calendar days
following 	receipt 	of 	the 	Regional 	Director's
determination 	of 	adequacy 	of 	showing 	of
support, 	the 	employer 	shall 	file 	a decision
with 	the 	regional 	office 	using 	either
"Format A" 	or 	"Format B."...
(a) 	The employer 	shall use 	"Format A" 	if 	it
has 	granted 	voluntary 	recognition 	pursuant
to section 	3544 	and 	3544.1 	of 	the Act....
(b) 	The 	employer 	shall use 	"Format B" 	if 	it
has 	not 	granted 	voluntary 	recognition. 	A
request 	for 	a 	representation 	hearing 	to
resolve 	a 	unit 	dispute may 	be 	raised 	by
"Format 	B" 	or 	by 	the 	employer 	filing 	a
subsequent 	petition 	pursuant 	to
section 33220....

6
October 	21, 	1976, 	SEIU 	filed 	an 	application with 	the 	Board
pursuant 	to 	rule 	333405 requesting 	to 	expand 	its
participation 	at 	the 	unit 	determination 	hearing 	to 	propose 	and
Rule 	33200 	provides:
Employer 	Decision 	Re 	Employee 	Petition 	for
Representation 	Election 	and 	Intervention
("Format C " ) . 	Within 	10 	calendar 	days
following 	the 	receipt 	of 	the 	Regional
Director's 	determination 	on 	showing 	of
support 	the 	employer 	shall 	file 	a 	decision
with 	the 	regional 	office 	using 	"Format 	C."
A 	request 	for 	a 	representation 	hearing 	to
resolve 	a 	unit 	dispute 	may 	be 	raised 	by
"Format 	C" 	or 	by 	the 	employer 	filing 	a
subsequent 	petition 	pursuant 	to
section 	33220....
Admin. 	Code, 	tit. 	8, 	sec. 	33340 provided at 	the
time 	in 	question:
Application 	To 	Join 	Hearing 	As 	A 	Party. 	The
Board 	may 	allow 	an 	employee 	organization
which 	did 	not 	file 	a 	timely 	request 	for
recognition 	or 	intervention 	to 	join 	the
hearing 	as 	a 	party 	provided:
(a) 	The 	employee 	organization 	files 	a
written 	application 	prior 	to 	the
commencement 	of 	the 	hearing 	stating 	facts
showing 	that 	it 	has 	an 	interest 	in 	the 	unit
described 	in 	the 	request 	for 	recognition 	or
an 	intervention; 	and
(b) 	The 	application 	is 	accompanied 	by proof
of 	the 	support 	of 	at 	least 	one 	employee 	in
the 	unit 	described 	by 	the 	request 	or
intervention; 	and
(c) 	The 	Board 	determines 	that 	the 	employee
organization 	has 	a 	substantial 	interest 	in
the 	case 	and 	will 	not 	unduly 	impede 	the
proceeding.
The 	similar 	rule 	currently 	in 	effect 	is 	32165:
Application 	to 	Join 	Hearing 	as 	a 	Limited
Party. 	In 	a 	representation 	proceeding 	the
Board 	agent may 	allow 	any 	person, 	employer,
or 	employee 	organization 	which 	did 	not 	file

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present 	evidence 	regarding 	a 	skilled 	crafts/maintenance 	unit, 	a
food 	services 	unit 	and 	a 	transportation 	unit.
On October 	27, 	1976, 	the Board 	issued a notice that 	the
hearing 	would be 	held on November 	22, 	1976.
In 	the 	few 	days 	immediately prior 	to 	the 	hearing 	the
parties 	explored 	the possibility of 	a 	consent 	agreement. 	SEIU
refused 	to 	agree 	to CSEA's 	proposal 	that 	a consent 	election 	be
held 	in 	the operations 	unit 	for 	which 	SEIU 	originally
petitioned 	and 	that 	CSEA 	be 	given 	voluntary 	recognition 	for 	the
remainder 	of 	the 	employees 	covered 	by CSEA's 	petition.
When 	agreement 	was 	not 	reached 	among 	all 	three parties, 	on
November 	19, 	CSEA 	filed 	an 	amended 	request 	for 	recognition 	with
the 	District 	which 	deleted 	the 	job 	classifications 	for 	which
SEIU 	had 	petitioned. 	At 	a 	special 	District governing 	board
meeting 	held on Saturday, 	November 	20, 	the District 	gave
voluntary 	recognition 	to CSEA for 	the 	unit 	specified 	in 	its
amended 	request 	for 	recognition.
On November 	22, 	the parties 	attended 	the Board 	hearing 	and
informed 	the 	hearing 	officer 	of 	the 	voluntary 	recognition.
CSEA 	then 	proposed 	that 	the 	hearing 	officer 	bring 	the 	parties
together 	to 	conduct 	a 	consent 	election 	in 	the 	remaining
operations 	unit. 	SEIU 	refused 	and 	indicated 	its 	intent 	to 	file
a 	timely 	request 	for 	recognition,
intervention 	or 	petition 	to 	join 	the 	hearing
as 	a 	limited 	party provided:
(a) 	The person, 	employer, 	or employee
organization 	files 	a written 	application
prior 	to 	the 	commencement of 	the 	hearing

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with 	the Board 	the present 	unfair 	practice 	charges 	based 	on 	the
voluntary 	recognition. 	The 	hearing 	officer 	did 	not 	open 	the
record 	and 	submitted 	the 	case 	to 	the 	regional 	director.
As 	of March 	2 	and 	3, 	1977, 	when 	the 	hearing on 	the 	unfair
practice 	charges 	was 	held, 	no 	request 	had been made 	by 	SEIU for
voluntary 	recognition 	in 	the 	operations 	unit. 	No consent
election 	agreement 	had 	been 	requested. 	CSEA 	and 	the 	District
had 	executed 	a contract 	which 	extended 	its 	benefits 	to 	all
classified 	employees 	except 	those 	in 	SEIU's proposed 	operations
unit.
DISCUSSION
SEIU 	alleges 	that 	the 	District 	committed 	an 	unfair 	practice
by 	voluntarily 	recognizing CSEA at 	a 	time when SEIU was
competing 	for 	the 	support 	of 	employees 	in 	the 	recognized 	unit.
SEIU 	alleges 	CSEA committed 	an 	unfair 	practice 	by 	seeking 	and
accepting 	the 	voluntary 	recognition.
In deciding 	the 	issues 	in this 	case, 	the Board 	again notes
the 	change 	in 	policy 	recently 	articulated 	in Centinela Valley
Union High 	School 	District.6 That 	case 	stated 	that 	the
Board's 	policy 	in 	the 	past 	has 	been 	to 	accept without 	question
the 	stipulations 	of 	parties 	regarding 	unit composition, 	so 	long
stating 	facts 	showing 	that 	it 	has 	an
interest 	in the proceedings; 	and
(b) 	The Board 	agent 	determines 	that 	the
person, 	employee organization or 	employer
has 	a 	substantial 	interest 	in 	the 	case 	and
will 	not 	unduly 	impede 	the 	proceeding....
6 (8/7/78) 	PERB Decision No. 	62.

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as 	the 	stipulations 	are 	"not 	inconsistent with 	a 	clear 	and
specific mandate 	in 	the 	unit 	criteria provisions" 	of 	the
EERA.7 Encouraging 	agreement 	among 	the 	parties 	was 	a means
of 	expediting 	represenation elections. 	Also, 	the policy was
adopted 	because 	the 	Board 	itself 	had 	not 	yet 	developed 	any
policies 	interpreting 	and 	applying 	the 	EERA's 	unit
determination 	criteria.
Centinela went 	on 	to state 	that 	in 	the past 	two years 	the
Board 	itself 	has 	decided 	many 	disputed 	unit 	determination 	cases
and 	has 	developed 	certain 	policies 	in 	applying 	section 	3545.
It 	then 	stated:
Henceforth, when 	[the Board] 	has
jurisdiction in a 	representation case, 	it
will 	examine 	stipulations 	between 	the
parties 	to 	determine 	if 	the 	stipulations 	are
inconsistent 	with 	the 	EERA or 	established
Board 	policies. 	Established 	Board 	policies
are 	those 	which 	the 	Board 	has 	developed 	and
consistently 	followed.
This 	holding 	in Centinela 	is 	simply 	a 	restatement 	of 	rule
33000, which provides:
Voluntary Resolution of Disputes. 	It 	is 	the
policy of 	the Board 	to 	encourage 	the 	persons
covered 	by 	the Act 	to 	resolve questions 	of
representation 	by 	agreement 	among
themselves, 	provided 	such agreement 	is 	not
inconsistent 	with 	the 	purposes 	and 	policies
of 	the Act 	and 	the Board. 	(Emphasis 	added.)
Thus 	as 	policies of 	the Board 	are 	developed, 	the parties 	in
future 	stipulations 	should 	conform 	to 	such policies. 	This 	does
not mean 	that 	parties must 	abandon 	stipulations 	upon 	which 	they
7Id. 	at 	pp. 	2 	and 	3; 	Tamalpais Union High 	School District
(7/20/76) 	EERB Decision No. 	1.

10
have 	already 	agreed 	and 	acted. 	However, 	if 	the Board 	has
jurisdiction 	in 	a 	representation case, 	past 	stipulations 	of 	the
parties 	are 	open 	to Board 	scrutiny. 	Representation 	cases 	for
the 	purposes 	of 	Centinela 	and 	this 	decision 	are 	those 	in which
there 	is 	a dispute 	as 	to 	the 	appropriateness 	of 	the 	unit.
SEIU's 	intervention 	invoked 	the 	Board's 	jurisdiction
because 	it 	placed 	the 	appropriate 	unit 	issue 	into dispute.
Under 	section 	3544.l(b),8 when 	a competing 	claim, 	also 	known
as 	an intervention, 	is 	filed, 	the employer 	is precluded from
granting 	voluntary 	recognition 	to 	another 	employee 	organization
and must 	notify 	the Board 	of 	the 	intervention. 	The 	Board 	has
the 	power 	and 	duty under 	section 	3541.3(a) 	"To determine 	in
disputed 	cases, 	or 	otherwise approve, 	appropriate units."
The 	four 	job 	classifications 	for 	which 	SEIU petitioned 	are
among 	those 	which 	the 	Board, 	beginning 	with 	Sweetwater 	Union
High 	School 	District,9 has 	generally placed 	in 	an
operations-support 	services 	unit. 	Thus 	the 	intervention 	raised
a 	question 	of 	representation 	about 	all 	the 	operations-support
services employees.10
8Section 	3544.1 (b) 	is 	quoted 	supra 	at 	note 	3.
9(11/23/76) 	EERB Decision No. 	4. 	See also Fremont
Unified School District 	(12/16/76) 	EERB Decision No. 	6;
San Diego Unified 	School 	District 	(2/18/77) 	EERB 	Decision
No. 	8; 	Antioch Unified School District 	(11/7/77) 	EERB Decision
No. 37.
case 	is 	distinguished 	from Hartnell Community
College District 	(6/5/78) 	PERB Decision No. 	54 	in which 	the
charging 	party 	failed 	to 	file 	an 	intervention 	or 	otherwise
raise 	a question 	of 	representation 	concerning 	the 	unit 	in 	which
the 	voluntary 	recognition 	occurred.
10

In 	this 	case, 	after 	the 	intervention was 	filed 	the District
and CSEA 	stipulated 	to 	the 	voluntary 	recognition 	of CSEA 	in 	a
unit 	consisting 	of 	basically 	all 	classified 	employees,
excluding 	the 	four 	job 	classifications 	of 	custodian,
warehouseman, 	gardener 	and 	gardener/bus 	driver. 	The Board 	has
never 	found 	such 	a 	unit 	to be 	appropriate. 	The 	unit 	does 	not
conform 	to 	the 	instructional 	aides 	(paraprofessional),
operations-support 	services 	and 	office-technical 	and 	business
services 	units 	the 	Board 	has 	generally 	found 	appropriate. 	The
unit 	also 	divides 	the 	operations-support 	services 	employees.
For 	these 	reasons, 	the 	voluntary 	recognition 	should 	not 	have
covered 	only 	a portion 	of 	the operations-support 	services
employees 	and 	excluded 	the 	other 	portion.
The 	Board 	finds 	that 	the 	hearing 	officers 	and 	regional
directors 	should 	in 	the 	future, 	when 	the Board 	has 	jurisdiction
in a 	representation 	case, 	not 	approve 	a 	voluntary 	recognition
to which 	the 	parties 	wish 	to 	stipulate 	if 	the 	unit 	does 	not
conform 	to 	established Board policy. 	In such 	a 	situation, 	the
Board 	should 	investigate 	by 	obtaining 	stipulations 	of 	fact 	or
hold 	a 	hearing 	to 	determine 	the 	appropriateness 	of 	the 	unit 	in
which 	the 	voluntary 	recognition will 	occur.
The Board 	does 	not 	decide 	whether 	the 	conduct 	of 	the
District 	and 	CSEA was 	lawful. 	The 	conduct 	occurred 	pursuant 	to
the 	Board's 	old 	policy on 	voluntary 	recognitions 	and 	other
stipulations. 	Centinela 	and 	this 	decision 	have 	articulated 	a
new policy 	which 	shall 	apply 	in 	the 	future. 	Thus 	a 	decision on
the 	lawfulness 	of 	the 	conduct 	would 	serve 	no purpose.
11

REMEDY
In 	this 	case, 	the 	result of 	following 	the old policy was 	a
voluntary 	recognition 	in 	an 	apparently 	inappropriate 	unit 	and 	a
group of 	approximately 	50 	employees 	who 	have 	remained
unrepresented. 	In order 	to remedy this 	situation, 	the Board
finds 	it 	necessary 	to 	remand 	this 	case 	to 	the executive
director 	who 	shall 	conduct 	a 	unit 	determination 	hearing 	to
determine 	the 	appropriate 	unit 	or 	units 	for 	negotiating. 11
Pursuant 	to 	its 	intervention, 	SEIU may participate 	at 	the
hearing 	with 	regard 	to 	the 	unit 	placement 	of 	the
operations-support 	services 	employees. 	It may also make 	an
application 	pursuant 	to 	rule 	32165 	to 	further 	participate 	at
the 	hearing 	with 	regard 	to 	the 	other 	employees 	in 	issue 	as 	a
result 	of 	CSEA's 	petition. 	SEIU's 	previous 	application 	to 	join
the 	hearing 	as 	a party 	pursuant 	to old 	rule 	33340 	is 	no longer
effective 	because 	that 	rule 	in no longer 	in effect.
Any 	contract 	presently 	in 	effect 	between 	the District 	and
CSEA 	covering 	the 	unit 	in 	which CSEA was 	voluntarily 	recognized
shall 	continue 	in 	effect 	unless 	and 	until 	there 	is 	final
determination by the Board 	that 	the 	unit 	is 	inappropriate, 	or
until 	the 	contract 	expires, 	whichever 	occurs 	sooner.
11The 	Board 	finds 	that 	the 	remand 	is 	the 	proper 	action 	to
be 	taken 	in 	this 	case. 	Rule 	32320 provides:
(a) 	The Board 	itself may:
(1) 	Issue 	a 	decision based 	upon 	the 	record of
hearing, or
(2) 	Affirm, 	modify or 	reverse 	the proposed decision,
order 	the 	record 	reopened 	for 	the 	taking 	of 	further
evidence, 	or 	take such other 	action as 	it considers
proper.... 	(Emphasis 	added.)
12

ORDER
Upon 	the 	foregoing Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
1 . 	This 	case 	is 	remanded 	to 	the 	executive 	director 	who
shall 	conduct 	a 	unit 	determination 	hearing 	to 	determine 	the
appropriate 	classified 	unit 	or 	units 	for 	negotiating .
2. 	Any 	contract 	presently 	in 	effect 	between 	the 	District
and 	CSEA 	covering 	the 	unit 	in which 	CSEA was 	voluntarily
recognized 	shall 	continue 	in 	effect 	unless 	and 	until 	there 	is
a 	final 	determination 	by 	the 	Board 	that 	the 	unit 	is
inappropriate, 	or 	until 	the 	contract 	expires, 	whichever 	occurs
sooner.
By;;/ Ravmond 	J. 	Go n za l es , Member
-7y--- 	• 	I 	'
I
Ha rr y 	Gluck, 	Chairpe r son
Jerilou Cossack 	Twohey, 	Member, 	dissenting:
I 	disagree 	with my 	colleagues 	that 	Rio 	Linda 	can 	be 	dealt
with 	as 	a 	representation 	case 	and 	disposed 	of 	under
Centinela1 with~ut 	any 	consideration 	of 	the 	underlying 	unfair
practice 	charges 	that 	brought 	this 	case 	before 	the 	board 	in 	the
first 	place . 	Because 	this 	is 	an 	unfair 	practice 	case,
Centinela 	is 	inapplicable . 	There 	we 	found 	that 	"[h]enceforth,
when 	[the 	Board] 	has 	jurisdiction 	in a 	representation case, 	it
1 Centinela 	Valley Union )i.!.gh 	School 	District 	(8/7 /78)
PERB Decision No. 	6 i.
13

will 	examine 	stipulations 	between 	the 	parties 	to 	determine 	if
the 	stipulations 	are 	inconsistent 	with 	the 	EERA or 	established
Board policies."
2
I 	do 	not 	believe 	that 	Board Rule 	323203
is 	so 	elastic 	that 	it 	can 	strip 	the 	Board 	of 	its 	statutory 	duty
"[t]o 	investigate 	unfair 	practice 	charges 	or 	alleged 	violations
of 	this 	chapter, 	and 	take 	such 	action 	and make 	such
determinations 	in 	respect 	of 	such 	charges 	or 	alleged 	violations
as 	the 	board 	deems 	necessary 	to 	effectuate 	the 	policies 	of 	this
chapter."4 After 	all, 	the 	Board's 	rule-making 	authority 	is
designed 	by 	statute 	to 	expedite 	the 	administration 	of 	the
EERA,
5
not 	to 	stand 	as 	a 	stumbling 	block 	between 	public
school 	employees 	and 	their 	right 	"to 	select 	one 	employee
organization 	as 	the 	exclusive 	representative 	of 	the 	employees
in 	an 	appropriate 	unit,..."
6
2 Id. at 	4 	(emphasis 	added).
3 Board 	Rule 	32320 	provides 	that 	when 	exceptions 	to 	a
Board 	Agent 	Decision 	are 	filed 	with 	the 	Board:
"(a) 	The 	Board 	itself 	may:
(1) 	Issue 	a 	decision 	based 	upon 	the 	record
of hearing, 	or
(2) 	Affirm, 	modify or 	reverse 	the proposed
decision, 	order 	the 	record 	reopened 	for
the 	taking 	of 	further 	evidence, 	or 	take
such 	other 	action 	as 	it 	considers
proper."
4 Section 3541.3 (i).
5 Section 	3541.3(g) 	gives 	the 	Board 	the 	power 	and 	duty
"[t]o 	adopt 	... 	rules 	and 	regulations 	to 	carry 	out 	the
provisions 	and 	effectuate 	the 	purposes 	and 	policies 	of 	this
chapter." 	(Emphasis 	added.)
6 Section 	3540.
14

7
........
The 	critical 	issue 	presented 	by Rio Linda 	is 	not 	whether
the District 	voluntarily 	recognized 	an 	appropriate 	or 	an
inappropriate 	unit, 	but whether 	CSEA 	and 	the 	District 	violated
the 	EERA by 	agreeing 	on 	any 	unit 	at 	all 	in 	the 	face 	of 	known
competing 	representational 	claims 	by 	SEIU. 	The 	majority 	found
that 	SEIU 	raised 	a question of 	the 	representation 	only 	of 	all
operations-support 	services 	employees, 	and 	only 	by virtue 	of
its 	timely intervention pursuant 	to section 3544.1(b)7
seeking 	recognition 	in 	four 	operations-support 	job
classifications. 	The majority's 	remand 	of 	this 	case 	to 	the
executive 	director 	for 	a 	unit 	determination 	hearing may 	result
in 	SEIU's 	vindication, 	since 	at 	that 	hearing 	SEIU may 	apply 	for
expanded 	recognition 	under 	Board 	rules 	32165 	and 	32166.8
7Section 	3544.l(b) 	provides 	in pertinent part:
The 	public 	school 	employer 	shall 	grant 	a
request 	for 	recognition 	filed 	pursuant 	to
Section 	3544 	unless:
(b) 	Another 	employee organization
either 	files 	with 	the 	public 	school 	employer
a 	challenge 	to 	the 	appropriateness 	of 	the
unit 	or 	submits 	a competing 	claim of
representation 	within 	15 	workdays 	of 	the
posting 	of 	notice 	of 	the 	written 	request.
8 Board 	Rule 	32165 	provides 	that:
In 	a 	representation proceeding 	the Board
agent may allow any person, 	employer, 	or
employee 	organization 	which 	did 	not 	file 	a
timely 	request 	for 	recognition, 	intervention
or 	petition 	to 	join 	the 	hearing 	as 	a 	limited
party 	provided:
(a) 	The person, 	employer, or employee
organization 	files 	a 	written 	application
15 	(cont.)

SEIU's 	ability 	to 	obtain 	relief 	from 	PERB 	should 	not 	depend
upon 	CSEA's 	mistaken 	application 	of 	Board 	Rule 	33100,
g
9
however. 	For 	it 	is 	clear 	that 	under 	the majority's
prior 	to 	the 	commencement 	of 	the 	hearing
stating 	facts 	showing 	that 	it 	has 	an
interest 	in 	the 	proceedings; 	and
(b) 	The 	Board 	agent 	determines 	that 	the
person, 	employee 	organization 	or 	employer
has 	a 	substantial 	interest 	in 	the 	case 	and
will 	not 	unduly 	impede 	the 	proceeding.
The 	Board 	agent 	may 	grant 	participation
in 	the 	hearing 	which 	shall 	be 	limited 	to 	the
right 	to make 	an 	oral 	statement 	on 	the
record 	and 	to 	file 	a 	written 	brief 	subject
to 	such 	conditions 	as 	may 	be 	prescribed.
Board 	Rule 	32166 	provides 	that:
An 	employee 	organization 	may 	be 	allowed 	to
participate 	in 	a 	representation 	hearing
provided:
(a) 	it 	has 	filed 	a written 	application;
and
(b) 	the 	Board 	agent 	determines 	that 	the
organization 	has 	10 	percent 	support 	in 	a
unit 	in 	dispute 	at 	the 	hearing; 	and
(c) 	the 	Board 	agent 	determines 	that 	the
organization 	will 	not 	unduly 	impede 	the
hearing; 	and
(d) 	this 	participation 	is 	limited 	to
discussion 	of 	issues 	raised 	by 	the 	petition,
response 	thereto, 	or 	question 	of
representation.
9 Board 	Rule 	33100 	provides 	in 	pertinent 	part:
(a) 	A 	request 	for 	recognition 	or
intervention 	may 	be 	amended 	to 	correct 	technical
errors 	or 	to 	delete 	job 	descriptions 	from 	the
proposed 	unit 	at 	any 	time 	prior 	to 	the
commencement 	of 	a representation hearing.
(Emphasis 	added.)
16

construction of 	the 	EERA and 	the 	Board's 	rules, 	if 	CSEA had
deleted 	all 	operations-support 	service 	job 	classifications 	from
the 	unit 	it 	sought, 	any question 	of 	representation would 	have
been summarily 	resolved. 	In other 	words, 	by 	shrewd
manipulation 	of Board 	Rule 	33100, 	CSEA could 	have 	foreclosed
PERB 	consideration of 	SEIU's 	claim of 	expanded 	support.
As 	I 	expressed 	in my 	dissent 	in Hartnell,10 and 	reiterate
here, 	the EERA provides 	for 	two ways 	in which questions of
representation can be 	raised. 	Under 	section 	3544.1(b), 	SEIU's
intervention 	raised 	a question of 	representation. 	In 	addition,
the 	District 	and 	SEIU both 	requested 	PERB 	to 	schedule 	a
representation hearing. 11 According 	to 	section 3544.7(a), 	in
pertinent 	part:
(a) 	Upon 	receipt of 	a petition 	filed
pursuant 	to Section 3544.3 or 	3544.5, 	the
board 	shall 	conduct 	such 	inquiries 	and
investigations 	or 	hold 	such 	hearings 	as 	it
shall 	deem necessary 	in 	order 	to 	decide 	the
questions 	raised 	by 	the petition. 	The
determination 	of 	that 	board 	may 	be 	based
upon 	the 	evidence 	adduced 	in 	the 	inquiries,
investigations, 	or 	hearing; 	provided that,
-----------if 	the 	board 	finds 	on 	the 	basi
---
s 	of 	th
a 	--e
------evidence 	that 	questio
----n of 	representation
exists, 	or 	a question of 	representation 	is
deemed 	to 	exist 	pursuant 	to 	subdivision 	(a)
or 	(b) 	of Section 3544.1, 	it shall order
that 	an 	election 	shall 	be 	conducted 	by
secret 	ballot 	and 	it 	shall 	certify 	the
results 	of 	the 	election 	on 	the 	basis 	of
which 	ballot 	choice 	received 	a majority 	of
the 	valid votes 	cast. 	... 	(Emphasis 	added.)
10 Hartnell 	Community College 	District 	(6/5/78) 	PERB
Decision No. 	54.
1 1 On May 	24, 	1976, 	SEIU 	requested 	by 	letter 	that PERB
schedule 	a 	representation 	hearing. 	The 	District 	also 	requested
a representation 	hearing 	on October 	20, 	1976.
17

A question 	of 	representation 	exists 	when 	two 	or 	more 	rival
employee 	organizations 	claim 	the 	support 	of 	employees 	in 	the
same or 	overlapping 	units. 	A long 	line 	of NLRB 	cases 	follow
12
the principle established 	in Midwest Piping and Supply Co.12
that 	an 	employer 	confronted 	with 	conflicting 	representational
claims 	must 	remain neutral 	until 	the 	question 	is 	resolved 	by
the 	procedures 	provided 	by 	statute.
13	13 The 	NLRB 	does 	not
require 	the 	filing of petitions 	to create 	a question of
representation,14 nor 	is 	any 	numerical percentage 	of 	support
required 	to 	raise 	this 	question.15
In 	fact, 	the 	sole 	requirement 	necessary 	to
raise 	a question 	concerning 	representation
within 	the meaning 	of 	the Midwest 	Piping
doctrine...is 	that 	the 	claims 	of 	the 	rival
union must 	not 	be 	clearly 	unsupportable 	and
lacking 	in 	substance.16
As 	articulated 	by 	the 	NLRB 	in 	Belleville 	News 	Democrat,
Inc. :
12(1945) 	63 	NLRB 1060, 	17 	LRRM 40.
1 3 Id . 	at 	1070. 	See 	also e.g. 	Turbodyne Corp. 	(1976) 	226
NLRB 522, 	524 	[93 LRRM 1379]; 	Traub's Market 	(1973) 	205 NLRB
787 	[84 LRRM 1078]; Air Master Corporation, 	Etc. 	(1963) 	142
NLRB 181, 	186-7 	[53 LRRM 1004]; 	Shea Chemical Corporation
(1958) 	121 NLRB 1027, 	1029 	[42 	LRRM 1486]; The Wheland Company
(1958) 	120 NLRB 814, 	817 	[42 LRRM 1054]; 	Novak Logging Company
(1958) 	119 NLRB 1573 	[41 LRRM 1346].
14 Higgins Industries, 	Inc. 	(1964) 	150 NLRB 106, 	119 	[58
LRRM 1059]; 	Air Master Corporation, 	supra; 	Deluxe Metal
Furniture Company 	(1958) 	121 NLRB 995 	[42 LRRM 1470].
15 McKees Rocks Foodland 	(1975) 	216 	NLRB 968, 	972 	[88 	LRRM
1575]; Playskool, Inc. 	(1972) 	195 NLRB 560 	[79 LRRM 1507].
16Playskool , 	inc., 	supra, 	at 560.
18

The Midwest 	Piping 	doctrine 	is 	intended 	to
implement 	the 	[National 	Labor 	Relations]
Act's 	objective 	of 	assuring 	employees 	the
right 	to 	select 	"representatives 	of 	their
own 	choosing." 	It 	prohibits 	an 	employer
faced 	with 	conflicting 	claims 	from 	according
such 	treatment 	to one of 	the 	rivals 	as will
give 	it 	an 	improper 	advantage 	or
disadvantage 	in 	its 	contest 	for 	the
employees' 	favor.17
A colorable 	claim 	of 	employee 	support 	is 	sufficient 	to 	invoke
the Midwest 	Piping 	doctrine 	and 	the 	employer 	neutrality 	it
demands.
PERB 	has 	a 	statutory obligation 	to 	restrain 	employers 	and
employee 	organizations 	from 	striking 	deals 	and 	negotiating
contracts 	when 	a question 	of 	representation 	exists. 	A
colorable 	claim 	to employee 	support 	raises 	a question 	of
representation, 	whether 	or 	not 	the 	latecoming 	challenger 	has
formally 	intervened 	pursuant 	to 	section 	3544.1(b).18 Since
the 	facts 	here 	indicate 	that 	SEIU's 	continued 	organizational
campaign 	resulted 	in 	employee 	support 	in 	additional 	job
classifications,119 9 I would 	find 	that 	the 	District's 	voluntary
17Belleville 	News Democrat, 	Inc. 	(1972) 	195 NLRB 431, 	436
[79 	LRRM 1376].
18Section 	3544.l(b) 	is 	set 	forth at 	note 7, 	supra.
1 9 0n October 	21, 	1976, 	SEIU 	informed 	EERB, 	CSEA and 	the
District 	that 	it 	intended 	to 	introduce 	evidence 	of 	additional
support 	at 	the 	hearing 	scheduled 	for 	November 	22, 	1976. 	Three
authorization 	cards 	were 	included 	in 	the 	letter 	SEIU 	sent,
implying 	its 	intention 	to 	invoke 	the 	"one card" 	rule. 	Former
Board 	Rule 	33340 	provided 	that:
The 	Board 	may 	allow 	an 	employee 	organization
which did 	not 	file 	a 	timely 	request 	for
recognition 	or 	intervention 	to 	join 	the
hearing 	as 	a 	party provided:
(cont.)
19

........
. . . . . . . .
recognition 	of 	CSEA 	interfered 	with 	the 	rights 	of 	its 	employees
and 	SEIU 	and 	gave 	unlawful 	support 	to CSEA. 20 In 	addition, 	I
would 	find 	that CSEA violated 	sections 	3543.6(a) 	and 	( b ) 2 1 by
unlawfully 	entering 	into 	a 	recognition 	agreement 	with 	the
District 	while 	a 	question 	of 	representation 	was 	pending 	before
PERB.
(b) 	The 	application 	is 	accompanied 	by proof
of 	the 	support 	of 	at 	least 	one 	employee 	in
the 	unit 	described 	by 	the 	request 	or
intervention; 	...
20SEIU 	alleged 	that 	the 	District's 	voluntary 	recognition
of CSEA violated sections 3543.5(a), 	(b) 	and 	(d), which provide:
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.
(d) 	Dominate 	or 	interfere with 	the 	formation
or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
21Sections 	3543.6(a) 	and 	(b) 	provide 	that:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
(a) 	Cause or 	attempt to cause 	a public
school 	employer 	to violate 	Section 	3543.5.
(cont.)
20

If 	Board 	Rule 	33 00 0	., 22 is 	interpreted 	to 	condone
sleight-of-hand 	recognition 	agreements 	in 	spite 	of 	existing
questions 	of 	recognition, 	the 	purposes 	of 	the 	EERA are
undermined . 	This 	tension 	between 	the 	rule 	and 	the 	law 23 it
supposedly 	imple ments 	creates 	an 	intolerable 	situation 	in which
employers 	and 	e mployee 	organizations 	are 	effectively 	rewarded
for 	embracing 	each other, 	however 	prematurely, 	and 	no matter
what 	the 	employees 	themselves 	desire .
Ac cordingly, 	I 	dissent.
Jerilou Cossack 	Twohey, 	Member 	U/
(b) 	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 .
22 Board 	Rule 	33000 	provides 	that :
It 	is 	the 	policy of 	the 	Board 	to 	encourage
the 	persons 	covered 	by 	the 	Act 	to 	resolve
questions 	of 	representation 	by 	agree ment
a mong 	the mselves, 	provided 	such 	agreement 	is
not 	inconsistent 	with 	the 	purposes 	and
policies 	of 	the 	Act 	and 	the 	Board.
2 3
-21-
Rules 	promulgated 	by 	administrative 	agencies 	may 	not 	be
incompatible 	with 	the 	purposes 	of 	the 	legislation 	they 	are
designed 	to 	implement. 	See 	e . g . , 	Cooper 	v . 	Swoap 	(1974) 	11
Cal. 	3d 856, 	864 	(524 	P . 	2d 	97, 	115 Cal . 	Rptr . 	1) 	(U . S . 	cert .
den. 	419 	U.S. 	1022); 	Clean Air Constituency v . 	California State
Air Resources Board 	( 19 74) 	11 Cal. 	3d 	8 01, 	815 	(523 	P. 	2d 	61 7,
114 Cal. 	Rptr. 	577]; 	Mo rris v. 	Williams 	(1 9 67) 	67 	Cal. 	2d 7 33 ,
74 8 	[4 33 	P. 	2d 6 9 7, 	6 3 	Cal. 	Rptr. 	6 89 ]; 	Whit comb Ho tel, 	Inc . 	v.
Cal. 	Emp. 	Com. 	( 19 44 ) 	24 	Cal. 	2d 75 3 , 	757 	[151 P. 	2d 2 33 ].

)
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
SERVICE EMPLOYES INTERNATIONAL UNION,
Local 22, AFL-CIO,
Charging Party,
vs.
RIO LINDA UNION SCHOOL DISTRICT,
Respondent,
and
RIO LINDA CHAPTER 290, CALIFORNIA
SCHOOL EMPLOYEES ASSOCIATION,
Respondento
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Unfair Practice Case Nos.
S-CE-18
S-CO-8
Appearances: Van Bourg, Allen, Weinberg and Roger by Robert J. Bezemek for
Service Employees International Union, Local 22, AFL-CIO; Robert S.
Shelbourne, Deputy County Counsel, Sacramento County for Rio Linda
Union School District; Robert Blake, Attorney, for California School
Employees Association.
Before Terry Filliman, Hearing Officer.
STATEMENT OF THE CASE
On December 3, 1976, Service Employees International Union, Local 22,
AFL-CIO (hereinafter Charging Party or Local 22) filed an unfair practice
charge against the Rio Linda Union School District (hereinafter Respondent
or District) alleging violations of Sections 3543.5(a), (b) and (d) of the
Educational Employment Relations Act (hereinafter EERA or Act).1
1Government Code Section 3540 et seq. 	All statutory citations are to
Government Code Sections unless otherwise noted.

2
On December 20, 1976, Charging Party filed an unfair practice charge
against California School Employees Association, Chapter 290 (hereinafter
Respondent or CSEA) alleging violation of Sections 3543.6(a) and (b) of
the Act.
Both charges arise from the same factual setting. 	The essence of
the charges is that the District violated the Act by granting recognition
to CSEA at a time when both CSEA and Local 22 were competing for support.
The recognition occurred following receipt of an amendment to CSEA's
petition whereby the four job classifications covered by Local 22's
intervention petition were deleted from CSEA's wall-to-wall unit. 	The alleged
violation is grounded upon the bases that: 	(1) the recognition occurred at an
illegal meeting; 	(2) a question of representation was pending before the
EERB; 	(3) a representation hearing was imminent; 	(4) the recognition was
motivated to avoid a hearing or election; 	(5) the recognition occurred in an
inappropriate unit; and (6) that recognition occurred over the objection
of the Charging Party which had demonstrated a substantial interest in the
employees recognized and represented a majority of employees in an appropriate
unit. 	Respondents filed answers denying that unfair practices had been
committed and specifically denying that the District was faced with a real
question of representation outside of the petition filed by Local 22 for an
operations unit.
On December 20, 1976, the Educational Employment Relations Board
(hereinafter EERB or Board) 	issued an 	order directing the Charging Party
to particularize the charges.
On January 6, 1977, Local 22 filed a consolidated particularized
statement of charges.

3
On January 21, 	1977, 	the District filed an amended answer to the
particularized charge.
On January 27, 	an informal conference was conducted but no
settlement was reached.
On March 2 and 3, 	1977, a consolidated hearing was held in
Sacramento, California. 	CSEA failed to file an amended answer to the
particularized charge prior to the date of the formal hearing. 	An
amended answer was filed at the commencement of the hearing. 	All
parties participated in the hearing and were given full opportunity to
present written evidence and call witnesses bearing on the issues.
Between April 11 and May 6, 	1977, all parties filed post-hearing
briefs.
2At the hearing Local 22 moved to have all charges contained in the
particularized statement of charges as against CSEA be deemed
admitted because CSEA did not file an amended answer pursuant to EERB
rules. 	At the same time, both respondents moved to dismiss the charge
on the basis that it does not assert that any violation of the
EERA or Board Rules and Regulations was 	committed. 	Finally, 	CSEA
urged that if the dismissal was not granted, 	that the issue should be
appealed immediately to the Board itself without continuing the hearing
pursuant to Cal. Admin. Code, Tit. 8, Section 35014."
The motion by Local 22 to have the charges in the particularized
statement against CSEA be deemed admitted was denied on the basis that
Cal. Admin. Code, Tit. 8, Section 35008 is discretionary and the Charging
Party made no showing of prejudice should the late answer be accepted.
Similarly, 	the motions by both Respondents to dismiss the charge
without hearing were denied. 	A motion to appeal the denial of the
dismissal immediately to the Board itself pursuant to Cal. Admin. Code,
Tit. 8, Section 32200 was not concurred in by the hearing officer.

4
Upon the entire record and from observations of witnesses, 	the
hearing officer makes the following findings and conclusions.
FINDINGS OF FACT
The parties stipulated that Local 22 and CSEA are employee
organizations within the meaning of Section 3540. l(d) and Rio Linda
Union School District is a public school employer within the meaning
of Section 3540.l(k). 	These stipulations are accepted without inquiry.
The District is located in Sacramento County, California. 	It
employs approximately 310 classified employees, including 48 operations
employees, 12 skilled crafts employees, 18 transportation employees,
37 food service employees, 141 instructional aides, and 54 clerical
employees.
Petitions for Recognition (CSEA) and Intervention (Local 22)
In late February, 1976, Local 22 began organizing custodians,
gardeners and warehousemen in the District.
During February and March, 1976, the District developed a program
to provide information to classified employees concerning the implementa-
tion of the Act. 	The program included the preparation and dissemination
of an informational brochure entitled, 	"Uncle Funky's Magic Book and
SB 160." 	The publication was previewed with representatives 	of CSEA
and the California Teachers Association to determine whether the
organizations had any objections to proposed district presentations to staff.
Informational meetings were conducted at each school during March, 	1976.

4
In an uncontested statement, the superintendent stated that neither the
American Federation of Teachers nor SEIU3 participated in the meetings
because he had no knowledge of any organizational activities within the
district by those two organizations.
On April 5, 1976, CSEA, filed a request for recognition with the school
district for a unit including all classified employees, excluding management,
supervisory and confidential employees and certain other limited classes.
The showing of interest filed by CSEA, amounted to approximately 96 percent of the
classified employees in the proposed unit. 	On April 9, CSEA filed an amended
request for recognition in the broad classified unit, deleting short-term and
substitute employees from its original petition.
On April 28, 1976, Local 22 filed an intervening request with the District
seeking recognition in an "operations unit" composed of four job classifications:
custodian, warehouseman, gardener and gardener/bus driver. 	The unit included
approximately 50 classified employees. Accompanying the request was a petition
containing names and signatures of 16 classified employees within the unit.
On May 11, 1976, the District filed an employer's response with EERB
pursuant to Emergency Rule 30022 indicating its refusal to recognize either Local
22 or CSEA, as the exclusive representative of its employees. The District stated
that it (1) did not doubt the appropriateness of the wall-to-wall unit sought by
CSEA, 	(2) did doubt the appropriateness of the Local 22 intervention and (3)
did not desire a representation election.4
3Charging Party is a local affiliated with SEIU.
4Official notice is taken that EERB procedures require the processing of
representation, case disputes based upon the chronological order of
requests for recognition filed in each regional office. 	Rio Linda case
S-R-122 was scheduled for hearing on November 22, 1976. 	All parties
were notified of the pending hearing by written notice served on
October 27, 1976.
-5-

Local 22 Continued. Organizing After ·Filiiig ·Deadline
•
The record does not reveal any further activities by 	either
employee 	organization between April 	28 	and 	late 	June, 	1976.
On June 17, Local 22 officials met with several employees to
develop a proposal to be submitted for school board consideration on
July 12, calling for salary increases and benefits for custodial,
gardening and warehouse employees. 	The proposal was submitted on
June 30. 	On July 12, a presentation was made to the school board.
During July, Fat Hallahan, business representative for Local 22,
conducted two or three meetings in the maintenance shop, which were
attended by electricians, carpenters, maintenance men, bus drivers and
gardeners.
On August 3, 1976, Mr. Hallahan forwarded a letter to Mr. William
Murchison, personnel director of the Rio Linda School District, requesting
information about classified enployee job descriptions. 	On the same
date, Hallahan presented a letter to the Board of Education on behalf of
all classified employees relating to their concerns about salary and step
increases for the 1976-77 fiscal year.
On September 13, 1976, Mr. Hallahan again presented to the School
Board salary proposals for all classified employees. 	Hallahan requested
the Board to grant an interim wage increase to all classified employees.
The Board declined, stating that it was waiting for EERB to set a
date for a hearing concerning the rival petitions.
-6-

5
On September 17, District Superintendent Floratos responded to a form
questionnaire forwarded by the EERB Sacramento Regional Office supplying
certain information and clarification of the employer decision which had been
filed earlier. 	He noted that at the time the CSEA petition was filed,
approximately 217 classified employees were in the proposed unit. Of
those, 98.7% signed CSEA authorization petitions. 	He also indicated that
the unit proposed by Local 22 included approximately 46 employees and
stated the district doubted the appropriateness of the "operations" unit
because it excluded stock-clerk, deliveryman, gardener/maintenance man,
bus driver, head bus driver, assistant mechanic and head mechanic.
Copies of the letter were served on Local 22 and CSEA.
During September, October and November, 1976, Hallahan met with
cafeteria employees, operations employees, maintenance employees,
transportation employees and instructional aides. 	During the meetings, he
distributed authorization cards and explained to employees how they could
be represented in separate negotiating units. 	During this period, several
other classified employees also distributed Local 22 authorization cards.
5Forty-seven signed authorization cards were returned to Pat Hallahan.
Of the 47 cards,45 were from employees who work in operations, skilled
crafts, transportation and food services. 	The remaining 2 were from aides.
Five of the 45 cards were signed by custodians and duplicate the original
petition for intervention filed by Local 22. 	Considering the 40 remaining
authorization cards, together with the 16 signatures on the original
petition for intervention, a total of 56 classified employees expressed
interest in Local 22 by late October, 1976.
-7-

At least three witnesses—Larry Gordon, Dan McAleer and Kathleen
Abbott—testified that they were informed that by signing SEIU cards
they were not committed to vote for SEIU but were given the right to
get an election. 	Of the employees who signed SEIU cards, a majority
had previously signed the CSEA petition.
Parties File Requests with EERB Prior to Unit Determination Hearing
On September 17, 	Superintendent Floratos sent a letter to the EERB
Sacramento Regional Office requesting an advisory opinion regarding the
legality 	of an employee organization splitting a previously filed
petition 	for 	recognition into 	two 	separate requests.6
On October 21, Local 22 sent a letter to the EERB Sacramento Office. 	In
the letter, Hallahan noted Local 22 had received a strong showing of support
from several groups of employees in the Rio Linda District in addition to
those petitioned for on April 28. 	Mr. Hallahan requested permission pursuant
Cal. Admin. Code, Tit. 8, Section 333407 to introduce evidence on behalf
6 No response was received per the policy of EERB not to render written
advisory opinions. 	Oral advice rendered by staff in an attempt to
assist a party is in no manner binding upon the Board itself when
adjudging the same facts in a disputed case.
'Section 33340 states: Application To Join Hearing As A Party. 	The Board may.
allow an employee organization which did not file a timely request for
recognition of intervention to join the hearing as a party provided:
(a) The employee organization files a written application prior to the
commencement of the hearing stating facts showing that it has an
interest in the unit described in the request for recognition or an
intervention; and
(b) The application is accompanied by proof of the support of at least
one employee in the unit described by the request or intervention;
and
(c) The Board determines that the employee organization has a substantial
interest in the case and will not unduly impede the proceeding.
-8-

of three additional proposed units of employees at the future unit
determination hearing. 	The units included skilled crafts/maintenance,
food services and transportation. 	Attached to the request was one
authorization card from an employee in 	each of the proposed units.
Local 22 stated that it was prepared to demonstrate a sufficient showing
of interest in these units at the unit determination hearing and to
qualify eventually to be on the ballot for elections in those units
if the units were deemed appropriate by the Board. 	Copies of the letter
were sent to the District and CSEA. 	A single page petition signed by ten
maintenance and operations employees indicating their interest in being
represented in a separate unit was attached to the letter.8
On October 27, 1976, the EERB issued a Notice of Hearing and prehearing
conference in case S-R-122. 	The hearing was scheduled to be held on
November 22, 1976.
Local 22 Prepares to Contend for Additional Employees
During late October and early November, both organizations stepped
up their representation campaigns. 	On November 10, Hallahan met with
William Murchison to obtain information from the District in order to
allow Local 22 to prepare for the upcoming EERB hearing.
During the meetings, Hallahan reaffirmed Local 22's intent as stated
in its October 21 letter to argue on behalf of negotiating units different
than that proposed by their intervention; namely, a maintenance and
On November 3, Hallahan delivered to the EERB Sacramento Regional Office
three additional pages of a petition signed by District employees requesting
an election. 	-9-

.' .	.
./
9
operations unit, 	a transportation unit, a food services unit, 	and an aides
unit. 	Local 22 requested a variety of information regarding these
classified employees.
In a hearsay statement, Hallahan attributed a statement to Murchison that
he saw a justification for a separate unit of blue collar employees,
specifically maintenance and operations. 	Further, Hallahan related that
Murchison stated he was aware that Local 22 had quite a bit of union
activity among the different units and he had not heard or seen anything
of CSEA, and the District wondered why they had not been out. 	He
speculated that CSEA, and Local 22 had cut a deal and that CSEA, was going
to back out of the District. 	Murchison on the other hand testified that
he referred to what CSEA, might do statewide and his statements did not relate
directly to the Rio Linda Union School District. 	While the hearsay
statement infers a District position as to the appropriateness of the
operations unit, it is unsupported by other evidence and is contradicted
by the District's official position on the units.9
On November 12, 	1976, a meeting of classified employees was held
at the Frontier School. 	The meeting was called by Floratos to discuss
the EERA. 	Approximately 18 employees attended. 	During the meeting,
Floratos explained the District's position that instructional aides should
not be represented in a separate unit and only one organization had
petitioned to represent aides. 	Hallahan was present and stated that in
view of Pittsburgh Unified School District 	(EERB Decision No.3
98 Cal. Adm. Code 35026 allows inclusion of hearsay evidence but will not
allow unconfirmed hearsay to form the basis of a finding of fact unless
admissible in civil court.
-10-

October 14, 1976) it was possible for aides to be represented in a separate
negotiating unit. 	He further explained that Local 22 would be arguing on
behalf of various units at the EERB hearing. 	Two aides filed authorization
cards with Hallahan.
During the week of November 15, Robert Shelbourne, counsel for the
District, telephoned Hallahan to discuss possibilities for settlement of
the case. 	Shelborne 	asked whether Local 22 would agree to two negotiating
units: 	the custodial unit as filed for by Local 22 and a residual unit.
Hallahan notified Shelbourne that Local 22 wanted to argue on behalf of
separate units at the hearing.
On November 18, a joint meeting was conducted by Local 22 and CSEA
at the Rio Linda School. 	Hallahan represented Local 22 and Ron McGhee
represented CSEA before approximately 40 classified employees. 	During the
meeting, Hallahan stated that Local 22 supported the concept of separate
units as opposed to a wall-to-wall unit which CSEA supported. 	On the
same day, the two individuals also conducted a debate at the maintenance
shop where maintenance employees were present.
Employer Accepts CSEA Amended Unit Petition
In an uncontradicted hearsay statement, Ted Costa, a former CSEA
field representative, testified that Eva McLain, the assistant field
director for the Sacramento Office of CSEA, told him that she had put
together a smaller wall-to-wall unit than originally petitioned for in
Rio Linda and that it would be recognized by the school district and could
effectively keep SEIU from litigating the unit question at a hearing.
Little weight is given to this testimony because scant evidence supported
the hearsay statement as to intent of either CSEA or the District.
-11-

On November 18, Eva McLain was contacted by the Board agent assigned
to conduct the hearing scheduled for November 22. 	The Board agent
indicated that he was going to be contacting all parties to the
hearing asking their consideration in working out a consent agreement due
to an EERB backlog of cases and the Board's impetus toward settlement
wherever possible. 	McLain responded to the Board agent that she would propose
a consent election agreement for an operations unit as filed by Local 22 and
split the original CSEA 	petition to delete the 48 operations employees
covered by Local 22's intervention in order to gain exclusive recognition
for the remaining comprehensive unit. 	The same day, McLain called
Superintendent Floratos and indicated her intent on behalf of CSEA to amend
their original request for recognition. 	Floratos indicated that he would
contact the District's counsel. 	Several hours later, Mr. Shelbourne
contacted McLain and verified her conversation with the superintendent.
The Board agent also contacted Hallahan who stated that Local 22 would not
enter into a consent agreement on the units being considered.
On November 19 at approximately 8:30 a.m. McLain hand-delivered
an amended petition to Mr. Floratos' secretary. 	In addition, she hand-
delivered the amended petition to the Board agent and to the
Local 22 office. 	The amended petition was filed pursuant to Cal. Admin.
Code, Tit. 8, Section 33100(a). 	The amended petition was not posted by the
District.
It is found that McLain did not propose or discuss setting up a
special Board meeting to act on the amended petition during her phone
conversation with Mr. Floratos on November 18. 	During their phone
conservation, Mr. Floratos did not indicate to McLain whether or not
the District would recognize CSEA's amended petition. 	Following his
-12-

phone conversation with McLain, Floratos contacted the president of the
Board of Education on November 18, requesting that the president call a
special meeting to consider the anticipated amended petition. 	The regular
bi-monthly meeting of the Board was scheduled for November 22. 	Mr. Floratos
testified that he requested the meeting to be called prior to actually
receiving the CSEA petition because it was his understanding following
his conversation with McLain and the conversation by Mr. 	Shelbourne and
McLain that the amended petition would be filed prior to Saturday November 20,
the date proposed for the special Board meeting. 	No facts are found to
contradict this testimony. 	McLain stated to Shelbourne during their
conversation that the amended petition would be filed in the superintendent's
office early the morning of November 19.
•
On the same morning (November 19) that Mrs. McLain filed the amended
CSEA petition with the District, Hallahan was meeting with Mr. Murchison at the
District office. 	Floratos called Hallahan into his office to explain to him
that a Board meeting had been called for the next day to consider the proposed
amendment by CSEA.. 	Hallahan protested, explaining that it was an effort to
circumvent the entire process regarding the unit determination hearing, especially
since the hearing was scheduled for the following Monday. 	He also stated
that it was an obvious effort to block Local 22 from arguing on behalf of
other units at the hearing and to prevent employees from voting in separate
units. 	Floratos stated that he believed the amended petition was lawful
and could be rightfully considered by the School Board.
Floratos testified that the notice of the special Board meeting
was posted at all school locations on November 19. 	The School Board met
in special hearing on November 20 to consider recognizing CSEA in a
-13-

comprehensive unit excluding those job descriptions originally filed for
by Local 22 in its intervention. 	Approximately 50 employees were in
attendance. 	Five or six employees spoke in favor of having an election
following a unit hearing and against the proposed Board action. 	Hallahan
spoke against the motion and he] d up a stack of authorization cards
indicating that numerous employees, namely maintenance, transportation,
cafeteria and aides wanted the opportunity for an election. 	The
authorization cards were neither presented nor shown to the Board.
Eva McLain spoke for CSEA and mentioned that 98 percent of the classified employees
had signed the CSEA petition. 	Hallahan indicated that of the 98 percent, many
had also signed cards of Local 22. 	Following the discussion, the School
Board voted unanimously to approve the amended CSEA petition to
recognize the amended unit.
District Executes Contract with CSEA
On November 22, the parties attended the scheduled EERB hearing
and informed the hearing officer that a voluntary recognition had
occurred pursuant to the amended petition filed with the EERB on
November 19. 	At that time, CSEA proposed that the hearing officer
bring the parties together to conduct a consent election in the
remaining operations unit. 	SEIU refused and indicated its intent to
file an unfair practice complaint. 	Based upon the previous events,
the hearing officer did not open the record and submitted the case
back to the regional director.
The hearing officer apprised Local 22 of its right to file an appeal
of his inaction to the Sacramento Regional Director. 	On December 2,
counsel for Local 22 filed a motion to proceed to hearing with the
Sacramento Regional Director. 	On January 11, 1977, Local 22 filed
another letter with the Regional Director relating to the same subject.
-14-

•
The regional office took no action. 	No appeals were filed with the
Board itself.
Subsequent to November 20, SEIU continued organizing, conducted
additional meetings, and solicited support from maintenance, transportation,
operations and cafeteria employees. 	As of the date of the hearing, no
request was made by Local 22 for voluntary recognition of its operations
unit nor has CSEA, requested recognition. 	No consent election agreement has
been requested. 	Following recognition, CSEA and the District executed a
contract. 	Benefits under this contract have been extended to classified
employees except those covered by the Local 22 proposed operations unit.
ISSUES
A. 	Charges Against the District
Did the District's voluntary recognition of CSEA as the exclusive
representative of the comprehensive unit excluding operations employees:
1. 	Contribute unlawful support to CSEA (or encourage employees to
join CSEA in preference to Local 22) in violation of Section 3543.5(d)
of the Act; or
2. 	Deny Local 22 its rights guaranteed by the Act in violation of
Section 3543.5(b); or
3. 	Interfere with, restrain or coerce employees because of their
exercise of rights under the Act in violation of Section 3543.5(a).
The above issues may be resolved only upon determination of the
following subissues.
a. 	Did the employer's recognition occur at a time when activities
by Local 22 raised a real question of representation?
(1) 	Does the NLRB precedent under Midwest Piping Co.
and similar cases apply with equal force in determining
when a "question concerning representation" exists
under the EERA?
-15-

b. 	Was the recognition given to preclude Local 22 from
participating at the scheduled EERB hearing or election?
c. 	Was the recognition granted to one of two competing labor
organizations in a presumptively inappropriate unit? 	If so, what is the
appropriate remedy?
d. 	Was recognition granted to a labor organization which did
not have an uncoerced majority support in the unit recognized?
e. 	Was the recognition accomplished at an illegally called
School Board meeting? 	If so, what is the appropriate remedy?
B. 	Charges Against CSEA
1. 	Did CSEA cause or attempt to cause the District to violate
Section 3543.5(a), (b) and (d) in violation of Section 3543.6(a).
2. 	Did CSEA interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by the statute in violation
of Section 3543.6(b).
The issues relating to the charges against CSEA may be resolved
only upon the resolution of the same subissues underlying the charges
against the District.
CONCLUSIONS
Although extensive testimony was taken in this matter, 	the ultimate
conclusion as to whether unfair practices have occurred will rest primarily
upon interpretation of procedural rules, and established fundamental
policy as well as cumulative facts. 	However, because of the
abundance of facts, a summarized version of the relevant facts and
laws is presented. 	The conclusions of law as to each allegation are made
with the following summary in mind:
-16-

1. CSEA filed a petition supported by an uncontested at least 50 percent
support in a comprehensive classified unit in accordance with Section 3544 and
Cal. Admin. Code, Tit. 8, Section 33050.
2. Local 22 filed an intervention in an operations unit which covered a
portion of the unit petitioned for by CSEA. 	The intervention was accompanied
by an uncontested "at least 30 percent" showing of support and was timely
filed pursuant to Section 3544.1(b) and Cal. Admin. Code, Tit. 8, Section 33070.
3. The District did not recognize either unit petitioned for at the time
it filed an employer's decision on May 11, 1976, pursuant to Cal. Admin.
Code, Tit. 8, Section 30022.
4. Approximately 7 months transpired between the employee organizations'
request for recognition and intervention and the date of the scheduled EERB
hearing to resolve the unit dispute.
5. Official notice is taken that Cal. Admin. Code, Tit. 8, Section 33100(b)
extended an opportunity to Local 22 to amend its original intervention to add
additional job classifications only up to the date of the employer decision
(May 11).
6. While no such interpretation has been made by the EERB, it will be
assumed that Cal. Admin. Code, Tit. 8, Section 33340 does allow a party or
prospective party to expand its original request or to propose new units with
the approval of the hearing officer once an EERB hearing commences (hearing
scheduled for November 22) .
7. Local 22 did continue organizing additional employees subsequent
to April 28 in anticipation of proposing additional negotiating units at a
future EERB hearing.
8. Both CSEA and the District knew at least by October 21 of Local 22's
proposed actions at the prospective EERB hearing.
-17-

•
9. 	Local 22 obtained signed authorization cards from approximately
40 employees in job classifications outside title unit covered by its
original intervention (an operations unit). 	The organization had at
least one signed authorization card from employees within the maintenance,
food services and transportation groupings.
10. Official notice is taken that Cal. Admin. Code, Tit. 8, Section 33100(a)
allows amendments of a petition to correct errors or to delete job
positions at any time prior to the commencement of a representation
hearing. 	No posting is required.
11. CSEA amended its original petition into two petitions; i.e., an
operations unit identical to Local 22's petition and a residual unit,
purportedly under the authority of Cal. Admin. Code, Tit. 8, Section 33100(a).
12. At a specially called meeting, the District granted recognition
in the residual unit on the basis that no existing intervention covered any
positions overlapping with the amended unit. 	The recognition was granted
immediately prior to the scheduled EERB hearing over the protests of
Local 22.
13. The record contains no showing of hostile motive on the part of
either the District or CSEA to deprive Local 22 from participating in
an EERB hearing.
14. 	CSEA and the District executed a contract for the employees in
the unit recognized.
15. 	No EERB hearing was held. 	No disposition of the employees in
the operations unit covered by the Local 22 intervention had occurred
at the close of the hearing.
-18-

CONCLUSIONS OF LAW
The Charges Against the District
1. 	Section 3543.5(d)
The main thrust of the charge is that the District, by recognizing
CSEA in an amended unit at a time when the rival organizations were competing
for employees and when an EERB representation case hearing had been
scheduled, has assisted CSEA's organizational effort and has discriminated
against Local 22 in violation of Section 3543.5(d) .10 While the
Charging Party does not specify which provisions are allegedly violated,
the first clause of this section is not considered because there is no
allegation that the District was involved in the formation of CSEA or has
attempted to influence management of the organization. 	Therefore, the
charge shall be limited to the second and third clauses of this section.
The second clause , 	"contribute financial or other support" , has
been found by the Board to be identical to Section 8(a)(2) of the
National Labor Relations Act, as amended (hereinafter the NLRA; 29 USC 141
et. seq.) 	(See San Juan USD, EERB Decision No. 12, at page 8,9.)
The third clause appears to be somewhat similar to Section 8(a) (3)
of the NLRA, as amended.11
1010Section 3543.5(d) provides: "It shall be unlawful for public school
employer to dominate or interfere with the formation or administration
of any employee organization, or contribute financial or other support
to it or in any way encourage employees to join any organization in
preference to another." 	(emphasis added).
11Section 8(a)(3) (29 USC Section 158 (a)(3)) provides in part" ...by
discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in
any labor organization..."
-19-

In its early decisions the EERB determined that where provisions
of federal labor legislation are parallel to the Act, 	the use of the
federal statutes 	and decisions arising therefrom to interpret identical
provisions is desirable.12
Local 22 supports its claim with a plethora of NLRB cases
emanating from the [Midwest Piping Co., Inc. 63 NLRB 1060, 17
LRRM 40 (1945) ], which holds that an employer is required to maintain
strict neutrality when a question concerning representation is pending
between two rival labor organizations.
Respondent District counters that recognition was granted to
CSEA strictly according to EERB procedural requirements, at a time when
no question concerning representation existed as to the amended unit.
Both Respondents further contend that "The Federal Labor Management Act
is so fundamentally different from the Rodda Act and its implementing
regulations that cases construing it and NLRB regulations are of no
precedent value whatsoever."
At this point, 	consideration of the subissues upon which Charging Party
rests its "unlawful support" clause is necessary.
A. Did the employer's recognition occur at a time when a "real question
concerning representation" existed? Does the line of National Labor Relations
Board (NLRB) precedent under Midwest Piping apply with equal force in
determining when such a "question concerning representation" exists under
the EERA?
12Se e Los Angeles Unified School District, EERB Decision No. 5,
November 24 	1976. 	See also Firefighters Union v. City of Vallejo,
12 C. 3rd 608, 87 LRRM 2453 (1974).
-20-

The second question must be addressed first:
Local 22 asserts that the longstanding Midwest Piping doctrine
under the NLRB is applicable to the present case. 	In Midwest Piping,
supra, the employer recognized one of two rival unions which had filed
representation petitions with the NLRB. 	A contract was then negotiated.
The NLRB held that the contract violated enployee rights under Section 7 and
employer obligations under Section 8(a)(l)13
to avoid unlawful interference and
unlawful support under 8(a)(2) of the NLRA. 	In its decision the Board
emphasized the exclusive jurisdiction of the NLRB over a case once conflicting
claims of representation were filed:
The Congress has clothed the Board with the exclusive power
to investigate and determine representatives for the purposes
of collective bargaining....In this case.. .the respondent elected
to disregard the orderly,representative procedure set up by the
Board under the Act for which both unions had heretofore
petitioned tie Board..., such' conduct by tie respondent
contravenes the letter and spirit of the Act.. .Id., at 1070.
In Shea Chemical Corp. [121 NLRB 1027, LRRM 1486 (1958)]. 	the NLRB
upheld and slightly refined Midwest Piping by stating:
Upon a presentation of a rival or conflicting claim which raises
a real question concerning representation, an employer many not go
so far as to bargain collectively with tie incumbent (or any other)
union unless and until the question concerning representation has
been settled by tie 	Board. 	(emphasis added) Id. at 1028.
"While certain aspects of tie Midwest Piping doctrine 	have been disputed by
federal appellate courts, it is clear under tie NLRB that tie employer
should not interfere 	once a real question concerning representation
13Section 3543.5(a) is the general corollary to 8(a)(l). See separate
discussion on page 39.
-21-

15sec
exists.14 The question is, 	then, when does a real question of representation
COUIIIPDCe.
The term "question of representation" is found in the NLRA, 	as
amended, 	and the EERA.
While the term is not expressly defined by the 	NLRA, generally a
question concerning representation arises when one of tow competing
unions files a petition with the NLRB requesting an investigation
supported by the required showing of interest. 	Swift and Company,
128 NLRB 732, 	46 LRRM 1381 (1960).15
How does this procedural definition apply to the EERB? The
EERA also recognizes the existence of a "question of representation"
and a related "question of representation 	deemed to exist" in Sections
3544.1 and 3544.7. 	The term is not defined. 	In addition, the EERB has
noted the existence of the term in San Juan Federation of Teachers 	(EER B
14Federal 	courts have disagreed on the grounds that more substantial
evidence of enployee rivalry, 	than a mere filing of a petition by a
rival union must be shown. 	(See NLRB vs. 	Swift and Co., 294 F 2d 285,
48 LRRM 2699 Ca 3, 1961); Playskool, Inc. 195 NLRB 560, 79 LRRM 1507
(1972); enf. denied 477 F 2d 66, 82 LRRM 2916 (CA 7, 1973) supp. dec.
205 NLRB 1009, 84 LRRM 1129 (1973).
Charging Party correctly cites subsequent authority indicating that the
Midwest Piping doctrine is still upheld by the NLRB itself.
Vanella Buick Opel, 194 NLRB No. 123, 79 LRRM 1090 (1971); St. Louis
Independent Packing Co., 129 NLRB No. 71, 47 LRRM 1021 (196077
enforced 291 F 2d 700, 48 LRRM 2469 (CA 7, 1961); Shreveport Packing
Corp.. 196 NLRB No. 78, 80 LRRM 1206 (1972); Mosler Safe Co., 209 NLRB
No. 6, 85 LRRM 1392 (1974).
15 Sec 9(c) (1) of the LMRA, as amended, provides "Whenever a petition shall
have been filed, 	in accordance with such regulations as prescribed..., 	the
Board shall investigate such petition and if it has reasonable cause to
believe that a question of representation affecting commerce exists shall
provide for a hearing upon due notice...
If the Board finds upon the record of the hearing that such a question of
representation exists, it shall direct an election..."
-22-

Decision No. 12, March 10, 1977) and in Board Resolution No. 4 adopted
on May 18, 	1976.16
Yet in attempting to apply the NLRB definition under Midwest Piping,
to the EERA several fundamental distinctions arise. 	Under the Act,
petitions by employee organizations calling for an election as well as
voluntary recognition are filed with the employer rather than with the
agency. 	In accordance with Board representation regulations, an
organization may request EERB intervention only when the employer refuses
to recognize an uncontested majority organization or submit to the agency
a dispute for investigation or election itself in an employer's decision.
EERB rules appear to allow a majority organization petitioning for a
large unit to reduce its proposal in order to eliminate a "question
concerning representation" previously existing while prohibiting17
a minority organization from expanding upon its initial request.
16Resolution No. 4. states:
An employer may not grant voluntary recognition where a question of
representation exists pursuant to a petition filed under Section 3544.5
of the Rodda Act.
17 Cal. Admin. Code, Tit. 8, Section 33100 states:
(a) 	A request for recognition or intervention may be amended to correct
technical errors or to delete job descriptions from the proposed unit at any
time prior to the commencement of a representation hearing. 	The amendment
shall be filed with the employer and concurrently served on any other
employee organization known to be seeking recognition. 	No posting shall
be required.
(b) 	A request for recognition or intervention may be amended to add
new job descriptions to a proposed unit at any time prior to receipt by
the requesting party of the employer decision served pursuant to Section 33190.
The amendment shall be filed with the employer. 	The employee organization
shall concurrently send a copy of the amendment to the regional office.
The employer shall post a notice of the amended request or intervention
within three workdays following receipt of the amendment. 	The notice shall
conform to the requirements for posting an original request for recognition
or intervention and shall remain posted for 15 workdays. 	The deadline
for an employer decision regarding an amended request for recognition
shall be extended pursuant to Section 33210.
(c) 	An employee organization may not, by means of an amendment, add
to or modify the proof of support accompanying a request for recognition
or intervention. -23-

A brief analysis of several major differences between the NLRA and
the EERA may assist in revealing why such procedural "inequities" may be
intentional.
The NLRB was established by federal legislation at a time when great
turmoil and unrest existed between private sector employers and employees.
Because of a general animosity between parties, Congress established
a strong administering agency and provided that all lengthy organizing
battles be resolved by free elections. 	Ordinarily an employer 	may
recognize an uncontested union displaying majority support. 	However,
when the employer, 	the union or a rival union files a petition with the
NLRB and a probable "question concerning representation" is determined to
exist, 	the NLRB steps in and asserts exclusive control over the dispute.
Furthermore, 	even a recognized union often seeks the additional benefits
of being "certified" which results from a Board directed election.
A probable "question concerning representation" is raised by the
filing of a petition with the NLRB which meets administrative
requirements. 	A petition claiming representation in a unit substantially
a
different from an appropriate unit does not raise the "question" and
may be dismissed. 	On the other hand, all unions are allowed to freely
amend their proposed units and accompanying support during the course
of the NLRB proceedings because the NLRB controls the representation
process and the ultimate outcome is determined by a free choice by the
employees. 	Only after the NLRB fully investigates the petition to
determine the status of the labor union, whether jurisdiction exists,
and whether the unit 	is appropriate, is a "real question concerning
representation" declared as a condition to setting the election. 	Once
the case is presented to the NLRB virtually any party to the proceedings
-24-

which has an interest may appear on the ballot in an election despite
its small showing of interest during the organizing drive. 	Given the
significance of the election process under the NLRA and the role of the
NLRB in resolving representation disputes, it is apparent that
voluntary recognition under the NLRA has taken a back seat to elections
as a meaningful conflict resolution device.
The EERA was established to strengthen a prior labor relations law
for school employees and to bring a more bipartisan system of participation
in establishing working conditions. 	Both the statute and EERB regulations
strongly emphasize a rapid determination of exclusive representation in
negotiating units through mutual settlements between the parties
without the agency's intervention. 	Section 3544 of the Act mandates
voluntary recognition upon a majority demand unless certain circumstances
arise. 	Section 3544 and 3544.1 severely limit the time period during which
employee organizations may compete for exclusive representation once the
process commences. 	In addition the initial petitioner must present
majority support in order to file, thus setting up the strong likelihood
of voluntary recognition. 	Because the Act requires all union petitions
to be filed directly with the employer rather than with the agency, 	the
EERB has no opportunity to investigate and dismiss petitions in
presumptively inappropriate units. 	Once an initial unit dispute is established
by the filing of an intervention, EERB rules specifically limit the
opportunities for the intervening union to change its position. (Cal. Admin. Code,
Tit. 8, Section 33100.) 	Furthermore, Board rules and decisions emphasize the
desirability of partial agreements between the parties without agency
intervention and encourage submission of only issues directly in
dispute to the Board. 	Other rules permit mutual withdrawal of a dispute
from the agency's processes at any time when settlement occurs. 	Parties
-25-

are free to fashion a consent agreement or voluntary recognition in any
unit which does not violate the specific prohibitions of the EERA (such
as a unit containing both classified and certificated employees). When
the Board takes jurisdiction over an 	unsettled case and reviews the
proposed units in light of presumptively appropriate units, only those
parties with a substantial support from employees are allowed on the
election ballot. 	In many cases this requirement results in a voluntary
recognition of the only union eligible for certification.
Noting the distinctiveness of both the NLRB and the EERB and their
respective Acts, it is apparent that procedural and representation rights
must be interpreted according to each Act and the rules and regulations
that are generated therefrom. 	The concept of "employer neutrality in
determining an exclusive representative," as promulgated in Midwest Piping,
may be 	adopted18 or 	refined by the Board itself. 	Considering the
fundamental differences between the Acts (NLRA and EERA), federal case
law interpreting procedural definitions under the NLRA such as "when a
question concerning 	representation exists", 	is not found to be binding
on resolution of the issues at hand. 	Thus relevant federal case law
must be considered on a case by case basis to determine if it is applicable to
resolution of conflicts arising under the EERA.
Two examples serve to illustrate: 	(1) an employer, confronted with
two validly filed overlapping petitions under the EERA, chooses to ignore
the 	intervention because the intervenor's showing of interest is doubted
and grants voluntary recognition to the majority petition despite
overlapping proposed units, 	(2) on the eve of consent election the employer
grants recognition to the majority petitioner without concurrence by the
other party to the election. 	In both these situations, a "question
concerning representation" exists or is deemed to exist clearly under the
NLRA and the EERA.
18 The EERB adopted its own doctrine in principle by Resolution No. 4.
-26-

On the other hand, where the 	NLRA and EERA and the rules
relating to filing and amending petitions reflect a philosophical
difference in purpose, the EERB is free to reject a literal application
of NLRB precedent, such as Midwest Piping, which could require a finding
of "unlawful support."
Did a "real question concerning representation" exist under the EERA
at the time of the voluntary recognition?
Section 3544.1(a) and (b) state that a "question of representation is
deemed to exist" when the appropriateness of the unit is not in doubt
but either the employer or a rival union force an election. 	Section 3544.7
states that a "question of representation" exists after the Board has
determined the appropriate unit in a disputed case and prior to scheduling
the election. 	From these sections, which are comparable to NLRB
procedures, 	an actual question of representation is declared only after
all preliminary issues are resolved and an election is required.
The more difficult question is to determine whether a threshold period
exists, analogous to the "probable question" raised when a petition is
filed with the NLRB, requiring employer neutrality.
In San Juan Federation of Teachers, the Board noted that "voluntary
recognition may be defeated if an intervening employee organization
triggers a question concerning representation and an election by making
a 30 percent proof of 	support." 	(supra
-·, at p. 8)
-27-

•
It should be noted that the Board in San Juan faced an issue of an unfair
labor practice charge stemming from a district's providing a rival organizing
employee organization with access to proof of support petitions supplied by a
second organization. 	San Juan did not address directly the specific issues
of when a question of representation exists or when such a question may be
removed according to EERB Representation Rules and Regulations.
Board Resolution No. 4 states that "An employer may not grant voluntary
recognition where a question of representation exists pursuant to a petition
filed under Section 3544.5 of the Rodda Act." The Board Resolution is recognized
but it is also recognized that such a resolution was generated out of a
dispute wherein two proposed units overlapped to cover the same employee
classifications and arose in a particular case where the showing of interest of one
organization was unilaterally determined by the employer rather than referring
the matter to EERB. 	Notwithstanding that Board Resolution, it must also be
recognized that the Board has adopted certain rules and regulations applied in
representation disputes. 	It is not the position of this hearing officer to
create a novel policy declaring rights of the parties but instead to recognize
and give credence to existing rules, regulations and policies in order to
effect a dispute resolution within the spirit and intent of the EERA.
Thus credence must be given to the policy favoring voluntary recognition
of employee organizations under appropriate circumstances and the right of
employee organizations to remove their representation efforts from dispute
by amending their petitions to delete job descriptions.
Section 3544.l(b) allows an intervening employee organization only 15
work days following the posting of a majority petition to challenge the
appropriateness of the unit or demand an election. 	Section 3544.1 and Cal. Admin.
-28-

•
Code, Tit. 8, Section 33070 requires each intervention to be accompanied by at least
30 percent support in the unit claimed to be appropriate. 	In effect the intervenor
cannot 	expect 	voluntary recognition absent a significant support showing,
but may block recognition by a rival employee organization until it can gain
adequate employee support.
Clearly at the time a valid intervention is filed with the employer
a colorable question of representation exists. 	Yet unlike the NLRA
it is apparent that the question exists only to the extent to which the
proposed intervening unit overlaps or conflicts with the original request
for representation.
Cal. Admin. Code, Tit. 8, Section 33100(b) requires that an amendment to a
request for representation or intervention to add new job classification be made
prior to the filing of an employer's decision. 	Furthermore, Cal. Admin. Code,
Tit. 8, Section 33100(c) adds a further stabilizing effect by preventing the amendment
from becoming a vehicle for showing of new support. 	In effect, these two subsections
freeze the proposed unit of the intervening employee organization within a
fixed time frame. 	These two subsections effect that freezing in the spirit of
orderly and stable representation efforts of rival employee organizations.
While nothing in the Act or the rules prevents an intervenor or any
organization from continuing organizing efforts between the time that intervention
is filed and a hearing is scheduled, the employer and the majority petitioner
cannot be expected to anticipate an effort by an intervening organization to
expand its proposed unit to include additional employees or additional employee
units at the time of hearing. 	Such an expansion is effectively blocked by Cal.
Admin. Code, Tit. 8, Section 33100(b).
-29-

•
Whenever a majority petitioner claims a wall-to-wall unit is appropriate,
it appears proper for an intervening organization to discuss the community
of interest of employees other than those for which it has filed a petition
in order to defeat the wall-to-wall unit. 	Pursuant to Cal. Admin. Code, Tit. 8,
Section 33340, it is assumed for this discussion that an intervenor or an outside
organization may enter the hearing if one 	is conducted, to propose an expansion
of its requested unit or to propose additional units. 	On the other hand, prior
to the commencement of the hearing, the intervening employee organization has no
guarantee that the majority petitioner may not amend its original petition to
eliminate those positions covered by the intervention, and thereby eliminate the
colorable question concerning representation. 	Cal. Admin. Code, Tit. 8,
Section 33100(a) specifically authorizes an employee organization to amend its
petition to delete job descriptions prior to the representation hearing without any
posting requirement. 	An intervening organization has no reasonable expectancy of
representation of any employees other than those covered in its intervention
petition once the time for its amendment has elapsed. 	To decide otherwise
would thwart the rigorous requirements of Section 3544.1 of the Act requiring
petitions supported by showing of interest and also thwart the express policy
of the Board to encourage settlements among parties. 	A probable question
of representation did exist, but only to the extent of conflict on the face
of petitions filed with the employer pursuant to EERB rules. 	In this case,
the fact that Local 22 notified the employer in writing in advance of the
hearing that it intended to expand its proposal at the hearing does not create
a question of representation as to those employees not covered by its original
intervention. 	Thus notice is ineffectual to resurrect the question once it
has been laid to rest pursuant to Cal. Adm. Code, Tit. 8, Section 33100(a) and (b).
-30-

It appears that under the EERA the existence of a real question concerning
representation is not a fixed concept as it is under the NLRA. 	Until an
election is scheduled, a possibility exists that an employer may lawfully
remove the "question" by granting recognition in an amended unit which does
not overlap with any proposed intervening unit.
B. Did the District recognize CSEA to preclude Local 22 from participating
at the scheduled EERB hearing or election in violation of the EERA?
An EERB hearing to resolve the pending unit dispute was scheduled for
November 22, 1976. 	The recognition occurred on November 19. 	Having previously
found that Local 22 had no right under the Act to expand upon the unit
originally covered by its intervention and that the "colorable question of
representation" as to the unit recognized by CSEA was lawfully removed, the
organization had a right to participate in an EERB hearing only if a dispute
was in existence regarding its original "operations" unit.
The record indicates no proof of intent by the District to unlawfully
deny Local 22 the right to litigate any issues regarding the unit proposed
by its intervention. 	In fact, the record reflects no evidence that the
District induced CSEA to amend its petition in order to receive voluntary
recognition and end the rivalry between the organizations. 	Actually, it was
CSEA that initiated the amendment independent of the District. 	CSEA did seek
advice from the District concerning its impending amendment and the District
sought legal advice. 	However, such advice initiated at CSEA's request can
hardly be found to be inducement by the District.
-31-

While it is recognized that the employer resolution of a question of
representation while NLRB election proceedings are pending has not been
condoned (Vanella Buick, supra, Shreveport Packing Corp., supra, Mosler
Safe Co., supra), EERB election proceedings had not commenced here. 	Furthermore,
as noted above, a question concerning representation had been dispelled
by CSEA's amendment pursuant to Cal. Admin. Code, Tit. 8, Section 33100(a).
Therefore, given the evidence, the District's recognition of CSEA was made
without anti-Local 22 animus and was within the rights of the District.
C. Is recognition granted to one of two competing labor organizations
invalidated where the unit covered by the recognition is not presumptively
appropriate by Sweetwater Union High School District (EERB Decision No. 4,
November 23, 1976) standards?
The Charging Party cites numerous cases under the NLRB standing for
the proposition that when an employer recognizes a union representing an
inappropriate unit, the resultant contract may be challenged. 	In the
NLRA setting, the issue will normally arise when a rival union files an
election petition during the term of a collective bargaining contract. 	Such
a contract ordinarily operates as a bar to the rival election petition.
However, when the contract embraces an inappropriate unit the "contract
bar rule" is generally inapplicable. Moveable Partitions, Inc. ,
175 NLRB 915, 71 LRRM 1095 (1969).
The contract bar will still apply if the NLRB, in making a separate
bargaining unit determination, might have found a different unit to be
-32-

appropriate, so long as the unit recognized is not inherently inappropriate,
Airborne Freight Corp., 142 NLRB 873, 53 LRRM 1163 (1963). 	In Monsanto Chemical
Co., 108 NLRB 870, 34 LRRM 1099 (1954), the NLRB found that a contract that covered
a broad unit of production, maintenance workers and guards did not operate
as a bar since the unit violated the basic intent of Congress to exclude
guards from units containing other employees. 	The NLRB has stated that the
contract bar rule is based upon Board policy consideration aiming to stablize
the relationship between employers and employees, 	American Dywood Co.,
99 NLRB 78, 8030 LRRM 1028 (1952). 	Furthermore, in Airborne Freight (supra
at 874), the NLRB noted that the contract bar rule would not be applied
without restraint where the result of application would disrupt industrial
stability achieved under an existing bargaining agreement. 	The NLRB has
no duty to police every contract voluntarily entered into by the parties to
determine if a different unit would be appropriate.
It is apparent from EERB practices regarding voluntary recognition and
consent elections that an undisputed recognized unit which does not implicitly
violate the Rodda Act is considered an "appropriate unit." 	The same standard
of appropriateness does not apply, of course, when the EERB is called upon
to determine unit appropriateness.
There is no 	EERB policy that recognizing an employee organization
representing a presumptively inappropriate unit amounts to lending "unlawful
support." 	Considering established voluntary recognition practices by
employers under the EERA, appropriateness of a proposed unit is not at issue
where there is no overlap of job descriptions in two or more proposed units
requested by two or more competing employee organizations.
-33-

As a result of the District's recognition, CSEA became the recognized
representative of a unit not presumptively appropriate by Sweetwater standards.19
That recognition should not be disturbed for want of presumed appropriateness,
given the EERB's policy favoring voluntary recognition.
Since CSEA amended its original petition pursuant to Cal. Adm, Code,
Tit. 8, Section 33100(a) by deleting positions, it appears that organization
has no further standing to contest the appropriateness of the remaining
operations unit proposed by Local 22 unless it participates in a future
hearing as a new party under Rule 33340 (joinder of party).
Under the EERA and the California Administrative Code, there are no
provisions for subsequently determining the issue of appropriateness of a
unit during the period of recognition or duration of a contract once an
employee organization has been validly recognized. 	Thus Local 22 can no
longer challenge the appropriateness of CSEA's unit. 	This does not mean
that Local 22 is forever barred from becoming the employee representative
of the employees in question. 	Section 3544.l(c) of the Act notes that a
request for recognition may be filed during a 30 day period prior to the
expiration of an existing contract between an employee organization and
the employer or after a contract expires. 	The recognition petition may
be filed in a unit different from the recognized unit. 	Furthermore,
decertification is also available as a remedy pursuant to Cal. Adm. Code
Sections 33240 and 33250.
D. 	Was the recognition granted to CSEA when it did not have an
uncoerced majority support in the unit?
19The Board in Sweetwater found three units of classified employees to be
presumptively appropriate: 	instructional aides (paraprofessionals),
office-clerical services; and operations-support.
-34-

The issue of recognition based upon majority support is raised in
two distinct contexts. 	First, under the NLRB, an employer commits an
unfair practice by recognizing and bargaining with an employee organization
when less than a majority of the employees have authorized the employee
organization to represent them even though the employer acted in good faith.
International Ladies Garment Workers Union v. NLRB, 366 US 731, 48 LRRM 2251
(1961).
Second, the federal appellate courts have consistently overturned the
NLRB and have allowed employers to defeat an unlawful support charge by
showing that recognition occurred only when one rival employee organization
actually possessed a clear and uncoerced majority support. 	NLRB v. Peter Paul,
Inc., 467 F. 2d. 700, 80 LRRM 3434 (CA 9, 1972); Playskool, Inc. v. NLRB,
477 F. 2d. 66, 82 LRRM 2916 (CA 7, 1973). 	Under such circumstances, the courts
have found that no real question concerning representation exists to block
recognition despite the filing of a request for certification by a rival
employee organization. 	Hotel and Restaurant Employees, Local 5 v. Inter-
Island Resorts Ltd., 507 F. 2d 411, 87 LRRM 3075 (CA 9, 1974); cert. denied
422 US 1042, 89 LRRM 2614 (1975).
In San Juan (supra), the EERB recognized the analogy between Section 8
(a)(2) of the NLRA and Section 3543.5(d) relating to unlawful support by
recognition of a minority employee organization. 	The Board held that an
employer must make the proof of support available upon request to any
employee organization which desires to challenge a showing of interest.
CSEA testified that at the time of recognition it had support of 98 percent
of those employees in the amended unit. 	No evidence indicated that Local 22
challenged that representation.
-35-

However, the Charging Party argues that EERB procedures do not prohibit
employees from signing the authorizations for more than one employee
organization and, further, that NLRB precedent is applicable indicating that
dual cards do not demonstrate a clear and unambiguous selection of a
representative. 	NLRB v. Hi-Temp, 203 NLRB 119, 83 LRRM 1473 (1973); enforced
503 F. 2d. 583 87 LRRM 2437 (CA 7, 1974).
In Hi-Temp, the NLRB excluded those cards supporting the majority
organization which were signed by employees who had also signed cards for
the rival employee organization. 	After discounting the dual cards, the NLRB
determined that the recognized organization lacked majority support.
Schools are an industry where dual cards are accepted under EERB
procedures.
In the present case uncontradicted testimony revealed that CSEA had
signed support from 98 percent of all eligible classified employees at the
time it filed its original petition with the employer. 	At the time of
recognition, CSEA represented to the employer that it had 98 percent
support in the unit 	recognized.20 Local 22 presented no evidence to challenge
the showing of support by CSEA. 	At the time of filing its intervention
petition, Local 22 submitted no showing of support for any employee outside
its operations unit. 	While Local 22 did eventually submit dual
authorizations covering 42 of the approximately 217 classified employees in
the amended CSEA unit recognized by the District, CSEA still had a majority
even after discounting dual cards.
20 While CSEA's showing of support was not placed in evidence, no
testimony contradicted the 98 percent figure. 	Assuming 98 percent
of the 217 classified employees is 213, CSEA's uncontested support
among all the classified employees, excluding those 56 employees who
also signed Local 22 authorizations, would be approximately 72 percent.
-36-

In its discretion the EERB has chosen to measure proof of support at the
time of initial filings under Section 3544 and 3544.1 unless an election is
directed in a substantially different unit than originally filed for. 	At
the time of recognition, CSEA had an unchallenged 98 percent support and
Local 22 had no official support in the unit.
Thus, the employer would not have contributed "unlawful support" by
recognizing CSEA in a unit not covered by Local 22's intervention upon a
clear showing of majority support, although Local 22's intervention in another
unit was pending. 	See NLRB v. Swift and Co., 294 F. 2d 285, 43 LRRM 2699
(CA 7, 1961). 	Furthermore, as noted by the NLRB, an employer does not
commit an unfair practice by extending recognition to one of two competing
employee organizations where the rival employee organization's claim of
support is not a colorable claim. 	Boys Market, Inc., 156 NLRB 105,
61 LRRM 1001 (1965). 	That colorable claim must represent an approximate
majority of the employees to be represented. 	Local 22's claim was • less than
colorable, especially noting CSEA's amended unit.
E. Did the employer recognize one of two competing labor organizations
at an illegal meeting of the Board of Trustees?
The Ralph Brown Act (hereinafter the Brown Act - Government Code Section
54950 et seq.) provides that in order to hold special meetings, a legislative
body must provide notice of such meetings 24 hours in advance of the special
meeting, Section 54956. 	A member of the public has recourse in the courts
in the event that the Brown Act will be or has been violated.
But even if it is found that a meeting of a legislative body was held in
violation of the Brown Act, the action taken by that body would not be void.
The action would be valid.21
21 Stribing v. Milliard, 6 CA 3d 470 (1970); See 42 Ops. Cal. Atty. Gen. 61 (1963),
-37-

•
Local 22 contends that the special School Board meeting held on November 20,
1976, at which the Board recognized CSEA's amended petition, was an unlawful
meeting and thus the actions taken by the Board are void.
The evidence indicates that the written notice sent out to the School
Board members was dated the same day as the date of the special meeting—
November 20, 1976. 	However, the evidence is unclear as to when the notices
were delivered to the Board members. 	Even if the notice was not received
within the requisite period to meet the standards of the Brown Act, the courts
or the School Board would be the proper forum to bring up the matter of
alleged special meeting violations. 	The EERB does not provide the proper
forum for this dispute.
In light of the foregoing discussion, it is found that the District did
not contribute "unlawful support" to CSEA in violation of Section 3543.5(d).
Considering the policies underlying the EERA and the structure established
by the EERB which limit organizing campaigns to very short time periods,
it is found that an advantage may be given to the first union which rapidly
organizes and gathers necessary support for recognition. 	While competing
unions are given equal opportunity to organize, a premium is placed on speed.
In this sense, EERB Rules and Regulations encourage rapid settlement and promote
stability in the educational industry. 	Moreover, it cannot be said that the
employees are denied their rights to exercise their freedom of choice in
selecting their negotiating agent. 	Such a choice was made when the employees
covered by CSEA's petition effectively demonstrated majority support for that
union. 	Although those employees did not exercise their freedom of choice at
the ballot box, they nevertheless exercised that right through their petitions.
-38-

•
It should be noted that this hearing officer does not propose to
change the 	EERB's policies and regulations. 	If a change in the policies
and regulations is to be made, it is for the 	EERB to make this decision.
This decision comports with established policies and procedures.
2. Section 3543.5(a) and (b)
In this context the alleged violation of Local 22's rights pursuant
to Section 3543.5(b)22 and the employees' rights under Section 3543.5(a)23
must be considered a derivative of the "unlawful support" charge under
Section 3543.5(d). 	Having found no "unlawful support," no derivative
violation is found.
B. Charge Against CSEA
Did CSEA cause or attempt to cause the District to violate Section
3543.5(a), (b) or (d) in violation of Section 3543.6(a)?
As noted above, the District did not commit the alleged unfair practices.
Thus CSEA did not cause a violation of Section 3543.5(a), 	(b) and (d).
No evidence was presented to support a finding that CSEA attempted
to cause the District to violate the Act. 	Furthermore, the evidence does
not indicate that CSEA intended such a result.
22Section 	3543.5(b) finds it an unfair practice to "deny employee organizations
rights guaranteed by this chapter."
23Section 	3543.5(a) finds it an unfair practice, in part, to "interfere
with, restrain or coerce employees because of their exercise of rights
guaranteed by this chapter."
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Thus, it is found that CSEA did not violate Section 3543.6(a).
Did CSEA interfere with, restrain or coerce employees because of their
exercise of rights guaranteed by the Act in violation of Section 3543.6(b)?
Both Section 3544.1 and Cal. Adm. Code, Tit. 8, Sec. 33190(a) provide for
voluntary recognition of an enployee organization by an employer. 	Such
recognition must be supported by evidence that a majority of the employees to
be represented have given their uncoerced support to the recognized organization.
ILGWU v. NLRB, 366 US 731, 48 LRRM 2251 (1961). 	But when an employer
recognizes a minority union and a minority union accepts such recognition,
both the employer and the union have committed unfair labor practices. 	Id. at
739. 	In ILGWU, supra, the Supreme Court found that the employer violated
Section 8(a)(l) and 9(a)(2) of the NLRA and the union violated 8(b)(l)(a) of
that act.24
Section 3543.6(b) states that an employee organization commits an
unfair labor practice when it acts to:
"Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees,
or otherwise interfere with, restrain, or coerce employees
because of their exercise of rights..."
Section 8(b)(1)(a) of the NLRA closely resembles the latter part of
Section 3543.6(b) of the Act. 	Since the alleged violation by CSEA does
not reasonably bear on threatened or imposed reprisals nor on discrimination,
it is found that Local 22's charges center on CSEA's alleged coercion,
2429 USC 158(b)(l)(a) in pertinent part states:
"It shall be an unfair labor practice for a labor organization or its
agents -
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7..."
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•
interference with or restraint of District employees in the exercise of their
rights under the Act. 	Thus the thrust of these alleged violations is that
when an employer recognizes a minority employee organization and that
employee organization accepts recognition, the employees' right freely
to choose or reject negotiations or a particular employee organization
is sacrificed.25
In the instant case, CSEA, had already secured the support of approximately
98 percent of the employees in its proposed wall-to-wall unit. 	After filing
its intervention petition, Local 22 exhibited its requisite 30 percent showing
of support. 	From the time of intervention until CSEA's recognition, Local 22
continued its recruitment efforts and eventually mustered the support of
approximately 56 employees. 	As noted above, the exclusion of Local 22's 56
employees from CSEA's claimed employees still give CSEA at least 	72 percent
support. 	Furthermore, the recruitment efforts of Local 22 plus its
communications alleging support together were not enough to dispel the
evidence that CSEA still maintained a clear majority of support from the
employees in the proposed unit, as amended. 	The amendment of CSEA's
originally proposed unit further removed from disputed status those
employees whose job classifications were within the overlapping units.
Thus the evidence supports a finding that CSEA was recognized upon a showing
that it maintained clear majority support and it accepted recognition under
those circumstances.
Therefore, it is found that CSEA did not violate Section 3542.6(a)
or (b).
2"R. Gorman, Basic Text on Labor Law (1976), at 203.
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RECOMMENDED ORDER
The unfair practice charges filed by Local 22 are hereby dismissed.
Pursuant to 8 Cal. Adm. 	Code, 	Section 35029, 	this Recommended Decision
and Order shall become .final on November 7, 	1977, 	unless a party
files .a timely statement of exceptions . 	See Cal. Adm. 	Code, 	Tit . 	8,
Section 35030 . ·
Dated: October27, 1977
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Terry Filliman
Hearing Officer