PERB Order No. A031E•Fremont-Newark Community College District (PERB A031E)
Fremont-Newark Community College District (PERB A031E)
PERB Order No. A031ECalperb15 mag 1978
Testo completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD FREMONT-NEWARK COMMUNITY COLLEGE DISTRICT, Employer, and CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION AND ITS OHLONE CHAPTER 409, Employee Organization, APPELLANT. ) ) ) ) ) ) ) ) ) ) _______________________ ) Case No. SF-UC-33 PERB Order No. Ad-31 Administrative Appeal May 15, 1978 Aepearances: Paul Gygax, Secretary, Board of Trustees, for Fremont-Newark Community College District; Robert L. Blake, Attorney, for California School Employees Association and its Ohlone Chapter 409. Before: Gluck, Chairperson; Cossack Twohey and Gonzales, Members. OPINION This is an appeal from a dismissal of a petition for the consolidation of two negotiating units of classified employees. FACTS The facts are not in dispute. On April 2, 1976, the California School Employees Association (CSEA) filed a request with the Fremont-Newark Community College District (District) for voluntary recognition in a "wall-to-wall" representation unit. On April 14, 1976, the Ohlone Classified Employees Association intervened seeking establishment of a unit of office and technical aides employees. On April 28, 1976, the District filed a position statement indicating both units were deemed appropriate and requesting that an election be held. On April 27, 1977, pursuant to a hearing conducted by a
Board agent, an informal settlement was reached by the parties in accordance with which CSEA split its original petition and was to be granted voluntary recognition in an operations/support services unit and a representation election was to be conducted among employees in an office/technical/business services unit. On May 27, 1977, CSEA was certified as the exclusive representatiYe of the contested unit as a consequence of having received a majority of the votes cast. On June 15, 1977, the District and CSEA joined in a petition for consolidation of the two units. The regional director dismissed the petition on the grounds that rule 33260, 1 under which the petition lcal. Admin. Code, tit. 8, sec. 33260, which provides: 33260. Petition. (a) An employee organization, an employer, or both jointly, may file wit~ the regional office a petition for a change in unitdetermination pursuant to Section 3541.3(e) of the Act. (b) The petition shall contain the following information: (J) The name, address and county of the employer; (2) The name and address of the employee organization, and the name, address and telephone of the agent to be contacted; (3) A description of the established unit; (4) The approximate number of employees in the established unit; · (5) The date voluntary recognition was extended or the existing certification was issued; (6) A description of the proposed unit; (7) The approximate number of employees in the proposed unit; (8) The name and address of any other employee organization known to claim to represent any employees affected by the proposed change in the established unit; (9) A concise statement setting forth the reasons for the request to change the unit determination. (c) A copy of a petition filed by an employee organization oran employer alone shall be concurrently served on the other party. A statement of service shall be sent to the regional office with the petition. (d) The employer shall post a copy of the notice conspicuously on all employee bulletin boards in each facility of the employer in which members in the established unit and in the unit claimed to be appropriate are employed. The notice shallremain posted for at least five workdays. 2
had been filed, was not applicable. The parties were informed in the letter of dismissal that "to achieve consolidation •.• required that a new petition for recognition be filed pursuant to section 33050 of the EERB Rules and Regulations." Subsequently, the executive director of the Board affirmed the action of the regional director. DISCUSSION In dismissing the petition under rule 33260 and suggesting the alternative procedure under rule 33050, 2 the regional director may 2 cal. Admin. Code_, tit. 8, sec. 33050, effective April 1977, 7• which provides: 33050. Request for Recognition. (a) An employee organization may file with the employer a request for recognition as the exclusive representative of an appropriate unit. The request shall contain the following information: (1) The name and address of the employee organizationrequesting recognition, and the name. address and telephone number of the-employee organization agent to be contacted; (2) The name, address and county of the employer; (3) The date the request is filed with the employer; (4) A description of the grouping of jobs or positions which constitute the unit claimed to be appropriate; (5) The approximate number of employees in the unit claimed to be appropriate; (6) A statement that a majority of the employees in the unit claimed to be appropriate wish to be represented by the employee organization; (7) The name and address of any other employee organiza- tion which, within the 12 months preceding the request forrecognition, either is known to have been recognized by the employer as the exclusive representative of any employees included in the unit described in the request, and the date ofsuch other recognition, or is known to have demanded recognitionas the exclusive representative of any employees in the unitdescribed in the request; (8) The effective date and expiration date of anv known written agreement between the employer and another employee organization covering any employees included in the unitdescribed in the request for recognition and the name and address of such other employee organization;(b) Proof of majority support in the unit claimed to be appropriate, or a verified copy thereof, shall be filed with the employer concurrent with the request.(c) The employee organization shall concurrently send a copy of the request, excluding the proof of majority support, co the regional office.~Subsequently amended January 16, 1978. -3-
have been concerned that a question of the appropriateness of the resulting new unit would be presented which should properly be considered by the Board. In addition, an election had been held in one of the units and there would be reason to wonder if the results of that election would have been the same had the employees voted in the proposed consolidated un1t. While the letter of dismissal is silent on these matters, these are not unreasonable inferences to draw in light of the nature of the proceedings the regional director would have required the parties to pursue. Be that as it may, the Board does conceive of rule 33260 as an appropriate vehicle for any change in a unit, at least yntil such time as it may decide to establish more specific procedures to accommodate requests for the variety of unit alterations that may be anticipated. Nevertheless, we affirm the dismissal of the petition for consolidation, though for the different reasons that follow. In its joint request, the District and C:SEA argue that consolidation of the two units would provide "optimum representational support for the entire range of classified employees in this district." The time to raise such an argument was during the hearings on the original requests of -4-
CSEA and the jntervenor, Ohlone College Classified Employees Organization. To raise it just 19 days after the election and certification of CSEA in a unit found by the Board to be appropriate is to seek to relitigate issues already resolved. For the Board to accept a petition under these conditions would be to place itself at the disposal of any party who finds it advantageous to alter the unit configuration established by the Board. • Beyond that, the possibility that full-scale hearings on the appropriateness of the proposed new unit might have to be conducted and new elections held evokes prospects of additional expenses, further interruptions of work in the District and onerous administrative burden imposed on Board staff that would be totally unwarr-anted absent, at the very least, a clear showing of a major and material change in the circumstances which were dispositive when the units were originally established. At best, the request in this case is untimely. There could not have been an accumulation of sufficient experience for the parties to form a cJear opinion of the efficacy of future negotiating in the existing units. The stated belief in the "optimum" possibilities of a consolidated unit is both without foundation in fact and contrary to the basic and consistent approach taken by the Board since Sweetwater Union High School District (11/23/76) EERB Decision No. 4. Quite clearly, the employees who now comprise the operations/support services unit could have significantly less influence on the outcome of 5
negotiations in the-proposed consolidated unit in which they would constitute only about one-quarter of the total unit. Further, for the Board to accept a petition under the circumstances in this case would be adverse to the statutory desire to provide for a minimum period of stability in which collective negotiations may take place. Furthermore, to permit consolidation so soon after the election of an exclusive representative would be to inadvertently encourage a strategy designed to dilute the ability of employees who have become disenchanted with the quality of representation to exercise their statutory freedom of choice through the decertification process, though we imply no such purpose underlying the joint petition before us. The entire matter of unit changes, and most particularly that of consolidation, demands careful evaluation by the Board. Pending such action, the Board, as a matter of policy, will not accept petitions for consolidation of two or more established negotiating units into a single unit absent a prima facie showing of overriding need. 6
ORDER The action of the executive director affirming the regional director's dismjssal of a petition for consolidation filed jointly by the Fremont-Newark Community College District and the California School Employees Association, is affirmed . By: rperson 7 • Coss~
IT
Ait
01 CALIIORNIA ~-===================
EDUCATlONAL
EMPt.OYMENT
RfLATlONS
BOARD
San
Frcnc:isco
Regionol
Office
1n
Post
Street,
Ninth
Floor
Son Francisco,
Co!ifcrnic
94
l
08
:4 i 5)
5.57
-1
3.50
December
9,
1977
Mr.
William
a.
Richter,
Superintendent
Fremont-Ne~ark
Community
College
District
P.
a. Box 909
Fremont,
California
94537
Ms.
Betty
Boykin,
Field
Representative
California
School
E::iployees
Association
333
Hegenberger
Road,
Suite
413
Oakland,
California
94621
Re:
Fremont-Ne~ark
CoClmunity
College
District
S"F-R-379
Dear
Interested Parties:
j.
('
' """\' .J
On
June
15,
1977
~e
received
your
joi~t
request for consolidation of
the
Office,
Technical
and
.Business
Services
unit
and
the Maintenance/Operation
and
Support
unit.
rne
EE?..S
issued
a
certification
to
California
School
E::lployees
Association
and
its
Ohlone
Caapter
490 (CSEA) on
May
27,
1977
for the
Office,
Technical
and
Business Se:-~ices
unit.
This
rasulted froc
an
election
conducted
~y
19,
19i7,
in
~hich
the
employees'
vote reflectetl
c~eir
wishes concer~in~
=e?resencation
~ithin
a
prescribed
unit.
The
District granted
voluntary
recognition to
Califorr'.ia
School
E::iployees
Association
and
its
Ohlone Cha;,te?:
L..90
(CSE...;.)
oo.
April
27,
1977
for
che
~.aintenance/Operation
and
Support
unit.
rnis
resulted
froQ
a
settlement
reached
at
an infor.:ial
hearing
conducted
by an
En3
hearing
officer.
Your
petition
cust therefore
be
denied.
Joint
ne~otiacions for
all
c::::iloyE::~s
rapresenced
by
CSE..\
and
its
Ohlone Chap
cer
490
is
no
c
;:ireclucec!
by
:-:,-e~e
fac
::.ors,
hc.,.ever.
To
achieve
consolidation of
these uni~s r=quiras
chac a
::1e~
pe:i:ion
:o=
re:02-
nicion
be
:iled
pursuant
co
Seccion
33050
of
th:::
E-=-?.,3
:t::.le:s
a::1d
?..eg•..:la:::.ons •
.
.;.,,"17
=~=
bars
co
such
a
filing
:msc,
or
cou=se,
alsc
oe
rne:
(sae
Sc•:cicn
3.5:.:...:..
i('b)
of
~~A
and
Sec:icn
33150(b)
of
:::,,e
~~~3
~ulas
and
~e1~la:ions.
!.:
you
hav,;,
any
ques:::ion.s
concerning
this
::.a::.er, please:
1 er: oe kno~.
A.~
~ppeal
r:o
chis decision
:::.ay
be
::.a.de
~ichin
cen
calendar
days
of
racai?C
o:
c~~s
~=~~=r,
s~acing
~~e
fac~s
upon whic~
:he
a~pe2l
is
b~se~ and
ti:a~ ~i=h
::-:e :::-:e-::uci·-1e
Jirec-:or,
~-~:-.
C;;.ar.las
Cole,.:.:
923 12::i.
Sc:-a-::,
Su:..:e
ZOO,
St3c:'ai:!enr:o, Cali:or0..:'..a 95314., C-:,;:.::s
of
any
a:;,pe.-al ::us~ ':e
::-::-,eC
u?On
al.:
oc~er
9~r:ias
c~
Regional Of=ice"
~~gion~l 9i=ac:or
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