Folsom-Cordova Unified School District (PERB A045E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SERVICE
	EMPLOYEES
	INTERNATIONAL
	UNION,
LOCAL
	22,
	AFL-CIO,
Employee
	Organization,
	APPELLANT,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
	ASSOCIATION,
AMERICAN
	RIVER
	CHAPTER
	#538,
Employee
	Organization,
and
FOLSOM-CORDOVA
	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
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_____________________
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Case
	No.
	S-R-313
PERB
	Order
	No. 	Ad-45
Administrative
	Appeal
September 	6,
	1978
Appearances: 	Rbbert
	J.
	Bezemek,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg
	and 	Roger)
	for 	Service
	Employees
	International
	Union,
Local
	22,
	AFL-CIO;
	California
	School
	Employees
	Association,
American
	River 	Chapter
	#538 	and
	Folsom-Cordova
	Unified 	School
District
	made 	no
	appearance.
Before 	Gluck,
	Chairperson;
	Gonzales
	and
	Cossack
	Twohey, 	Members.
DECISION
Service
	Employees
	International
	Union, 	Local 	22, 	AFL-CIO
(hereafter
	SEIU}
	appeals 	the
	Sacramento
	regional
	director's
direction
	of
	a
	decertification 	election 	in 	the
	transportation
unit 	in 	the
	Folsom 	Cordova
	Unified 	School
	District 	{hereafter
District).

FACTS
On
	February 	14,
	1977,
	SEIU 	was
	certified
	by
	the
	Public
Employment
	Relations
	Board
	(hereafter
	PERB
	or
	Board)
	as
	the
exclusive 	representative
	of
	a
	unit
	of
	transportation
employees.
	SEIU 	and
	the
	District
	executed
	a
	collective
negotiations
	agreement
	which
	expired
	on
	June 	30, 	1978.
	On
March
	23,
	1978,
	the
	California
	School
	Employees
	Association,
American
	River 	Chapter
	#538
	(hereafter
	CSEA)
	filed
	a
decertification 	petition
	pursuant 	to
	section
	3544.7(b)
	of
	the
Educational	
1	Employment
	Relations
	Act
	(hereafter
	EERA).
	On
March
	30, 	1978,
	PERB's
	regional
	director
	determined
	that
	the
petition
	was
	timely
	filed
	and
	directed 	that
	a
	decertification
election
	be
	held.
	On
	April
	4, 	1978,
	the
	regional
	director
ordered
	a
	correction 	of
	the
	pertinent 	ballot
	and
	mailed
	a
notice 	to
	SEIU
	providing 	ten
	days
	to 	appeal
	his
	order
	directing
the
	election.
On
	April
	14, 	1978,
	SEIU
	filed
	an
	unfair 	practice
	charge
alleging, 	inter
	alia,
	management
	support 	of
	CSEA.
	On
	April
	20,
lThe
	EERA
	is 	codified 	at
	Gov. 	Code
	sec.
	3540
	et
	seq.
Gov. 	Code
	sec.
	3544.7(b)
	provides:
No
	election 	shall
	be
	held
	and
	the
	petition
shall
	be
	dismissed
	whenever:
(1) 	There
	is 	currently 	in
	effect
	a
	lawful
written
	agreement
	negotiated
	by
	the 	publicschool 	employer 	and
	another
	employee
organization 	covering
	any 	employees 	included
in 	the 	unit 	described 	in 	the 	request 	for
recognition, 	or 	unless 	the 	request 	for
recognition 	is 	filed 	less 	than 	120
	days, 	butmore 	than 	90
	days, 	prior 	to 	the 	expirationdate 	of 	the 	agreement
•.•.
2

1978,
	SEIU
	filed
	an
	administrative
	appeal
	of
	the
	regional
director's
	order
	directing
	the
	decertification 	election.
	The
appeal
	stated:
•••
The
	grounds
	for 	the 	appeal
	and
	exceptions
include
	but
	are
	not
	limited
	to 	the 	following:
1.	
Pending
	unfair
	labor
	practice
	charges,
filed
	April
	14,
	1978,
	against 	the
District;
2.	
A
request 	to
	have
	a
	hearing
	on
	the
matter;
3.	
The
	decertification 	petition 	is 	tainted
because
	of
	employer
	support;
4.	
The
	petition
	is
	barred
	under
	the
	Board
Rules;
5.	
The
	employer
	has
	refused 	to 	bargain 	in
good
	faith
	with 	Local
	22;
6.	
The
	employer
	has
	interferred,restrained,
	and
	coerced
	employees
	inthe
	exercise 	of
	their 	rights
	under
	the
Rodda
	Act;
7.	
The
	employer,
	by
	the
	above
	actions,
	has
interferred
	with 	Local
	22
	in 	the
exercise 	of
	their 	rights
	under
	the
Rodda
	Act;
...
Following
	an
	investigation 	of 	the 	unfair 	practice 	charge,
the 	regional
	director
	determined
	that
	the
	employees
	would 	be
able
	to 	exercise
	their
	free 	choice 	in
	a
	decertification
election
	and
	ordered
	that 	election
	to
	be
	held
	on
	May
	4,
2
1978.
	The
	election
	was 	so
	held,
	CSEA
	receiving
	a
	majority
2Board
	Resolution
	#14
	provides 	in 	pertinent 	part:
1)
	It 	shall
	be 	the 	policy 	of 	regional
	staffto 	evaluate 	each
	representation 	case
	and
decertification 	case 	where 	pending 	unfair
practice 	charges 	have 	been
	filed 	with
3

of
	the 	votes
	cast.
3
On 	May
	9,
	1978,
	SEIU
	filed
	objections
	to
the
	conduct
	of
	the
	election.
	These
	objections
	included 	the
grounds
	relied
	on
	in 	appealing
	the
	election
	order.
DISCUSSION
The
	regional
	director's
	notice 	of 	April
	4 	was
	intended 	to
provide
	10
	calendar
	days
	from
	date 	of 	service
	to
	file
	an
	appeal
from
	the 	order 	to 	conduct 	the
	election.
	SEIU
	interpreted 	that
notice
	as
	providing
	it
	with
	10
	working
	days
	from
	its
	receipt.
4	
In
	Vista
	Unified
	School
	District,
	decided
	July
	19, 	1978,
PERB
	held
	that
	a
	similar 	notice
	was
	ambiguous
	and
	inadequate 	to
bar 	acceptance
	of
	an
	administrative
	appeal
	which 	would
	have
otherwise
	been
	untimely. 	Operating
	under
	his
	understanding
	at
the 	time,
	however,
	the
	regional
	director
	proceeded 	to 	conduct
the
	election
	when
	SEIU's 	time
	to 	appeal
	had
	apparently
expired.
	It
	is,
	therefore,
	impossible 	to 	defer
	the
	election
	as
SEIU
	requests
	through
	this
	appeal.
	However,
	since 	the
respect
	to 	the
	negotiating 	unit
	in
question.
	In 	each
	case
	where
	there 	is
	a
pending
	unfair 	practice
	charge,
	a
determination
	shall
	be 	made 	on
	whether 	or
not 	to 	conduct 	the
	election, 	stay
	the
election
	or
	impound
	the
	ballots.
3Gov. 	Code
	sec.
	3544.7(a) 	provides
	that
	upon
	receipt 	of
a
	decertification 	petition,
	the 	Board:
•.• 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 •..•
4PERB
	Order 	No. 	Ad-43.
4

objections
	to
	the
	election 	filed
	by 	SEIU
	will 	effectively
dispose 	of 	the
	same
	issues,
	and
	others,
	the 	appeal
	is
	therefore
dismissed.
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	appeal
	by
	Service
	Employees
	International
	Union,
Local
	22,
	AFL-C
IO
	of 	the 	order
	by
	the
S-a.cr-amenforegional
di
rec tor
	to
	conduct
	a
	decertification
	election
	in
	the
Folsom-Cordova
	Unified
	School
	District 	is
	dismissed.
____
--
By
:f1arry7Gluck, 	Chairperson	
f
/er
ilou
	Cossack
	Twohey, 	Memb~f~·
Raymond
	J.
	Gonzales,
	concurring:
I
	agree 	with
	the majority 	that 	this
	appeal 	should 	be
dismissed
	and
	that
	the
	objections
	to 	the
	election 	filed
	by 	SEIU
will 	effectively
	dispose 	of 	the
	issues 	raised
	by
	the 	appeal.
However, 	I
	reason 	as
	follows.
As
	this
	case
	illustrates,
	the 	regional
	director's
administrative 	decision 	could
	be
	challenged
	either
	by 	means
	of
an
	administrative 	appeal 	or
	objections 	to 	the 	conduct
	of 	the
election.
	Accepting
	this 	administrative 	appeal 	as 	timely 	filed
1
pursuant 	to 	Vista 	Unified 	School
	District,
	I
	find 	that 	the
1(8/19/78)
	PERB
	Order 	No. 	Ad-43.
5

more
	appropriate 	of
	the
	two
	methods
	of 	challenge
	is
	the
objections
	to 	the
	con9uct
	of
	the
	election,
	and 	on
	this
	basis
dismiss
	the
	administrative
	appeal.
I
	trust
	the
	regional
	directors
	to
	use
	their 	discretion
	in
deciding
	whether 	or
	not 	to
	conduct
	an
	election.
	Thev
	are
experts
	in 	the 	area 	of 	labor
.relations
	and
	have
	full
	knowledge
of
	the
	situation
	in
	a
	district
	in
	which
	they
	order
	an
election.
	Since 	they
	are
	knowledgeable
	experts,
	with
	the
supposed
	ability
	to
	make
	correct
	judgments
	in
	critical
situations,
	I 	do
	not
	think
	it
	is
	necessary 	to
	allow
	an
administrative
	appeal
	from
	each
	and
	every
	one
	of
	their
decisions. 	Specifically,
	I 	do
	not
	think
	it
	is
	necessary 	to
allow
	an
	administrative
	appeal
	from 	a
	regional
	director's
decision
	to
	conduct
	an
	election.
I 	would
	expect 	to
	uphold
	the
	regional
	director's
	decision
in
	the
	great 	majority 	of
	such
	cases. 	Further,
	another
	avenue
of
	appeal
	is 	available.
	If
	a
	party 	objects 	to 	the 	conduct 	of
an
	election,
	the 	issue
	can 	be
	determined
	by means
	of
	objections
to
	the 	conduct
	of 	the
	election 	filed 	after
	the
	election 	is
held.
	Not
	only 	does
	this
	course 	take 	advantage
	of 	the
expertise
	and
	field
	knowledge
	of 	the 	regional
	directors,
	but
	it
saves 	the 	time
	and
	expense
	of 	processing 	appeals
	which
	the
election
	may
	render
	moot
	or
	which
	present 	issues
	which
	will
only
	be
	relitigated
	in
	a
	hearing
	on
	objections 	to 	the 	conduct
of 	the
	election.
In 	the 	present 	case,
	it
	is 	probable 	that
	SEIU 	would 	have
withdrawn
	this 	appeal
	if 	it
	had 	won 	the 	election. 	Similarly
	it
6

would
	not
	have
	filed
	objections
	to 	the
	conduct
	of 	the
election.
	Thus,
	the
	issues
	involved
	in
	this
	appeal
	would
	not
be
	before 	the
	Board
	at
	all,
	saving
	time
	and
	expense
	for
	both
the
	Board 	and
	all
	parties.
Although
	SEIU
	did
	not
	win
	the
	election,
	the
	dismissal
	of
this
	appeal
	and
	consideration
	of 	the
	issues 	raised
	therein
	by
means
	of
	the
	objections
	to 	the
	conduct
	of 	the
	election
	save
time
	and
	expense.
	The
	matters 	raised 	in 	the
	appeal
	involve
complex
	facts
	which
	will
	be
	presented
	and
	considered
	at
	the
hearing
	on
	the
	objections
	to 	the
	conduct
	of 	the
	election.
	No
purpose
	would 	be
	served
	by
	investigating
	the
	identical 	facts
	in
resolving
	this
	administrative
	appeal.
Thus,
	since
	I
	believe 	that
	the
	regional
	~irectors
	should
be
	trusted
	to
	direct 	elections
	only
	when
	appropriate,
	and
	that
such
	decisions
	should
	be
	reviewed
	only 	through
	objections
	to
the
	conduct
	of 	the
	election,
	I 	would
	dismiss
	this
	appeal.
7

STATE
OF
CAUFORNIA
EDMUND
G.
BROWN JR.,
Co,,..,nor
PUBLIC
EMPLOYMENT
RELATIONS
	BOARD
"acramento Regional Office
,
23	
12th
Street,
Suite
300 ·Sacramento, California 	95814
(916) 322-3198
March
	30,
	1978
Virgil
	W.
	Jensen,
	Employer-Employee
	Relations
Folsom 	Cordova
	Unified
	School
	District
1091 	Coloma
	Street
Folsom,
	CA
	95630
Suzanne 	P.
	Cassell,
	Representative
California
	School
	Employees
	Association
24~4 	Arden	
Way,	
Suite
	105
Sacramento,
	CA
	95825
Pat 	Hallahan, 	Representative
Service
	Employees
	International
	Union
Local
	22,
	AFL-CIO·
903 	-
	30th
	Street
Sacramento,
	CA
	95816
Dear
	Interested 	Parties:
/
Please
	be
	advised
	that
	pursuant 	to
	Rule~o.3240,
	Public
	Employment
Relations
	Board,
	the
	Regional
	Director
	has
	made 	an
	administrativedetermination
	on a
	petition
	for
	decertification 	of
	the 	exclusive
representative
	for
	Classified
	Employees
	in
	the
	Transpor.tatio.n 	Unit
in
	the
	Folsom 	Cordova
	Unified
	School
	District.
The
	decertification 	petition 	filed 	is
	timely
	and
	is
	supported
by
	at 	least 	thirty
	percent
	(30%)
	of
	the
	employees
	in
	the
	established
unit.
	The
	Regional
	Director 	finds
	that
	a
	question 	of 	representation
exists
	and
	directs 	that
	an
	election	
be	
held.
The
	ballot
	choices
	for
	the
	upcoming
	election will
	be 	between
the
	California
	School 	Employees
	Association
	and
	No
	Representation.Further.
	election 	details 	will	
b.e	
forthcoming 	from
	the 	Sacramento
Regional 	Office,
	PERB.
• 	4
If
	you 	have 	any
	questions 	regarding 	this 	matter, 	please
	call
Carmen 	Ochoa
	at
	(916) 	322-3198.

Notice
	is
	also
	given
	that
	any
	party
	may
	obtain
	a
	review
	ofthis•,action
	by
	filing
	an
	appeal
	with 	the 	Executive
	Director 	within
ten
	(10)
	calendar
	days.
	The
	appeal 	should
	contain
	a
	complete
	state-
ment
	setting
	forth
	the
	facts
	and
	reasoning
	upon
	which
	the 	appeal
	is
based.
	Copies
	of
	any
	appeal
	must 	be
	served
	upon
	all
	other
	parties
to
	this
	action
	with
	an
	additional
	·copy
	to
	the
	Sacramento
	Regional
Office.
Sincerely,	
.•
'flf'?
William
	E.
	Brown~
Regional
	Director
By
Carmen Ochoa
Regionil 	Representative
WEB/CO/jd