San Jose-Evergreen Community College District (PERB A216E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN JOSE/EVERGREEN COMMUNITY
COLLEGE DISTRICT FACULTY
ASSOCIATION,

Case No. SF+AC-23
(R-365)

Exclusive Representative,

and
Administrative Appeal
CALIFORNIA TEACHERS ASSOCIATION/NEA,
PERB Order No. Ad-216
Employee Organization,
October 29, 1990
and

SAN JOSE~EVERGREEN COMMUNITY
COLLEGE DISTRICT,

Employer.

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Appearances: Robert J. Bezemek and Katherine J. Thomson,
Attorneys, for San Jose/Evergreen Community College District
Faculty Association; California Teachers Association by A. Eugene
Huguenin, Jr., Attorney, for California Teachers Association/NEA;
Liebert, Cassidy & Frierson by Jerfrey Sloan, Attorney, for San-
Jose Evergreen Community College District.

Before Hesse, Chairperson; Shank and Camilli, Members.
_ DECISION
HESSE, Chairperson: The California Teachers Association
(CTA) appeals the administrative determination (attached hereto)
of the Board agent granting the request of the San Jose-Evergreen
Community College District Faculty Association (Association)! for

an amended certification pursuant to the Public Employment

‘prior to its disaffiliation with CTA, the Association was
identified by the name San Jose Community College District
Chapter of the California Teachers Association (SJCCDCCTA).

Relations
	Board
	(PERE
	or
	Board)
	Regulation
	32761
2
to
	reflect
	its
disaffiliation
	with
	CTA
	and
	the
	National
	Education
Association
(NEA).
CTA
	appeals
	from
	the
	Board
	agent's
	conclusions
	that:
	(1)
	the
changes
	resulting
	from
	the
	disaffiliation
	with
	CTA
	were
	not
sufficiently
	dramatic
	to
	alter
	the
	local 	organization's
	identity;
and,
	(2)
	the
	disaffiliation
	election
	was
	conducted
	with 	adequate
due
	process 	safeguards
	in
	accordance
	with
	the
	Association's
constitution.
3
CTA
	also
	appeals 	the
	Board
	agent's
	denial 	of
	a
request 	for
	formal
	hearing
	wherein
	the
	Board
	agent
	found
	that
there
	were
	no
	material
	facts 	in 	dispute,
	no
	credibility
	issues 	to
be
	resolved,
	and 	any
	legal
	arguments
	presented	
by	
the
	parties
were
	thoroughly 	discussed
	in
	the
	Association's
	petition
	and
	CTA's
2PERB
	Regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	Title
	8,
	Section
	31001,
	et
	seq.
	PERE
	Regulation
32761
	provides,
	in 	pertinent,
	part:.
(a)
	An
	employee
	organization
	may
	file
	with
the 	regional
	office
	a
	request 	to
	reflect
	a
change
	in
	its
	identity 	in 	the 	event 	of
	a
merger, 	amalgamation,
	affiliation
	or
	transfer
of
	jurisdiction 	affecting
	it.
3
At
	p.
	11
	of 	the 	Administrative 	Determination, 	the
	Board
agent
	cited
	NLRB
	v. 	Commercial
	Letter.
	Inc. 	(8th
	Cir.,
	1974)
496
	F.2d
	35, 	40,
	as 	holding
	that
	a
	change
	in
	dues
	structure
	by
itself
	or 	in
	conjunction with 	other
	minor
	organizational
	changes,
will
	not 	prevent
	a
	finding 	of 	continuity 	of 	representation.
	The
court,
	however,
	did 	not
	make
	that 	specific 	holding 	but ~ather,
found
	the 	National
	Labor
	Relations
	Board
	did 	not 	abuse
	its
discretion.
	Nevertheless, 	the
	Board
	agent's 	citation
	of
Commercial 	as
	authority 	for 	her 	finding
	is
	harmless
	error.
	As 	we
found
	in
	South 	County 	Community
	College
	(1990)
	PERB
	Order
	No.
Ad-215, 	p. 	15,
	citing 	Seattle-First
	National
	Bank
	v.
	NLRB
(9th 	Cir.,
	1989) 	892
	F.2d 	792, 	798,
	certain
	changes 	due
	to
	an
association's 	disaffiliation,
	such 	as 	changes
	in
	dues
	structure,
are 	inherent 	in 	the 	reorganization
	and 	should 	not 	be 	afforded
significant weight. 
2

response.
	Finally,
	attempting
	to
	clarify
	its
	position
	on
	appeal,
CTA
	contends
	that
	the
	amended
	certification
	should
	not
	be
	granted
because
	the
	local
	Association
1 s
	election
	did 	not
	sufficiently
reflect
	the
	"majority
	view''
	since
	only
	18
	percent 	of 	the
bargaining
	unit
	was
	permitted
	to
	participate.
	CTA
	argues
	that
the
	results
	of
	the
	election
	were
	rendered
	unreliable
	because
	the
election
	was
	limited 	to 	Association
	members
	only.
The
	Board,
	after
	review
	of
	the
	entire
	record,
	adopts
	the
administrative
	determination
	as
	the 	decision
	of 	the
	Board·itself,
consistent
	with 	our
	discussion
	in
	South
	County
	Community
	ColJ.ege
District,
	supra,
	PERB
	Order
	No.
	Ad-215.
	Further,
	we
	find
	that
each
	of 	the 	legal
	arguments
	set 	forth
	by
	CTA
	were
	adequately
addressed 	in
	South 	County, 	and,
	therefore, 	will
	not
	be
	reexamined
here.
4
We
	write 	further,
	however,
	to
	address
	the 	additional
issue 	raised
	by
	the
	San
	Jose-Evergreen
	Community
	College
	District
4we
	note
	that
	the 	local 	association
	and
	CTA
	in
	this
	case 	are
represented
	by
	the
	same
	legal
	counsel
	who
	represented
	CTA
	and
	the
disaffiliated
	association 	in
	South 	County,
	supra.
	We
	further
note
	that,
	with
	a
	few
	factual 	differences,
	CTA
	in
	its
	exceptions
and
	the 	Association
	in
	its
	response,
	in
	this
	case,
	advance
	the
identical 	legal
	arguments
	that
	were 	advanced 	by
	the
	parties 	in
South 	County.
	Specifically,
	CTA
	argued
'that
	the
	amended
certification
	should
	be
	denied 	because:
	(1)
	disaffiliation 	is
	not
covered
	by
	PERB
	Regulation
	32761; 	(2)
	the
	originally 	certified
union,
	which
	CTA
	purports 	to 	represent,
	opposes
	the
disaffiliation;
	(3)
	there
	have 	been
	substantial
	changes
	in 	the
local 	association's 	identity
	such
	that
	the
	disaffiliated 	localassociation 	is
	not 	the
	same
	organization
	~s
	the
	affiliated
organization
	and,
	therefore,
	a
	change
	in 	the 	bargaining
representative
	has 	occurred; 	(4)
	the 	results
	of 	the 	localAssociation
1 s
	election, 	to 	decide 	whether 	to
	disaffiliate, 	arerendered 	unreliable 	as 	an
	indicator 	of 	the 	"majority
	view"
	sinceonly
	members
	of 	the 	Association
	were
	permitted 	to 	participate;
and, 	(5)
	a
	formal 	hearing 	should 	be 	conducted 	"on
	the 	various
legal 	issues 	presented 	herein." 	(South 	County 	Community
	College
District, 	supra,
	PERB
	Order
	No.
	Ad-215, 	pp. 	5-7, 	25.)
3

(District), 	and 	joined 	in 	by 	the 	Association, 	that 	the 	Board
determine 	the 	effective 	date 	of 	disaffiliation. 	We 	will 	also
address 	CTA's 	contention 	that 	the 	Board 	agent 	improperly 	denied
its 	request 	for 	a 	formal 	hearing.
FACTUAL 	BACKGROUND
On 	or 	about 	October 	13, 	1989, 	notices 	were 	given 	to 	members
of 	the 	local 	Association 	stating 	that 	there 	would 	be
informational 	meetings 	held 	later 	that 	month 	to 	discuss 	the
question 	of 	whether 	to 	disaffiliate 	from 	"CTA/NEA." 	CTA
representatives 	received 	notice 	of 	the 	informational 	meeting~
being 	held 	and were 	invited, 	along 	with 	other 	representatives 	of
labor 	organizations, 	to 	participate 	in 	the 	discussions. 	The 	CTA
representative 	did 	not 	attend 	the 	informational 	meetings;
however, 	it 	is 	clear 	that 	interested 	parties 	had 	ample
opportunity 	to 	discuss 	the 	disaffiliation 	issue. 	The 	record
indicates 	that 	CTA/NEA 	distributed 	at 	least 	eight 	bulletins 	in
its 	attempt 	to 	persuade 	the 	membership 	not 	to 	follow 	the
Association 	leadership's 	recommendation 	to 	disaffiliate. 5
Ballots 	were 	distributed 	to 	Association 	members 	through
their 	faculty 	mail 	boxes 	in 	late 	November, 	1989. 	The 	Association
utilized 	the 	standard 	two-envelope 	ballot 	procedure 	wherein 	the
actual 	ballot 	is 	contained 	in 	an 	envelope 	with 	no 	markings 	and
enclosed 	in 	an 	outer 	envelope 	which 	is 	signed 	by 	the 	member.
5The 	leadership 	of 	the 	Association 	remained 	unchanged 	as 	a
result 	of 	the 	disaffiliation 	vote.
4

Members 	of 	the 	Association were 	requested 	to 	indicate 	their
acceptance 	or 	rejection 	of 	the 	proposed 	change 	to 	four 	articles
in 	the 	Association's 	constitution. 6 The 	proposed 	changes 	were:
(1) 	change 	of 	the 	name 	of 	the 	Association 	from 	San Jose/Evergreen
Community 	College 	Faculty 	Association 	of 	the 	California 	Teachers
Association 	to 	San 	Jose/Evergreen 	Community 	College 	District
Faculty Association; 	(2) 	deletion 	of 	the 	provision 	that 	the
Association 	shall 	be 	affiliated 	with 	CTA 	and 	NEA; 	(3) 	deletion 	of
a 	provision 	that 	would 	allow 	membership 	in 	CTA 	and 	NEA; 	and
(4) 	modify 	the 	dues 	article 	to 	reflect 	that 	dues 	would 	be
deducted 	for 	membership 	in 	the 	local 	Association 	only 	and
eliminated 	dues 	deduction 	for 	unified 	membership 	in 	CTA 	and 	NEA.
The 	result 	of 	the 	December 	14, 	1989 	election was 	that 	61 	votes
were 	cast 	in 	favor 	of, 	and 	15 	votes 	against, 	disaffiliation.
Accordingly, 	the 	decision 	to 	disaffiliate 	exceeded 	the 	two-thirds
vote 	required 	for 	changes 	in 	the 	Association's 	constitution.
On 	December 	21, 	1990, 	the 	Association 	filed 	a 	Request 	for
Amended 	Certification with 	PERB 	pursuant 	to 	Regulation 	32761.
Pursuant 	to 	PERB 	Regulation 	32762, 	the 	District 	filed 	a 	response
on 	January 	4, 	1990, 	indicating 	that, 	based 	on 	information
available 	at 	the 	time, 	it 	had 	no 	objection 	to 	the 	change. 	CTA
filed 	a 	Response 	in 	Opposition 	to 	the 	Request 	for 	Amended
Certification 	on 	January 	29, 	1990.
6 The 	By-Laws 	of 	the 	Association, 	which 	laid 	out 	nomination
and 	election 	procedures, 	terms 	and 	duties 	of 	office, 	and 	the
powers 	of 	the 	Executive 	Board, 	remained 	unchanged 	by 	the
disaffiliation.
5

DISCUSSION
1. 	Request 	for 	Hearing
CTA 	argues 	in 	its 	appeal 	that 	the 	Board 	agent 	erroneously
failed 	to 	conduct 	an 	evidentiary 	hearing 	to 	resolve 	disputed
facts 	regarding 	the 	degree 	of 	participation by 	CTA's
representatives. 	CTA 	also 	contends 	that 	the 	Board 	agent's
conclusion 	amounts 	to 	an 	acceptance 	of 	the 	Association's 	version
of 	these 	"disputed" 	facts 	over 	CTA's 	version 	without 	explanation
for 	her 	preference. 	Under 	PERB 	regulations, 	however, 	the 	Board
7
may 	conduct 	investigations 	or 	hold 	hearings 	as 	deemed 	necessary.
In 	this 	case, 	the 	Board 	agent 	made 	findings 	of 	fact 	describing
the 	degree 	of 	involvement 	of 	CTA 	staff 	with 	the 	Association 	in
its 	employment 	relations 	with 	the 	District 	prior 	to 	the
disaffiliation. 	As 	part 	of 	her 	findings, 	the 	Board 	agent 	stated
the 	positions 	of 	the 	parties 	as 	follows:
7. 	According 	to 	CTA, 	during 	fiscal 	years
1987-88 	and 	1988-89, 	CTA 	Field 	Representative
Judy 	Mason 	regularly 	represented 	SJCCDCCTA
with 	employer 	representatives 	in 	employee
grievance 	meetings, 	other 	employment-related
meetings, 	arbitration 	and 	both 	formal 	and
informal 	contract 	negotiations. 	CTA Attorney
Ramon 	Romero 	represented 	SJCCDCCTA 	in 	two
unfair 	practice 	cases 	before 	PERB.
8. 	According 	to 	the 	Association, 	Mason
attended 	only 	one 	or 	two 	bargaining 	sessions
7PERB 	Regulation 	32763 	states, 	in 	pertinent 	part:
(a) 	Upon 	receipt 	of 	a 	request 	filed 	pursuant
to 	section 	32761, 	the 	Board 	shall 	conduct
such 	inquiries 	and 	investigations 	or 	hold
such 	hearings 	as 	deemed 	necessary 	in 	order 	to
decide 	the 	questions 	raised 	by 	the
request.
6

in 	three 	years 	as 	an 	observer, 	not 	a
participant. 	In 	the 	20-25 	negotiating
sessions 	which 	have 	taken 	place 	over 	the 	six
months 	prior 	to 	the 	filing 	of 	the 	instant
request, 	Mason 	has 	had 	minimal 	contact 	(one
telephone 	call) 	with 	the 	District's
negotiator. 	Of 	the 	two 	unfair 	practice
charges 	filed 	by 	the 	Association with
Romero's 	assistance 	in 	the 	last 	four 	years,
one 	was 	withdrawn 	shortly 	after 	filing 	in
1989. 	Only 	two 	formal 	grievances 	have 	been
filed 	by 	unit 	members 	in 	the 	past 	four 	years.
In 	one 	of 	these 	grievances, 	one 	of 	the
grievant's, 	an 	attorney, 	represented 	the
grievants 	at 	the 	arbitration. 	While 	CTA may
have 	been 	requested 	to 	assist 	in 	the
investigation 	of 	two 	or 	three 	potential
grievances 	in 	1987-88, 	none 	went 	to
arbitration. 	Approximately 	ten 	faculty
complaints 	in 	the 	past 	three 	to 	four 	years
have 	been 	resolved 	by 	local 	association
officers 	without 	the 	assistance 	of 	CTA.
(Administrative 	Determination, 	pp. 	5-6.)
Based 	upon 	these 	findings, 	the 	Board 	agent 	concluded:
In 	this 	case, 	the 	same 	officers 	remain 	in
place 	and 	the 	negotiating 	team 	continues 	to
be 	comprised 	of 	local 	Association 	members.
Although 	CTA 	field 	representative 	Judy 	Mason
and 	Attorney 	Ramon 	Romero 	will 	no 	longer 	be
available 	to 	the 	local, 	their 	participation
in 	past 	activities 	has 	been 	minimal.
(Administrative 	Determination, 	p. 	11,
emphasis 	added.)
CTA 	does 	not 	dispute 	that 	the 	same 	officers 	remained 	in place,
nor 	that 	the 	negotiating 	team 	continued 	to 	be 	comprised 	of, 	or
controlled 	by 	local 	Association 	members. 	CTA 	only 	contends 	a
factual 	dispute 	exists 	as 	to 	the 	level 	of 	its 	participation 	in
the 	activities 	of 	the 	Association 	prior 	to 	the 	disaffiliation.
After 	reviewing 	paragraphs 	7 	and 	8, 	quoted 	above, 	we 	see 	no
significant 	inconsistency 	in 	the 	parties' 	positions. 	Based 	upon
her 	investigation, 	the 	Board 	agent 	apparently 	determined, 	as
.
7

indicated 	in
	paragraph
	8,
	that
	the
	statistical
	information
provided
	by
	the 	Association
	simply
	clarified
	in
	more
	detail
	the
specifics
	of
	CTA
1 s
	claim
	that
	it
	"regularly
	represented"
	the
Association. 	In
	its
	filings,
	CTA
	did
	not
	dispute 	the
Association
1 s
	account
	of
	its
	involvement 	nor
	does
	it
	allege 	other
facts
	~n
	support 	of
	its
	generalized
	statement
	that
	it
	regularly
represented
	the 	Association
	in
	dealings
	with
	the
	District.
Under
	PERB
	Regulation
	32763, 	however,
	a
	hearing
	may
	be
deemed
	necessary
	where,
	among
	other 	things, 	the
	parties
1
positions
	on
	a
	factual 	issue
	are
	inconsistent
	or
	diametrically
opposed.
	Since,
	in
	this
	case, 	the
	essential 	facts
	are 	not
disputed
	and
	the
	remaining
	issues
	can
	and 	were
	thoroughly
discussed
	by
	the
	parties
	in
	their
	briefs 	filed
	with
	the
	Board,
	a
hearing
	is
	not 	necessary.
Moreover,
	we
	do
	not 	consider 	the
	degree 	of
	CTA's
participation,
	in
	and
	of
	itself, 	critical
	to
	the
	resolution
	of
this
	case.
	As
	stated 	in
	South
	County
	Community
	College
	District,
supraJ
	PERB
	Order
	No.
	Ad-215,
	at
	p.
	13,
	in
	reviewing 	the
	totality
of 	the 	situation, 	factors
	considered
	significant 	in 	determining
if
	there
	has 	been
	a
	change
	in 	the 	identity
	of 	the 	exclusive
representative 	include:
.
	those 	bearing
	on
	the 	originally
certified 	association's 	interaction
	with
management 	and
	the
	ability
	of 	the 	local
members
	to 	continue 	to 	affect
	and
	control 	the
actions 	of 	the
	officers 	elected 	to 	represent
their 	interests.
	[
Ci
tat
ions.
]
(Emphasis 	added.)
..
8

Therefore, 	even 	if 	CTA 	alleged 	facts 	indicating 	its 	involvement
with 	the 	local 	was 	significantly 	greater, 	such 	facts, 	by
themselves, 	would 	not 	be 	sufficient 	to 	require 	a 	hearing, 	nor
would 	they 	be 	conclusive 	as 	to 	whether 	there 	has 	been 	a
substantial 	change 	in 	the 	identity 	of 	the 	exclusive
representative.
Nevertheless, 	with 	respect 	to 	the 	Board 	agent's 	conclusion
that 	CTA's 	participation 	has 	been 	minimal, 	the 	record 	amply
supports 	her 	findings. 	CTA's 	own 	bulletins 	opposing 	the
disaffiliation 	indicate 	that 	CTA 	field 	representative 	Judy 	Mason
had 	"assisted 	with 	bargaining" 	(emphasis 	added), 	and 	that 	''Fran
McBrien8 is 	stalling 	at 	the 	bargaining 	table 	.. 	• " I 	thus,
indicating 	that 	the 	Association's 	officers 	remained 	in 	control 	of
the 	essential 	representation 	contacts 	with 	the 	employer. 	The
most 	significant 	indication 	of 	the 	nature 	of 	CTA's 	representation
activities 	appears 	in 	a 	letter 	from 	the 	District's 	legal 	counsel
responding 	to 	CTA's 	request 	to 	continue 	meeting 	after 	the
disaffiliation with .i.:t§. 	representatives 	as 	opposed 	to 	the
Association's 	representatives. 	The 	District's 	attorney 	states:
. 	we 	are 	not 	now 	in 	a 	position 	to 	accept
your 	contention 	that 	the 	District 	(1) 	must
cease 	dealing 	with 	the 	individuals 	from
within 	the 	District who 	have 	historically
acted 	as 	representatives 	of 	the 	exclusive
representative, 	and 	(2) 	must 	commence 	dealing
with 	an 	individual 	who 	has, 	as 	far 	as 	I 	am
aware, 	not 	been 	on 	the 	scene.
8Fran 	McBrien was 	the 	President 	of 	the 	Association 	prior 	to
the 	disaffiliation 	vote 	and 	continued 	to 	hold 	that 	office 	at 	all
times 	relevant 	herein.
9

Indeed, 	were 	we 	to 	comply 	with 	your 	demand 	to
deal 	with 	Ms. 	Mason 	and 	refuse 	to 	deal 	with
individuals 	with which 	the 	Dist~ict 	has 	been
negotiating 	historically. 	we 	would 	almost
undoubtedly 	be 	the 	subject 	of 	unfair 	practice
charges 	by 	the 	local 	association."
(Emphasis 	added.)
Therefore, 	in 	light 	of 	the 	statements 	made 	by 	CTA 	and 	the
Association 	in 	their 	written 	responses 	to 	the 	Board 	agent 	and 	the
exhibits 	attached 	to 	those 	responses, 	we 	conclude 	that 	the 	Board
agent 	properly 	denied 	CTA's 	request 	for 	a 	hearing 	on 	this 	matter
based 	on 	the 	results 	of 	her 	investigation.
2. 	Effective 	Date 	of 	Disaffiliation
Although 	the 	issue 	was 	not 	specifically 	raised 	or 	addressed
by 	either 	the 	Board 	agent 	or 	any 	of 	the 	three 	parties 	below, 	the
District 	has 	requested 	that 	the 	Board 	address, 	in 	this 	appeal,
the 	question 	of 	the 	effective 	date 	of 	disaffiliation. 9 In
support 	of 	its 	request, 	the 	District 	states 	that 	after 	the
Association's 	disaffiliation, 	conflicting 	demands 	for 	dues
deductions 	were 	placed 	upon 	it 	by 	CTA 	and 	the 	Association.
Consequently, 	the 	District 	contends, 	it 	was 	required 	to 	decide
whether 	to 	continue 	dues 	deductions 	for 	CTA/NEA 	as 	an 	affiliate
or 	to 	initiate 	new 	deductions 	for 	the 	Association 	during 	the
pendency 	of 	the 	appeal. 	In 	response 	to 	the 	conflicting 	demands,
the 	District 	deposited 	the 	dues 	deducted 	from 	bargaining 	unit
members 	into 	an 	interest 	bearing 	account 	pending 	resolution 	of
9 See 	PERB 	Order 	No. 	Ad-211.
10

the 	effective 	date 	of 	disaffiliation. 10 The 	record 	is 	unclear 	as
to 	the 	exact 	amounts 	deposited.
The 	District 	also 	argues 	that 	although 	the 	Board 	is 	not
legally 	obligated 	to 	determine 	the 	"effective 	date" 	of
disaffiliation 	at 	this 	time, 	the 	issue 	should 	be 	addressed 	to
remove 	a 	cloud 	of 	instability 	and 	prevent 	protracted 	litigation
over 	the 	issue 	and 	ascertain 	the 	respective 	rights 	and
obligations 	of 	the 	parties 	concerning 	the 	escrowed 	dues. 	The
District 	further 	contends 	that 	failure 	to 	address 	the 	issue 	in
this 	proceeding 	would 	result 	in 	litigation 	over 	proper
disbursement 	of 	the 	dues 	in 	other 	forums. 	Finally, 	the 	District
argues 	that 	the 	number 	of 	unfair 	practice 	charges 	arising 	out 	of
the 	disbursement 	of 	the 	dues 	demonstrates 	that 	the 	uncertainty
regarding 	the 	effective 	date 	is 	contributing 	to 	an 	inhospitable
labor 	relations 	environment.
The 	Association 	joins 	the 	District 	in 	the 	request 	to 	have
the 	Board 	determine 	the 	effective 	date 	of 	disaffiliation 	and 	it
10 It 	is 	noted 	that 	there 	are 	three 	unfair 	practice 	charges
currently 	held 	in 	abeyance 	by 	the 	San 	Francisco 	Regional
Attorney. 	Those 	charges 	are: 	(1) 	San 	Jose-Evergreen 	CCD, 	Case
No. 	SF-CE-1408, 	wherein 	the 	Association 	charges 	the 	District 	with
denying 	rights 	guaranteed 	under 	Government 	Code 	sections 	3543 	and
3543.l(d) 	in 	violation 	of 	section 	3543.S(b) 	by 	refusing 	to 	honor
any 	of 	the 	authorizations 	for 	new dues 	amounts; 	(2) 	San 	Jose-
Evergreen CCD, 	Case 	No. 	SF-CE-1403, 	wherein CTA 	charges 	the
District 	with 	showing 	preference 	for 	the 	Association 	by 	not
continuing 	to 	forward 	organizational 	dues 	as 	had 	been done 	prior
to 	disaffiliation; 	and 	(3) 	California 	Teachers 	Association/NEA
(San 	Jose-Evergreen 	CCD 	Faculty Association), 	Case 	No. 	SF-CO-404,
wherein 	the 	Association 	charged 	that 	CTA 	accepted 	dues 	deducted
from 	unit 	members 	subsequent 	to 	the 	disaffiliation 	and 	thereby
attempted 	to 	cause 	the 	employer 	to 	commit 	violations 	of 	section
3543.5.
11

contends 	that 	amendments 	of 	certification 	historically 	contain
only 	a 	date 	of 	issuance, 	but 	no 	date 	of 	effect.
Responding 	to 	the 	District 	and 	Association's 	request 	that
the 	Board 	decide 	this 	issue, 	CTA 	argues 	that 	a 	ruling 	on 	the
effective 	date 	of 	disaffiliation would 	be 	premature 	without 	an
evidentiary 	record 	on 	issues 	concerning 	the 	rights 	and 	duties 	of
the 	parties. 	CTA 	further 	contends 	these 	issues 	were 	neither
argued 	to 	the 	Board 	agent 	nor 	raised 	in 	the 	initial 	appeal 	and
therefore 	cannot 	be 	decided 	here. 11 CTA 	also 	claims 	that 	issues
concerning 	the 	effective 	dates 	of 	rights 	under 	the 	Educational
Employment 	Relations 	Act 	(EERA) 	section 	3543.1 12 are 	not
11 This 	position 	has 	no 	merit, 	as 	the 	resolution 	is 	legal
rather 	than 	factual.
12 EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code. 	Section 	3543.1 	states, 	in 	pertinent
part:
(a) 	Employee 	organizations 	shall 	have 	the
right 	to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that 	once 	an 	employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only 	that 	employee
organization may 	represent 	that 	unit 	in 	their
employment 	relations 	with 	the 	public 	school
employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may 	make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership.
(d) 	All 	employee 	organizations 	shall 	have
the 	right 	to 	have 	membership 	dues 	deducted
pursuant 	to 	Sections 	13532 	and 	13604.2 	of 	the
Education 	Code, 	until 	such 	time 	as 	an
employee 	organization 	is 	recognized 	as 	the
exclusive 	representative 	for 	any 	of 	the
12

representational 	issues 	but, 	rather, 	are 	subject 	to 	PERB's 	unfair
practice 	jurisdiction and 	procedures. 	CTA 	supports 	this
conclusion 	by 	asking 	the 	Board 	to 	compare 	various 	sections 	of
EERA 	pertaining 	to 	representational 	issues 	with 	those 	pertaining
to 	unfair 	labor 	practice 	procedures, 	but 	offers 	no 	further
analysis 	of 	the 	comparison.
Because 	the 	District, 	joined 	by 	the 	Association, 	has
requested 	the 	Board 	to 	decide 	the 	effective 	date 	of
disaffiliation 	and 	to 	leave 	the 	issue 	unsettled 	would 	provide
little 	guidance 	to 	the 	parties 	concerning 	their 	respective
obligations 	and 	would 	thereby 	generate 	new 	litigation, 	we 	will,
in 	the 	interest 	of 	judicial 	economy, 	address 	the 	issue 	at 	this
time.
The 	District 	contends 	the 	disaffiliation 	is 	not 	effective
until 	a 	final 	order 	has 	been 	issued 	by 	the 	Board 	granting 	the
amended 	certification. 	CTA 	similarly 	argues 	that 	the 	exclusivity
rights 	arising 	under 	section 	3543.1 	become 	effective 	upon 	the
date 	of 	issuance 	of 	the 	certification. 	The 	Association, 	in
contrast, 	argues 	the 	disaffiliation 	is 	effective 	as 	of 	the 	date
of 	the 	Association 	membership's 	election 	to 	disaffiliate. 13
employees 	in 	an 	appropriate 	unit, 	and 	then
such 	deduction 	as 	to 	any 	employee 	in 	the
negotiating 	unit 	shall 	not 	be 	permissible
except 	to 	the 	exclusive 	representative.
13 Each 	of 	the 	parties, 	in 	response 	to 	the 	Board's 	Order 	For
Briefing 	on 	this 	issue, 	submitted 	arguments 	together 	with 	their
points 	and 	authorities 	in 	support 	of 	their 	respective 	positions.
13

For
	the
	reasons
	that
	follow,
	we
	hold
	that
	where
	there
	is
	no
question
	concerning
	representation 	raised
	by
	the
	change
	and 	an
amended
	certification 	is
	determined
	to
	be
	appropriate, 	the
organization's 	right
	to 	receive 	properly 	authorized
	dues
deductions
	in
	its
	new
	status
	becomes
	effective
	as
	of
	the
	date 	of
the 	Association's 	decision
	to
	disaffiliate.
	In
	arriving
	at 	this
conclusion,
	we
	are
	guided
	by
	precedent 	of
	the
	National
	Labor
Relations
	Board
	(NLRB)
	and
	federal 	courts
	on
	this
	subject.
(Carlsbad 	Unified
	School
	District
	(1979)
	PERB
	Decision
	No.
	89;
Los
	Angeles
	Unified
	School
	District
	(1976)
	EERB
14
Decision
	No.
	5;
Firefighters
	Union,
	Local
	1186,
	International
	Association 	of
Firefighters,
	AFL-CIO
	v.
	City 	of
	Vallejo,
	et 	al.
	(1974)
	12
	Cal.3d
608
	[116
	Cal.Rptr. 	507].)
Specifically,
	we
	note 	the
	Court
	of
	Appeal
	in
	St.
	Vincent
Hospital
	v.
	NLRB
	(10th
	Cir.,
	1980)
	621
	F.2d
	1054
	[104
	LRRM
	2288]
found
	that
	the
	rights
	of 	the 	exclusive 	bargaining 	agent 	flow
	from
the 	date
	of
	disaffiliation
	and
	not
	from
	the 	date
	of
	the
	amended
certification.
	In
	that
	case, 	the
	certified
	bargaining
represent~tive,
	the 	St.
	Vincent 	Hospital 	Professional
	Performance
Association
	(PPA), 	was
	affiliated
	with 	the
	New
	Mexico
	Nurses
Association,
	a
	branch 	of 	the
	American 	Nurses
	Association.
	On
February
	28, 	1978,
	the
	members
	of
	PPA
	became
	dissatisfied
	with
the
	state
	organization
	and
	voted 	to
	disaffiliate
	with 	the
	New
Mexico 	Nurses
	Association
	and
	affiliate
	with
	District
	1199
	NM
	of
14
Prior 	to 	January 	1, 	1978 	PERB 	was 	known
	as 	the 	EducationalEmployment 	Relations 	Board. 
14

the 	National 	Union 	of 	Hospital 	Care 	Employees, 	RWDSU, 	AFL-CIO.
The 	NLRB 	Regional 	Director 	granted 	the 	certification 	amendment 	on
April 	28, 	1978. 	Based 	upon 	its 	finding 	that 	there 	was 	a
continuity 	of 	representation, 	the 	court 	held:
. 	when 	PPA's 	members 	expressed 	their
desire 	to 	affiliate 	with 	the 	National 	Union
and 	become 	members 	of 	District 	1199 	NM 	on
February 	28, 	1978, 	District 	1199 	NM 	became
the 	successor 	to 	PPA 	as 	the 	bargaining
representative 	of 	the 	hospital's 	nurses.
(Id. 	at 	104 	LRRM 	2291, 	emphasis 	added.)
This 	principal 	is 	similarly 	recognized 	in 	decisions 	of 	the
NLRB. 	In 	National 	Carbon Company 	(1956) 	116 	NLRB 	488, 	the 	NLRB
reviewed 	the 	effect 	of 	a 	consolidation 	agreement 	between 	two
employee 	organizations 	on 	the 	board's 	order, 	issued 	prior 	to
consolidation.directing 	the 	employer 	to 	bargain with 	one 	of 	the
organizations. 	In 	concluding 	that 	the 	consolidated 	organization
was 	a 	continuation 	of 	the 	original 	union, 	the 	board 	stated 	the
organization 	succeeded 	to 	the 	status 	of 	the 	original 	organization
as 	the 	duly 	designated 	bargaining 	representative 	of 	the
employer's 	employees. 	(ill..., 	at 	p. 	502.) 	Moreover, 	in 	directing
that 	an 	amending 	certification 	should 	issue, 	the 	board 	stated 	at
footnote 	17:
This 	is 	not 	to 	be 	construed 	as 	a 	new
certification 	or 	as 	an 	extension 	of 	the
certification 	heretofore 	issued.
Furthermore, 	the 	representative 	status 	of
OCAW 	in 	this 	case 	inheres 	by 	virtue 	of 	its
successorship 	on March 	14, 	1955, 	to 	the
bargaining 	right 	of 	its 	certified
predecessor, 	and 	does 	not 	flow 	from. 	or 	take
effect 	on 	the 	date 	of, 	this 	amended
15

certification.(Id., 	at
	p.
	504;
	emphasis
	added.)
15
Thus,
	we
	conclude
	that
	when
	there
	is
	no
	question
	of
representation 	raised,
	the
	rights
	of
	the 	exclusive 	bargaining
agent 	(including
	its
	entitlement 	to
	dues
	deductions)
	flow
	from
the 	date
	of
	affiliation/disaffiliation
	and
	not
	from
	the
	date
	of
the
	Board's 	granting 	the
	amendment
	of
	certification.
16
The
	District,
	in
	responding
	to
	the
	Association's
	position,
contends
	that 	reliance
	on
	NLRB
	precedent
	is
	misplaced
	since 	cases
previously
	cited
	by
	the 	Association
	dealt
	with
	a
	different
	issue,
i.e.,
	the 	obligation
	of 	the
	employer
	to 	negotiate
	with
	a
successor
	of
	the
	original
	exclusive
	representative.
17
The
District
	attempts
	to
	buttress
	this
	position
	by
	pointing 	out
	that
EERA's
	section
	3543.l(d)
	is
	unique
	and
	has
	no
	NLRA
	parallel.
15
The
	statement
	that
	an
	amended
	certification 	is
	not
	to
	be
construed
	as
	a 	new
	certification
	has 	been
	incorporated
	into
	PERB
Regulation 	32763(c),
	which
	states 	in 	pertinent 	part,
	"Such
certification
	shall
	not
	be
	considered 	to
	be
	a 	new
	certification
for 	the
	purpose 	of
	computing 	time
	limits
	pursuant
	to 	section
32754
	of 	these 	regulations." 	Additionally,
	March
	14, 	1955 	was
the 	date 	the 	consolidation
	agreement
	was
	completed.
16
In
	this
	case, 	the 	date 	of
	disaffiliation 	is
	December 	14,
1989,
	the 	date 	the 	ballots
	were 	counted.
17
The
	District
	notes
	that 	the
	PERB
	Regional 	Office 	during
the 	course 	of 	the 	present 	proceeding, 	but 	prior 	to 	the 	conclusion
on
	the
	Board
	agent's 	investigation, 	refused
	a
	request 	for
	impasse
determination/appointment 	of 	mediator 	because
	PERB
	records 	did
not
	reflect
	the 	Association
	was
	the 	currently 	certified 	exclusive
representative 	of 	the 	unit 	in 	question.
	The 	Board
	agent's
determination 	regarding 	the 	impasse 	request, 	pending 	her
investigation 	of 	the 	request 	for
	amended
	certification,
	was
appropriate. 
16

This
	argument
	is
	rejected.
	Although
	initially
	many
	cases
arising
	under
	the
	NLRA
	were
	based
	on
	a
	refusal 	to
	bargain,
18
the
NLRB
	and
	the
	federal 	courts
	have 	found
	that
	the
	violations
constituted
	both
	an
	employer's
	refusal
	to
	recognize
	and
	bargain
with
	a
	successor
	union.
	(For 	example,
	see
	St.
	Vincent
	Hospital
v.
	NLRB,
	supra,
	621
	F.2d
	1054
	[104
	LRRM
	2288];
	May
	Department
Stores
	v.
	NLRB
	(7th
	Cir.
	1990)
	897
	F.2d
	221
	[133
	LRRM
	2745];	
and
NLRB
	v.
	Insulfab
	Plastics,
	Inc,
	(1st 	Cir.
	1986)
	789
	F.2d
	961
[122
	LRRM
	2105].)
	Further, 	the
	concepts 	of
	exclusivity
	and
recognition, 	together
	with
	an
	employer's 	duty
	to
	bargain 	with 	the
exclusive 	representative,
	are
	part
	and
	parcel
	of 	the 	basic
	rights
provided
	employees 	and
	their
	chosen
	representative,
	under
	both
EERA
	and
	the
	NLRA.
	EERA
	section 	3543.l(d),
	although 	having	
no
direct 	parallel
	to
	the
	NLRA,
	provides 	the 	recognized
	bargaining
representative
	of 	public
	school
	employees
	with
	no
	less
	important
protection
	of
	exclusivity
	than
	does
	section
	159(a)
	of 	the
	NLRA. 19
18
The
	issue 	of
	whether
	the
	District
	committed 	an
	unfairlabor 	practice
	by
	refusing 	to 	bargain with 	the 	exclusive
representative 	did 	not
	arise 	in
	this
	case. 	In
	fact,
	the
	parties
have
	indicated 	that
	the 	Association
	and
	District
	reached 	an
agreement
	on
	a
	collective
	bargaining 	contract
	subsequent
	to 	the
Association's 	request 	for
	an
	amendment
	to
	certification.
19
29
	U.S.C.
	section
	159(a)
	states:
(a)
	Representatives 	designated 	or 	selected
for 	the 	purposes 	of
	collective 	bargaining
	by
the 	majority 	of 	the
	employees
	in
	a
	unitappropriate 	for
	such 	purposes,
	shall
	be
	the
exclusive 	representatives 	of
	all
	theemployees
	in
	such
	unit 	for 	the 	purposes 	of
collective 	bargaining 	in 	respect 	to 	rates 	ofpay, 	wages, 	hours 	of 	employment,.
or 	other
conditions 	of
	employment: 	Provided, 	That 	any
individual
	employee 	or
	a
	group 	of 	employees
17

Thus,
	the
	duty
	to
	bargain
	with
	an
	employee
	organization
	is
essentially
	a
	corollary 	to
	the
	employer's 	duty
	to
	recognize
	that
organization.
	(See
	Morris,
	The
	Developing
	Labor
	Law
	(2d
	ed.
1983),
	p.
	601.)
The
	District
	further
	contends
	that
	if
	the
	effective 	date
	of
disaffiliation 	is
	the 	date 	of 	the 	Association's
	internal 	vote,
two
	problems
	are 	created.
	First,
	the
	District
	would
	be
	forced 	to
closely
	monitor
	the
	local 	Association's
	disaffiliation 	efforts.
Second,
	the
	District
	would
	be
	required 	to
	correctly
	determine
whether
	the 	successor 	organization
	should
	be
	recognized,
	e.g.,
whether
	there
	is
	substantial
	continuity
	of 	the 	exclusive
representative.
20
If
	it
	incorrectly
	determined
	the
	validity
	of
the
	disaffiliation,
	the
	District
	argues,
	it
	could
	be
	charged 	with
shall
	have
	the
	right 	at
	any
	time
	to 	present
grievances
	to
	their
	employer 	and
	to
	have 	such
grievances 	adjusted,
	without
	the 	intervention
of 	the 	bargaining
	representative,
	as 	long 	as
the
	adjustment
	is
	not
	inconsistent
	with
	the
terms
	of
	a
	collective-bargaining 	contract 	or
agreement
	then
	in 	effect:
	Provided
	further,
That
	the 	bargaining
	representative
	has 	been
given 	opportunity 	to
	be
	present
	at
	such
adjustment.
(Emphasis
	in 	original.)
20
specifically,
	the
	District
	contends
	it
	would 	be
fundamentally
	unfair 	to 	require
	districts
	to
	analyze
	and
	decide
complex
	legal 	issues 	without 	guidance
	from
	PERB
	concerning:
.
	whether 	the
	change
	in 	identity
	(1) 	was
procedurally 	valid,
	(2) 	conformed
	to 	the
organization's 	internal 	rules,
	(3) 	was
accomplished 	through 	democratically 	conducted
ratification
	by
	unit
	employees, 	and, 	(4)
	reflected
a
	continuation 	of 	the 	original 	entity
	as 	opposed
to
	a
	"substantially 	different" 	organization,
requiring 	scrutiny 	of 	the 	structure
	and
	leadership
of 	the
	new 	and 	succeeding 	organization.
18

violating
	its
	duty,
	under
	Government
	Code
	section 	3543.l(d),
	to
forward
	dues
	deductions
	solely 	to
	the 	exclusive
	representative,
or
	its
	duties
	under
	the
	Education
	Code
	related
	to
	deduction 	of
membership
	dues.
21
In 	support 	of
	these
	arguments,
	the
	District
relies
	on 	San
	Mateo
	Community
	College
	District
	(1985)
	PERB
Decision
	No.
	543
	wherein
	the
	Board
	stated:
Section 	3543.l(d)
	essentially 	sets
	out
	two
independent
	rules:
	one
	is
	that
	an 	employer	
!!l.:l.lil
honor 	dues
	deduction
	authorizations 	for
	an
exclusive
	representative;
	the
	other
	is
	that
	the
employer
	must
	not
	honor 	dues
	deduction
authorizations 	for
	any
	other
	employee
	organization
when
	the
	employees
	are 	represented
	by
	an
	exclusive
representative.
(Id.,
	p.
	6,
	emphasis
	in
	original.)
While
	the
	District's
	concerns
	are
	not 	unwarranted,
	its
arguments 	are.
nevertheless 	unpersuasive.
	As
	the
	above
	cited
portion
	of 	the
	Board
1 s
	decision
	in
	San
	Mateo
	indicates, 	the
essence 	of
	section
	3543.l(d)
	is
	the 	recognition
	of
	an 	employee
organization
	as
	the 	exclusive
	representative,
	albeit
	in 	the
domain
	of
	dues
	deductions.
	The
	question
	is
	not 	whether
	a
	public
school
	employer 	must 	choose 	between
	two
	competing
	organizations.
Rather,
	it
	is 	at
	what
	point
	do
	the
	rights
	of
	a
	"successor"
organization
	assume
	the 	status
	of 	exclusivity, 	including
	all
	of
the
	rights
	guaranteed
	an
	exclusive 	representative
	under	
EERA?
Since
	we
	have 	found
	a
	"question 	of 	representation" 	did 	not
	exist
in
	this
	case, 	the 	Association, 	in
	its 	disaffiliated 	status,
inhered 	to
	all
	the 	rights, 	obligations,
	and
	duties
	it
	had
	prior
21
See 	Education
	Code
	section
	87833
	providing, 	in 	part, 	that
certificated
	employees
	may
	authorize,
	by
	written 	revocable
authorizations, 	deductions 	of 	membership 	dues.
19

to 	disaffiliation. 	(See 	South 	County 	Community 	College 	District,
supra, 	PERB 	Order 	No. 	Ad-215, 	p. 	15.) 	Consequently, 	the
Association 	had 	the 	right 	to 	collect 	dues 	in 	its 	disaffiliated
status 	as 	of 	the 	date 	of 	disaffiliation. 22
Finally, 	we 	recognize 	that 	an 	employer 	informed 	of 	a
disaffiliation 	vote 	may 	be 	faced 	with 	a 	dilemma 	as 	to 	the 	proper
disbursement 	of 	dues 	deductions. 	We 	also 	note 	that 	an 	employer
acts 	at 	its 	own 	peril 	if 	it 	refuses 	to 	bargain with 	or 	recognize
the 	exclusive 	representative 	without 	demonstrating 	"by 	objective
considerations 	that 	it 	has 	some 	reasonable 	grounds 	for 	believing
the 	union 	has 	lost 	its 	majority 	status. 11 	(NLRB 	v. 	Financial
Institution 	Employees 	(1986) 	475 	U.S. 	192, 	198 	[121 	LRRM 	2741] .)
Further, 	as 	noted 	in 	our 	decision 	in 	South 	County 	Community
College 	District, 	supra 	at 	footnote 	5, 	a 	public 	school 	employer
has 	no 	authority, 	under 	PERB's 	regulations, 	to 	independently 	file
a 	petition 	to 	raise 	the 	question 	of 	representation. 	The 	only
opportunity 	a 	public 	school 	employer 	has 	to 	raise 	a 	question 	of
representation 	under 	the 	regulations 	is 	when 	an 	employee
organization 	files 	for 	an 	amended 	certification. 	The 	NLRB,
conversely, 	expressly 	provides 	that 	an 	employer 	can 	initiate 	the
investigation 	by 	filing 	its 	own petition 	as 	to 	whether 	the 	change
in 	the 	status 	of 	the 	exclusive 	representative 	creates 	a 	question
concerning 	representation. 	The 	differences 	in 	the 	regulations
underlying 	the 	NLRA 	and 	EERA 	are 	significant, 	in 	this 	instance,
in 	formulating 	a 	workable 	rule 	to 	guide 	public 	school 	employers
22 see 	footnote 	16, 	infra.
20

faced 	with
	competing
	claims
	for 	the
	enforcement
	of
	rights
	granted
to
	employee
	organizations
	under
	section
	3543.1.
	Because
	it
	is
not
	the
	employer's
	responsibility
	to
	monitor
	the 	local
Association's
	disaffiliation 	efforts,
	a
	matter 	the
	federal 	courts
and
	PERB
	have
	held
	to
	be
	"internal"
	(See
	South
	County
	Community
College
	District,
	supra,
	p.
	20.),
	when
	faced 	with
	competing
claims
	on
	dues
	deduction
	rights
	due
	to
	changes
	resulting
	from 	an
affiliation/disaffiliation,
	we
	find
	that
	an 	employer
	may
	take
reasonable 	steps 	to
	avoid 	improper
	disbursement 	pending
	the
Board's 	decision,
	such
	as
	placing 	the 	disputed
	membership
	dues
	in
an
	interest
	bearing 	account.
CONCLUSION
We
	find 	the
	Board
	agent
	correctly
	determined
	that 	there
	was
no
	question
	of
	representation 	raised
	by
	the
	petition
	for
amendment
	of
	certification
	inasmuch
	as
	the
	changes
	resulting
	from
disaffiliation
	of 	the 	Association
	from
	CTA
	were
	not
	sufficiently
dramatic
	to
	alter
	the 	Association's
	identity,
	and
	that
	the
disaffiliation
	election
	was
	conducted 	with 	adequate
	due
	process
safeguards.
	Furthermore, 	the
	Board
	agent
	had
	before 	her
sufficient
	uncontested
	facts 	to
	make 	a
	determination without 	the
need
	for
	formal
	hearing. 	Finally,
	we
	find 	the
	amendment
	of
certification 	effective
	as 	of
	December 	14, 	1989,
	the 	date 	of 	the
disaffiliation
	vote.
ORDER
Upon
	the 	foregoing 	decision
	and
	the 	entire 	record 	in 	this
matter, 	the
	Board 	hereby
	GRANTS
	the 	Association's 	petition 	for
	an
21

amended 	certification 	and 	DENIES 	the 	request 	by 	CTA 	for 	a 	formal
hearing.
Member 	Camilli 	joined 	in 	this 	Decision.
Member 	Shank's 	concurrence 	begins 	on page 	23.
22

Shank, 	Member, 	concurring: 	I 	agree 	with 	the 	majority 	to 	the
extent 	it 	is 	consistent 	with 	my 	concurrence 	in 	South 	County
Community 	College 	District 	(1990) 	PERB 	Order 	No. 	Ad-215.
23

-

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN JOSE/EVERGREEN COMMUN:TY
COLLEGE DISTRICT FACULTY
ASSOCIATION,
Exclusive Representative,
and
CALIFORNIA TEACHERS ASSOCIATION/NE.A,
Employee Organization,
SAN JOSE-EVERGREEN COMMUNITY
COLLEGE DISTRICT,
Employer.
)
)
)
)
)
)
)
)
)
)
)
)
}
)
)
)
)
___________________ )
Case No. SF-AC-23
(R-365)
ADMINISTRATIVE
DETERMI�.':'ION
April 19, 1990
BACKGROUND
On December 21, 1990, the San Jose/Evergreen ColDlunity
College District Faculty Association (Association) filed with
this office a request for an a.mended certification pursuant to
PERB regulation 32761 1 to reflect its disaffiliation with the
California Teachers Association/National Education Association
(CTA). The request indicated that the Associat:on had changed
its name from the San Jose Community College District Chapter of
the California Teachers Association (SJCCDCCTA). 2 SJCCDCCTA has
1PERB regulation 32761 provides I in pertine::t part:
(a) A n employee organization may file wit=. the regional
office a request to reflect a change in its identity in the
event of a merger, a.a.lgamation, affiliatic� or transfer of
jurisdiction affecting it.
2cTA asserts that the name change is ineffective, since the
Chapter's Executive Board announced the change ui October, 1989,
prior to undertaking any Constitutional proceed..:...ngs to do so.
However, this ignoreE the fact that the name change was

been
	recognized
	as
	the
	collective
	bargaining 	representative 	of
the
	certificated
	unit 	in
	the
	San
	Jose-Evergreen
	co-unity
	College
District
	(District)
	since
	1977.
On
	December
	21, 	1989,
	the
	District
	and
	CTA
	were
	informed
	by
the 	undersigned
	that
	an
	investigation 	regarding
	the
	proposed
disaffiliation
	had
	been
	initiated
	and
	responding 	statements	
fro ■
both
	parties
	were
	requested.
On
	January
	4,
	1990,
	the
	District 	filed
	a
	responding
available,
	it
	had
	no
	objections
	to 	the
	changes.
	However,
	the
District
	reserved 	the
	right 	to
	alter
	its
	position
	if
	necessary.
3
On
	January
	29, 	1990,
	CTA,
	purporting
	to
	represent 	both
	the
California
	Teachers	
Association
	and 	SJCCDCCTA,
	its
	affiliated
chapter,
	filed
	a
	brief
	in 	opposition
	to
	the 	request.
	The
Association
	filed
	a
	responding 	b=ief 	on 	February
	20, 	1990.
CTA'S
	Objections
CTA's
	objections 	to
	the 	reqt:est
	for
	amended
	certification
reflecting 	disaffiliation
	are	
SUD1.arized	
as 	follows:
First,
	that 	disaffiliation
	is 	not 	covered
	by
	PERB
	regulation
32761.
Second,
	that
	even
	if
	disaff::iation 	is
	covered,
	it
	should
not
	be
	allowed
	in 	the 	face 	of 	op;:,osition 	from
	the
	originally
subsequently 	voted
	upon
	in
	accorc..ance
	with 	the 	Chapter's
Constitution 	prior 	to 	the 	filing
	of 	the 	instant 	request, 	as
discussed 	herein.
2The
	District
	has 	not 	altere~ 	this 	position.

certified
	exclusive
	representative,
	which
	CTA
	purports
	to
	still
represent.
Third, 	that
	the
	Association
	is
	a
	substantially
	different
organization
	than
	SJCCDCCTA,
	the
	originally
	certified
	exclusive
representative,
	and
	should
	therefore
	not
	be
	granted	
successor
status.
Fourth,
	that
	due
	process 	safeguards
	were
	not
	met
	in
	the
disaffiliation
	process
	since 	the
	bargaining
	unit	
as
	a	
whole
	was
nc~
	afforded
	the
	c;;ort~nity
	to
	vote
	en
	the
	disaffiliation.
Finally,
	CTA
	requests
	a
	hearing
	•on
	the 	various
	issues•
raised 	in 	this
	case,
	absent
	a
	denial
	of 	the
	request 	for
	an
a.mended
	certification.
Facts
The
	investigation 	in
	this
	matter
	has
	revealed 	the 	following
information:
1.
	Article
	Nine-Amendments
	of 	the
	SJCCDCCTA
	Constitution
provides:
1. 	Changes
	in
	this
	Constitution
	or
	its
	Bylaws	
must	
be
by
	written
	ballot 	distributed
	by
	the
	president 	to
	all
members
	of
	the 	Association.
2.
	If
	school
	is
	not 	in 	session, 	these
	ballots
	must 	be
mailed
	to 	the
	last
	known
	address 	of
	all
	Association
members.
3.
	The
	period 	of 	voting 	shall
	be
	ten
	days 	from
	the
distribution 	or 	mailing 	of
	such
	ballots.
4. 	Proposed 	changes
	in 	the 	Constitution
	and 	Bylaws
shall
	be
	submitted 	to 	the
	membership
	at
	the 	request 	of
a
	majority 	of 	the
	members
	of 	the 	executive 	board, 	or 	at
the 	written 	petition 	received
	by
	the 	executive 	hoard
signed 	by
	one-third 	of 	the
	membership
	of 	the
Association, 	itemizing 	specific 	changes.
3

5.
	Changes
	in
	the
	Constitution
	shall
	require
	a
	two-
thirds
	majority
	of
	the
	ballots
	received.
6.
	Changes
	in
	the
	Bylaws
	shall
	require
	a
	vote
	of
	over
fifty
	percent
	(SO\)
	of 	the
	ballots
	received.
2.
	Discussions 	regarding
	disaffiliation
	began
	approximately
in 	aid-October. 	Informational 	aeetings	
were 	announced 	on
October
	6
	and
	held
	on
	October
	26,
	1989
	at
	both
	campuses.
Representatives
	of
	several
	independent
	faculty 	associations
	spoke
at
	the
	meeting.
	Although
	invited,
	CTA
	Representative
	Judy
	Mason
~as
	unable 	to
	attend.
	The
	~ss~e
	of
	disaffiliation
	was
	discussed
in
	two
	Association 	newsletters
	prior
	to 	the
	election,
	and
	in
	at
least
	eight
	CTA
	fliers
	and 	one
	Association
	flier
	after
	the
ballots
	were
	mailed
	and
	prior 	to
	the
	ballot
	count.
3.
	On
	November
	29, 	1990,
	secret 	ballots
	were
	placed
	in
Association
	members'
	mailboxes
	at
	both
	campuses.
	One
	ballot
	was
mailed
	to
	a
	member's
	last
	known
	address.
	The
	ballot
	informed
	the
voter
	that
	a
	vote
	in
	favor 	of
	the
	amendments
	to
	the
	Constitution
would
	be
	a
	vote
	for
	disaffiliation
	with
	CTA,
	and	
a	
vote
	against
The
	the
	amendments 	would
	be
	a
	vote
	for
	continuing
	affiliation.
wording
	on
	the
	ballot
	was
	as
	follows:
1.
	ARTICLE
	ONE-NAME 	CHANGE	
FROM:
The 	name
	of
	this
	organization
	shall
	be
	the
	San
	Jose/
Evergreen
	Community
	College
	District
	Faculty
Association 	of 	the 	California
	Teachers•
	Association,
hereafter 	called
	the 	Association.
TO:
The 	name
	of 	this 	organization 	shall
	be
	the
	San
Jose/Evergreen
	Community
	College
	District 	Faculty
Association, 	hereafter 	called 	the 	Association.
YES	
NO
2.
	DELETE:
ARTICLE 	TWO-AFFILIATION
______ 	______
4

The
	Association
	shall
	be
	affiliated
	with 	the
	California
Teachers'
	Association	
and	
the
	National 	Education
Association.
YES	
NO
3.
	ARTICLE 	THREE-MEMBERSHIP 	DELETE 	SECTION
	2:
Associate
	Members:
	Certificated
	employees
	who
	are
	not
eligible 	to
	become	
aem.bers	
of
	the
	San
	Jose/Evergreen
Community
	College
	District
	Faculty
	Association
	of
	the
California 	Teachers'
	Association 	aay,	
upon
	payaent 	of
state
	and
	NEA
	dues,
	become
	associate	
members	
of
	the
state
	organization 	of
	the
	California 	Teachers'
Association
	and
	of
	the
	NE.A.
YES	
_
NO
4.
	ARTICLE 	FOUR-DOES
	CHANGE
	FROM:
Se:tio~
	2.:
	Un1f1e~
	dues
	sta::
	be
	suffic1e~t 	to
	cove=
membership
	in
	this
	local
	chapter, 	the
	California
Teachers•
	Association,
	and
	the 	National 	Education
Association.
TO:
Unified 	dues
	shall
	be
	sufficient 	to
	cover	
aembership	
in
this 	local 	chapter.
YES	
NO
______ 	______
______ 	_____
______ 	______
4. 	Separate
	ballot
	counts
	were
	conducted
	at
	each
	campus 	on
December 	14,
	1989.
	Of
	the
	approximately
	125
	Association
	members,
76
	returned
	ballots.
	61
	votes
	were
	cast
	in 	favor
	of 	the
amendments;
	15
	votes
	were
	cast 	against
	the
	ui.endments.
	Thus,
	over
two-thirds
	of
	the
	ballots
	returned
	were
	in 	favor 	of
	amending
	the
Constitution 	to
	reflect 	disaffiliation
	with
	CTA/NEA.
5.
	The
	officials
	of 	the
	Association
	elected 	prior 	to
	the
disaffiliation
	vote 	remain
	in 	office
	and
	continue
	to 	deal 	with
the
	District
	management.
	The
	bargaining
	team
	is
	comprised 	solely
of
	local 	Association
	members.
6. 	In
	its 	affiliated 	status,
	the 	exclusive 	representative
is 	eligible
	for
	a
	variety 	of 	professional 	assistance
	and
	services
from 	CTA.
7. 	According 	to
	CTA,
	during 	fiscal 	years 	1987-88 	and 	1988-
8 0	
..,.,
..
• I 	C ..i.r.	
Field 	Representative 	Judy 	Meson
	regularly 	represented

SJCCDCCTA
	with
	employer
	representatives 	in
	employee
	grievance
meetings,
	other
	employment-related
	aeetings, 	arbitration
	and
	both
formal
	and
	informal
	contract
	negotiations.
	CTA
	Attorney
	Ramon
Romero
	represented
	SJCCDCCTA
	in
	two
	unfair
	practice 	cases 	before
PERB.
8.
	According
	to
	the
	Association,
	Mason
	attended
	only
	one
	or
two
	bargaining
	sessions 	in
	three 	years
	as
	an
	observer,
	not
	a
participant.
	In 	the
	20 	-
	25
	negotiating
	sessions
	which 	have
instant
	request,
	Mason
	has 	had 	minimal
	contact
	(one
	telephone
call)
	with 	the
	District's
	negotiator.
	Of
	the
	two
	unfair 	practice
charges 	filed
	by
	the 	Association 	with
	Romero's	
assistance	
in
	the
last	
four 	years,
	one 	was
	withdrawn
	shortly 	after 	filing 	in
	1989.
Only
	two
	formal 	grievances 	have 	been
	filed
	by
	unit
	•embers
	in
	the
past
	four 	years.
	In
	one
	of
	these 	grievances,
	one
	of
	the
grievants,
	an
	attorney, 	represented 	the 	grievants
	at
	the
arbitration.
	While
	CTA
	may
	have 	been
	requested 	to
	assist 	in
	the
investigation
	of
	two
	or
	three
	potential
	grievances
	in
	1987-88,
none
	went
	to 	arbitration,
	Approximately 	ten 	faculty 	complaints
in 	the 	past 	three 	to
	four
	years
	have
	been 	resolved	
by	
local
Association 	officers 	without 	the
	assistance
	of
	CTA.
DISCUSSION
PERB
	Regulation
	32761
As
	CTA
	noted 	in
	its 	brief,
	PERE
	regulation
	32761
	does 	not
expressly 	include
	the 	word
	•disaffiliation.•
	However,
	In 	Ventura
Community 	College 	District
	{1982) 	PERE 	Order 	No. 	AD-130, 	PERB
6

asserted
	its
	jurisdiction
	over
	such	
cases 	by
	considering
	an
appeal
	of
	an
	administrative
	determination
	denying	
a	
request 	to
amend
	a
	certification
	to
	reflect
	a
	disaffiliation
	of
	a
	local
union
	from
	an
	international
	union.
	While 	the
	Board
	upheld
	the
determination,
	it
	did
	so
	based
	on
	the	
facts	
in 	the	
case,	
not
	on
	a
lack 	of
	jurisdiction
	under
	EERA.
	Citing 	decisions
	of
	the
National
	Labor
	Relations
	Board
	(NLRB),
	the
	Board
	determined
	that
the 	issuance 	of
	an
	amended
	certification
	to
	reflect
	a
	change
	in
is
	only
	appropriate 	in
	cases
	where 	no
	question
	concerning
representation
	exists.
In
	Anaheim
	City
	School
	District
	(1983)
	PERB
	Decision
	No.
349,
	the
	Board
	expressly
	addressed
	its
	jurisdictional
	policy
regarding
	disaffiliation
	under
	regulation
	32761,
	holding
	that
while 	•[n]ormally,
	a
	change	
of 	exclusive
	representative
	occurs
	as
a
	consequence
	of
	a
	decertification
	proceeding
	...
	the 	existence
of 	subsection
	3541.3(m)
4
makes
	it
	clear
	that
	the 	Legislature 	did
not 	intend
	that 	decertification
	be
	the 	sole
	means 	by
	which
	a
change
	in 	representation
	can
	be
	accomplished.•
The
	NLRB
	and
	the 	federal 	courts
	also
	support 	the 	use
	of
amendment
	of
	certification
	procedures
	to 	reflect 	disaffiliations
4
Section
	3541.3(m)
	provides 	that 	the
	PERB
	shall
	have
	the
power 	and
	duty:
To
	consider 	and 	decide 	issues 	relating 	to 	rights,
privileges
	and
	duties 	of 	an 	employee
	organization 	in
the 	event 	of
	a
	merger, 	amalgamation, 	or 	transfer 	of
jurisdiction
	between 	two
	or
	more 	employee
organizations. 
7

of
	local
	unions
	from
	parent
	unions
	when
	applicable
	standards
	are
met.
	See,
	e.g.,
	McDermott
	and
	Co.,
	Inc.
	v.
	NLRB
	(CA 	5
	1978)
	571
F2d
	850
	and
	Canterbury
	Villa
	of
	Waterford
	(1986)
	282
	NLRB
	462,
125
	LR.RM
	1021.
	As
	it
	stated
	in
	Ventura, 	supra,
	the
	Board
	is
•guided
	by
	precedent
	of 	the
	NLRB
	and
	federal
	courts 	regarding
appropriateness
	of
	amendment
	of
	certification.•
	Thus	
CTA's
argument
	that
	an 	amendment
	of
	certification
	pursuant
	to
	a
disaffiliation
	is
	improper 	under
	PERB
	regulation
	32761
	is
	without
mer~t.
As
	stated
	above,
	the 	issuance 	of
	an
	a.aended
	certification,
absent
	an
	election,
	is
	appropriate
	when
	it
	is
	determined
	that
	no
question
	concerning
	representation	
exists.	
The	
existence	
of
	a
question
	concerning
	representation
	is
	contingent
	upon
	a.
determination
	of 	•whether
	the
	entity
	seeking
	amendment
	of
certification
	is
	merely
	a
	continuation
	of 	the
	certified 	entity
under
	a 	new 	name,
	or
	is
	a
	substantially 	different 	organization.•
Ventura, 	supra.
	Such
	a
	determination
	rests
	upon 	two
	basic
factors. 	First 	is
	whether 	the
	change
	was
	procedurally
	valid,
conforming
	to
	the
	organization's 	internal 	rules,
	and
	accomplished
through 	democratically 	conducted
	ratification
	by
	unit
	employees.
Ibid.
	Recently, 	the
	U.S. 	Supreme
	Court 	overturned 	previous
	NLRB
cases
	and 	modified
	this 	factor, 	finding 	that 	only 	union
	members
are
	entitled
	to 	vote
	in
	such
	elections.
	NLRB
	v.
	Financial
Institution
	Employees 	(1986)
	475
	US
	192,
	121
	LR.RM
	2741.
The 	second 	factor 	in 	determining 	whether
	a
	question
concerning 	representation 	exists 	is
	whether 	•the 	entity 	seeking
8

an 	amendment 	of 	certification 	is 	merely 	a 	continuation 	of 	the
certified 	entity 	under 	a 	new 	name 	or 	is 	a 	substantially 	different
organization." 	Ventura, 	supra. 	Factors 	which 	the 	Board 	found
significant 	in 	deciding 	whether 	a 	substantially 	different
organization 	has 	been 	created 	include 	whether 	that 	organization
has 	•the 	same 	structure, 	the 	same 	officers, 	and 	the 	same 	stewards
and 	other 	representatives 	for 	dealing 	with 	the 	employer 	and
employees.• 	Ibid.
The 	s~p=eme 	Court 	has 	held 	ttat 	changes 	to 	an 	orga~izatic~
pursuant 	to 	an 	affiliation must 	be 	•sufficiently 	dramatic 	to
alter 	the 	union's 	identity• 	in 	order 	to 	raise 	a 	question
concerning 	representation. 	NLRB 	v. 	Financial 	Institution,
supra. 	Following 	the 	Court's 	reasoning, 	the 	NLRB 	has 	found 	that
it 	must 	determine 	whether 	the 	•changes 	are 	so 	great 	that 	a 	new
organization 	has 	come 	into 	being 	. 	• 	It 	held 	that 	the
•continuity 	requirement 	thus 	ensures 	that 	no 	one 	can 	substitute
an 	entirely 	different 	representative 	in 	disregard 	of 	the
established 	mechanisms 	for 	making 	such 	a 	change.• 	Western
Commercial 	Transport 	(1988) 	288 	NLRB 	No.31.
In 	considering whether 	to 	approve 	a 	request 	for 	an 	amended
certification 	to 	reflect 	a 	disaffiliation, 	PERB 	must 	review 	the
facts 	of 	the 	case 	to 	determine 	whether 	the 	organization 	filing
the 	request 	is 	substantially 	the 	same 	organization 	as 	it 	was
prior 	to 	the 	disaffiliation 	and 	whether 	the 	disaffiliation
process 	itself 	included 	adequate 	due 	process 	safeguards. 	If 	the
organization 	is 	found 	not 	to 	be 	substantially 	the 	same, 	then 	the
9

request
	must
	be
	dismissed
	and
	the
	petitioning
	organization
	would
be
	required
	to
	follow
	the
	decertification
	procedures
	in 	order
	to
achieve
	ce=tification
	as 	the
	exclusive
	representative.
	If
	the
organization
	is
	found
	to
	be
	substantially
	the	
same,	
but
	the
disaffiliation	
process 	lacked
	adequate 	due	
process 	safeguards,
the
	request
	would	
also	
be
	denied.
Due
	Process
In
	the
	instant	
case,	
all
	SJCCDCCTA
	members
	were
	afforded
	the
opportun:t~ 	t~
	vote
	in
	a
	secret
	ballot 	election,
	a::crding 	to
	the
provisions
	of
	the
	Constitution.
	The
	membership 	had 	ample
opportunity 	to 	discuss 	the 	issue
	and	
to
	read
	the
	various
	printed
materials
	regarding
	the
	pros
	and 	cons 	of
	disaffilation 	prior
	to
the
	election,
	which 	was
	adequately 	noticed.
CTA's
	argument
	that 	all
	bargaining
	unit
	members
	should
	have
been 	afforded
	the
	opportunity
	to
	vote 	in 	the
	disaffiliation
election 	is
	without
	merit 	in
	light
	of
	NLRB
	v.
	Financial
Institution,
	supra.
In
	light
	of 	the
	above,
	it
	is
	found
	that
	due 	process
safeguards
	were
	adequately 	ensured 	during 	the
	disaffiliation
procedure.
Substantial 	Organizational 	Continuity
CTA
	argues
	that
	the 	Association
	is
	not 	substantially
the
	same 	employee
	organization 	as
	SJCCDCCTA.
	It
	bases
	this
argument
	on
	four 	grounds: 	(1)
	that 	there 	will
	be
	a
	significant
change 	in 	the
	identity 	of 	the 	persons 	conducting 	the 	business 	of
the 	exclusive 	representative;
	(2)
	that 	the 	dues 	structure, 	as
10

well 	as 	the 	control
	over
	the
	dues
	amount
	and
	expenditure.,
	is
different;
	(3)
	that
	the
	Association
	is
	not 	subject 	to
	the
	due
process
	requirements
	for
	individual
	union
	members
	that
	CTA
requires
	of
	local
	affiliates;
	and
	(4)
	that
	there
	have
	been
significant
	by-law 	changes.
As
	stated
	above,
	an
	important
	factor 	in
	determining
organizational
	continuity
	is
	whether
	the
	successor
	organization
has
	retained
	the
	same
	representatives 	for
	dealing with
	the
In
	t:.:.s
	.:ase,
	t:Z--.e
	same
officers
	remain
	in
	place
	and
	the 	negotiating
	team
	continues
	to
	be
comprised
	of
	local 	Association 	•embers.
	Although
	CTA
	field
representative
	Judy	
Mason 	and	
attorney
	Ramon 	Romero
	will
	no
longer
	be
	available
	to 	the
	local,
	their
	participation 	in
	past
activities
	has 	been
	&.inimal.
The
	sole
	change
	in 	the 	dues
	structure
	for
	members
	of 	the
Association
	appears 	to
	result
	from
	the 	elimination
	of 	dues
	paid
to
	and 	determined
	by
	the
	state
	and
	national
	affiliates,
	CTA
	and
NEA. 	No
	change
	has
	been
	made
	to
	Section
	1
	of 	Article 	Four,
	which
states 	that
	the
	•annual
	unified
	dues
	for
	this
	Association
	shall
be
	set
	annually
	by
	its
	executive 	board.•
	The
	Association
continues 	to 	exercise 	control 	over
	its
	local
	dues, 	and
	never
	had
such 	control
	over 	the
	dues
	paid
	to
	CTA
	and
	NEA.
A
	federal 	appellate 	court 	has 	held
	that
	a
	change
	in 	dues
structure,
	by
	itself
	or 	in 	conjunction 	with 	other 	minor
organizational
	changes, 	will 	not 	prevent
	a
	finding 	of 	continuity
of 	representation.
	NLRB
	v. 	Commercial
	Letter, 	Inc. 	(8th
	Cir.,
1 1

1974)
	496
	F.2d
	35,40. 	In
	this
	case, 	the
	change
	is
	one
	which
results
	de
	fa~to
	from
	disaffiliation,
	as,
	conversely,
	would
	the
payment	
of
	additional
	dues	
likely	
result	
from
	an
	affiliation.
	As
the
	Ninth	
Circuit
	Court
	of	
Appeals
	discussed 	in	
Seattle-First
National
	Bank
	v.
	NLRB
	89
	C.D.O.S.
	9270
	(12/20/89), 	certain
organizational
	changes
	are
	inherent
	in
	an
	affiliation
	(or,
conversely,
	disaffilation)
	and
	should
	not
	be
	accorded
	significant
weight
	in 	deciding
	the
	decision
	of 	continuity.
	The
	Court
	held
that
	11
[t]~e
	ve=f
	c=dinariness
	of
	such
	factors 	strongly
	suggests
that
	something
	more
	must
	change
	before
	an
	affiliation
	raises
	a
question
	concerning	
representation.•
CTA
	claims
	that
	the 	Association,	
as
	an	
independent,
	is
	not
subject 	to 	the
	due
	process 	requirements
	for 	individual
	union
members
	that
	are 	required 	of
	all
	CTA-affiliated
	locals,
	including
open
	nomination
	procedures,
	secret 	ballot 	elections,
	one-
person/one-vote
	principle, 	etc.
	However,
	a
	review 	of
	the
Association's 	Constitution
	and
	Bylaws
	reveals
	that,
	in 	fact,
	such
safeguards 	are 	contained
	therein. 	Article
	Two
	(Nominations
	and
Elections)
	of 	the
	Bylaws,
	for
	example,
	provides
	for
	open
nominations
	for 	Association
	officers,
	as 	well 	as
	secret 	ballot
elections.
CTA
	asserts 	that 	there
	have 	been
	significant
	bylaw 	changes,
but 	neglects 	to 	point 	out 	what 	those 	changes
	are.
	In
	fact,
	it
appears 	that 	there
	have 	been 	no 	bylaw
	changes 	and 	the 	only
changes 	to 	the 	Constitution
	have 	been
	to
	change
	the
	name
	of 	the
organization 	under 	Article
	One, 	the 	elimination 	of 	Article
	Two

(Affiliation),
	and
	changes
	in 	Articles
	Three
	(Membership)
	and
Four
	(Dues)
	to
	reflect	
disaffiliation.
CTA
	also
	argues
	that
	by
	disaffiliating,
	the
	:ocal
organization
	will
	no
	longer
	be
	able
	to 	avail
	itself
	of
	the
services
	provided
	by
	the 	state
	and	
national 	organizations.
However,
	the 	elimination 	of
	services
	and
	resources
	provided
	by
its
	affiliate,
	CTA,
	does
	not
	change
	the
	fundamental
	structure
	of
the 	Association.
	This
	is
	aerely
	a
	factor
	which
	the
	membership
instant
	case,
	this
	issue
	was
	addressed
	fully 	in
	the
	publicity
preceding 	the
	elections,
	and
	did 	not	
dissuade
	a	
aajority 	of 	the
SJCCDCCTA
	members
	from
	voting 	to
	disaffiliate.
For
	the
	reasons
	stated
	above,
	it
	is
	found
	that
	the
Association
	is
	substantially
	the
	same
	organization 	as
	it
	was
prior
	to
	disaffiliation
	from
	CTA/NEA.
Opposition
	by
	the
	Originally 	Certified
	Exclusive
	i..epresentative
In
	its
	brief,
	CTA
	asserts 	that
	the 	request 	for
	an 	amended
certification
	should
	also
	be
	denied
	based
	on
	the
	opposition 	of
the 	originally 	certified
	e~clusive 	representative,
	SJCCDCCTA,
which
	it
	purports 	to 	represent.
	However, 	as
	discussed 	above, 	the
originally 	certified 	exclusive 	representative 	is
	one
	and
	the
	same
as 	the 	Association.
	Only
	a 	name
	change	
from	
San
	Jose
	Community
College 	District
	Chapter
	of 	California
	Teachers
	Association 	to
San 	Jose/Evergreen
	Community
	College 	District 	Faculty 	Association
has 	occurred.
	The
	Association 	is 	not 	represented by
	CTA,
	but,
rather,
	by
	the
	law
	offices 	of 	Robert 	J.
	Bezemek, 	as
	stated
	on 	the
1 3

original 	filing
	in
	this
	proceeding.	
CTA's	
status
	has
	merely 	been
that
	of
	a
	parent
	organization 	to
	the 	exclusive
	representative.
Furthermore,
	even
	if
	CTA
	is
	arguing
	that
	the
	disaffiliation
should 	not
	be
	allowed
	in
	the
	face
	of 	opposition
	from
	the
	parent
organization,
	the
	cases
	which
	it
	cites
	in 	support
	of
	this
argument
	are 	inapposite,
	involving
	affiliation
	of
	a
	local 	with
	an
unwilling 	parent
	organization.
	See,
	e.g.,
	Poway
	Unified 	School
District
	(1982)
	PERB
	Decision
	No.
	Ad-127.
As
	stated
	o:-.
	page
	5
	of
	CTA's
	brief, 	":a:ffiliation
	nea:-.:y
	always
involves
	mutual 	agreement 	between
	the 	predecessor
	unaffiliated
union
	and
	the 	parent 	with
	which
	it
	is 	affiliating.
	In
	the 	case
of
	disaffiliation,
	however,
	as
	here, 	there
	will	
alaost
	always
	be
disagreement
	between
	the
	two
	entities.•
	NLRB
	and
	federal 	case
law
	reasonably 	hold
	that
	a
	parent 	organization
	must
	not 	be
	forced
to
	unwillingly 	accept 	the
	affiliation
	of
	a
	local
	and
	the
responsibilities 	that
	follow.
	However,
	the 	consent
	of
	the 	parent
organization_has 	not
	been
	cited
	as
	a
	criterion
	for
disaffiliation,
	presumably 	because
	such
	a
	requirement
	would	
make
almost
	any
	attempt
.at
	disaffiliation 	realistically
	impossible.
Request
	for
	a
	Hearing
In
	its
	brief,
	CTA
	requests
	a
	formal
	hearing 	in
	the
	event
that
	the 	request 	for
	amended
	certification 	is
	not
	deni'ed.
However,
	since 	there 	are 	neither 	material 	factual 	matters
	in
dispute 	nor
	credibility 	issues 	to
	be 	resolved 	in 	this 	case, 	and
since 	the 	parties
	have 	submitted 	comprehensive, 	thorough
	briefs
in 	the 	matter,
	a
	formal 	hearing 	is
	unwarranted.
14

CONCLUSION
The
	request 	for
	an
	amended
	certification 	to
	reflect
	a
disaffiliation
	may
	be
	appropriately 	filed
	under
	PERB
	regulation
32761.
	An
	analysis
	of
	the
	facts 	in 	this
	case 	has
	revealed
	that:
(1)
	the
	changes
	resulting
	from
	the
	disaffilation
	of 	the
Association
	from
	CTA
	are 	not
	sufficiently
	dramatic
	to
	alter
	the
local
	organization's
	identity;
	and
	(2)
	the
	disaffiliation
election
	was
	conducted
	with 	adequate
	due
	process 	safeguards
	and
i~
	accordancE 	w~t~
	the
	organization's
	Const1tution.
	Thus,
	no
question
	concerning
	representation
	bas
	.been	
raised.	
While
	CTA
does
	not
	•accept• 	the
	disaffiliation,
	such
	acceptance
	is
	not
	a
requirement 	for
	approval
	of
	an
	a.mended
	certification
	to
	reflect
	a
disaffiliation.
	For
	the 	reasons
	stated 	herein, 	the
	Association's
request 	for	
an	
amended
	certification
	is
	GRANTED.
	An
	amended
certification
	will
	be
	issued 	by	
this
	office.
Right 	of
	Appeal
An
	appeal 	of
	this
	decision 	to 	the
	Board
	itself
	may
	be
	made
within 	ten
	(10)
	calendar 	days 	following 	the 	date 	of	
service 	of
this
	decision
	(PERB
	regulation
	32360).
	To
	be
	timely
	filed,
	the
original
	and
	five
	(5)
	copies 	of
	any 	appeal 	must 	be
	filed 	with 	the
Board
	itself 	at
	the 	following
	address:
MEMBERS,
	PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
1031
	18th
	Street,
	Suite
	200
Sacramento,
	CA
	95814-4174
A document
	is
	considered 	"filed•
	when
	actually 	received 	before
the 	close 	of 	business 	(5:00 	p.m.) 	on 	the
	last
	day
	set 	for 	filing,

•	
or
	when
	sent	
by	
telegraph
	or
	certified
	or
	Express
	Onited
States
	mail,
	postmarked 	not
	later
	than 	the
	last
	day
	set 	for
filing
	..
•
	(regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	&hall
	apply.
The
	appeal
	must
	state
	the
	specific 	issues
	of 	procedure,
fact,
	law 	or
	rationale
	that
	are 	appealed
	and 	must
	state
	the
grounds
	for
	the 	appeal
	(regulation
	32360(c)).
	An
	appeal
	will
	not
automatically
	prevent
	the
	Board 	from
	proceeding 	in
	this
	case.	
A
party
	seeking
	a
	stay
	of
	any
	activity
	may
	file
	such
	a
	request.
with
its
	administrative
	appeal,
	and	
aust	
include
	all
	pertinent
	facts
and
	justifications
	for
	the
	request 	{regulation
	32370).
If
	a
	timely 	appeal
	is 	filed,
	any
	other 	party
	may
	file
	with
the
	Board
	an
	original
	and
	five
	(5)
	copies
	of
	a
	response
	to
	the
appeal 	within
	then
	(10)
	calendar days
	following 	the 	date
	of
service 	of 	the 	appeal
	(regulation
	32375).
Service
Al.l 	documents
	authorized
	to
	be
	filed 	herein
	must
	also
	be
•served•
	upon
	all
	parties 	to 	the 	proceeding 	and
	on
	the
	San
Francisco 	regional 	office.	
A	
•proof 	of
	service•
	must	
accompany
each 	copy 	of
	a 	document
	served
	upon
	a
	party 	or 	filed
	with
	the
Board
	itself
	(see 	regulation
	32140
	for 	the 	required 	contents
	and
a
	sample 	form).
	The 	document
	will
	be
	considered 	properly
•served•
	when
	personally 	delivered 	or 	deposited 	in 	the
	first-
class 	mail 	postage 	paid
	and
	properly 	addressed.
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