El Rancho Unified School District (PERB 0045E)

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STATE OF 	CALIFORNIA
DECISION OF THE 	EDUCATIONAL
EMPLOYMENT 	RELATIONS 	BOARD
EL RANCHO UNIFIED SCHOOL DISTRICT,
Charging Party,
vs.
EL RANCHO FEDERATION OF TEACHERS,
LOCAL 3467, AFofT, AFL-CIO; and ) Case No. LA-CO-18
EL 	RANCHO 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Respondents.
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) 	Case No. 	LA-CO-18
EERB 	Decision 	No. 	45
December 	30, 	1977
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The 	Charging Party 	appeals 	the General 	Counsel's 	dismissal of
one 	allegation of 	its 	charge.
On March 31, 	1977 El 	Rancho Unified School 	District 	(District)
filed a charge against El Rancho Federation of Teachers, 	Local 	3467,
AFT/AFL-CIO 	(Federation) 	and El Rancho Education Association, 	CTA/NEA
(Association) 	alleging that 	they had violated Sections 	3543.6(a) 	and
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(b) 	of the Educational Employment Relations Act 	(EERA). 	The charge
alleges 	the 	following as violative of 	the EERA:
1. 	Engaging in conduct which includes 	threats,
coercion and 	intimidation of 	employees 	of
1 Gov. Code Secs. 	3543.6(a) 	and (b) provide:
3543.6. 	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.

Charging Party 	[ District] 	while Respondents
were 	engaged 	in an 	illegal work 	stoppage
for 	the 	period beginning 	9-13-76 	and ending
10-17-76 	thereby 	interfering with employees'
rights 	guaranteed 	them under 	Section 3543 	of
the Act; and
2. 	Demanding 	several 	times 	and again on 	1-24-77
that 	Charging 	Party meet 	and negotiate
despite 	the 	fact 	that no 	employee 	organization
has 	been recognized as 	the exclusive repre-
sentative 	in 	any unit 	of 	certificated employees
thereby 	attempting 	to 	cause Charging Party 	to
violate 	Section 	3543.5 	of 	the Act by 	interfering
with employees' 	rights 	guaranteed them under
Section 3543 of the Act.
On June 	15, 	1977 	the General Counsel 	dismissed the 	first 	allegation
of 	the 	charge without 	leave 	to 	amend on the grounds 	that 	the District
did not have 	standing 	to 	file 	an unfair practice 	charge which 	seeks
to vindicate and protect the rights 	of its 	employees. 	On July 27,
1977 	the 	District 	appealed 	the 	dismissal 	contending 	that 	it had stand-
ing and that, 	at a minimum, 	it should have been allowed leave 	to
amend 	the 	charge.
We 	agree with 	the District 	that 	it has 	standing 	to 	file 	its
charge and, 	accordingly, 	remand this 	case to 	the General Counsel 	for
a hearing.2
The hearing officer concluded that 	the 	District, 	as 	contrasted
to 	its 	employees, 	could not have been aggrieved by the alleged con-
duct of the Association and Federation. 	We 	disagree.
An employer necessarily has 	an interest 	in whether or not 	its
employees have been subjected to 	illegal 	threats, 	coercion or
intimidation. 	Certainly 	the 	employer has 	an interest 	in maintaining
2For 	the purpose 	of ruling 	on 	the validity of 	the 	dismissal 	of
an unfair practice charge 	for 	failure 	to 	state a case on its 	face,
we assume 	the essential 	facts 	alleged in the charge are true. 	See
San Juan Unified School District, 	EERB Decision No. 	12, 	March 10, 	1977
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a peaceful 	and harmonious 	atmosphere 	conducive 	to 	performing 	its*
function. 	Equally certain is 	that unlawful 	threats, 	coercion or
intimidation of employees 	is 	disruptive.
The 	hearing 	officer 	incorrectly 	construed 	the 	procedures 	adopted
by 	the 	Board 	for 	processing unfair 	practice 	charges. 	While 	our
procedure 	for 	processing unfair 	practice 	allegations 	is 	substantially
different 	from that of 	the NLRB, 	nevertheless 	it 	is 	equally 	true of
both procedures 	that 	the 	charge 	is not proof. 	Rather, 	it merely sets
in motion 	the procedure of an inquiry. 	It 	is 	true 	that 	the 	Board's
Rules 	and Regulations 	require a 	charging party 	to 	allege 	the 	facts
upon which 	the 	charge 	is 	based and 	to bear 	the burden of proving
the 	charge by a preponderance of 	the 	evidence. 	However, 	the Rules
and Regulations 	also permit 	the 	dismissal 	of 	a 	charge prior 	to 	a
formal hearing, 	permit 	the preparation and 	service 	on all parties
of 	a pre-hearing memorandum containing 	a 	summary 	of 	the proceedings 	to
date and 	the 	issues 	to be 	decided at 	the 	formal hearing, 	permit 	the
conduct 	of an 	informal hearing 	in order 	to, 	among other 	things,
clarify 	the 	issues 	raised by 	the charge, 	permit 	amendment of 	the
charge, 	and permit 	particularization by 	the 	charging party or
respondent. 	The 	construction of 	the 	Board's 	Rules 	and Regulations
given by 	the hearing officer 	is 	contrary 	to 	the 	statute 	itself,
which distinguishes between a charge and a complaint 4/.
3 See NLRB v. 	Indiana and Michigan Electric Company, 	318 U.S.
9, 	17-18; 	Television and Radio Broadcasting Studio Employees,
Local 	805 	(Radio 	and Television Division of Triangle 	Publications,
Inc.), 	135 NLRB 	632, 	49 LRRM 1541 	(1962).
4/ The EERA differentiates between unfair practice charges, which
are 	filed by 	the parties, 	and unfair practice complaints, 	which are
issued by the EERB. 	See Gov. 	Code Secs. 	3541.3(i), 	3541.3(j),
3541.5 and 3541.5(a).
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Accordingly, 	we 	reverse 	the 	order 	of 	dismissal 	and remand
the 	case 	to 	the 	General 	Counsel 	for 	a 	hearing .
ORDER
The 	hearing 	officer ' s 	dismissal 	of 	the 	first 	allegation 	of
the 	unfair 	practice 	charge 	filed 	by El 	Rancho Unified 	School
District 	against 	El 	Rancho 	Federation of 	Teachers, 	Local 	3467,
AFT, 	AFL-CIO 	and El 	Rancho 	Education Association, 	CTA/NEA is
reversed. 	The 	unfair 	practice 	charge 	is 	remanded 	to 	the 	General
Counsel 	for 	settlement 	or hearing .
"lJ' en lou H. 	Cossac k, 	Member-
Reginald Alleyne, 	Chairman, 	concurring:
I 	concur 	in 	the 	order 	and 	concur 	in 	the 	decision, 	but 	only up
to 	and 	including 	the 	paragraph on pages 	2 	and 	3 	ending with 	the words
II 	. 	employees 	is 	disruptive . " 	I 	agree with none of 	the remainder
of 	the 	decision, 	which raises 	a 	non-existent 	issue 	going beyond 	the
single 	question of whether 	the 	charging party here 	had 	standing 	to 	file
the 	charge.
Reginald Alleyne, 	Chairman
Raymond J . 	Gonzales, 	Member, 	dissenting:
I 	disagree with my 	colleagues 	that 	the 	hearing 	officer 	improperly
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sustained 	the Association's 	motion 	to 	dismiss.1	' / 	In my view, 	they
totally mischaracterize 	the 	decision 	of 	the hearing 	officer 	on 	the
issue 	of 	standing. 	The hearing officer never 	concluded 	that 	the
District 	"could not have been 	aggrieved" 	by 	the 	alleged 	conduct 	of
the respondents. 	He merely held, 	and I am in accord, 	that on 	the
facts as alleged, 	the 	District has 	failed 	to 	demonstrate 	that 	it 	is
the real party in interest in this case and therefore lacks standing.2/ 2
At 	issue 	is 	the 	language 	found in paragraph 	1 	of 	the District's
unfair 	practice 	charge 	stating 	that 	the 	respondents 	engaged
"...in conduct which 	includes 	threats, 	coercion
and 	intimidation 	of 	employees 	of 	Charging Party
[District] 	while Respondents were 	engaging 	in an
illegal work 	stoppage 	for 	the 	period beginning
9-13-76 	and 	ending 	10-17-76 	thereby 	interfering
with 	employees' 	rights 	guaranteed 	them under 	Sec-
tion 	3543 	of 	the Act 	...."
This 	language, 	on its 	face, 	only speaks 	to 	alleged injury upon the
employees 	of 	the District. 	There 	is 	nothing 	stated 	to 	remotely
suggest 	that 	the 	District 	itself has 	suffered by 	the 	alleged 	conduct
of 	the respondents 	or 	that 	it 	otherwise has 	a direct 	interest 	in the
matter. 	This 	is not 	to 	say 	that 	the District 	could not have been
aggrieved 	in 	some manner 	assuming 	the 	respondents 	did 	so 	engage 	in
improper 	conduct, 	or 	that 	it 	lacks 	any interest in the case. 	However,
I 	think 	it 	ill-advised 	to hypothesize, 	as 	apparently my 	colleagues
2Only 	the El 	Rancho 	Education Association 	filed 	a motion 	to
dismiss 	on 	the 	issue 	of 	standing.
2Klopstock v. 	Superior Court, 	17 Cal. 	2d 13, 	17-19 	(1941);
Parker v. 	Bowron, 	40 Cal. 	2d 344, 	351 	(1953); 	Oakland Municipal Improve-
ment League v. Oakland, 	23 Cal. App. 	3d 165, 	170 (19 72); Friendly
Village Community Assn. 	Inc. 	v. 	Silva & Hill Construction Co., 	31 Cal.
App. 	3d 220, 	224 (1973); 	3 Witkin, 	Cal, Procedure (2d ed. 1971) Pleading,
Sec. 	760, p. 	2379 and Sec. 	814, p. 	2424.
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choose to do, 	as 	to 	the District's 	interest or injury. 	First, 	it
may be 	that 	the 	District has 	not been 	aggrieved 	in any 	fashion, 	and,
as 	a matter of law, 	is 	only claiming 	the right 	to represent 	its
3	employees 	in 	an unfair practice 	proceeding 	on 	the 	charge 	alleged.
Second, 	it may be 	that 	the 	District 	can appropriately 	demonstrate
standing, 	but 	it would be based on reasons 	other 	than 	those 	supposed
by my colleagues. 	For example, 	looking at 	the 	language 	found in Para-
graph " 1 " , 	specifically "thereby interfering with employees' 	rights
guaranteed 	them under 	Section 	3543 	of 	the 	Act...,"4 it 	is 	conceivable
that, 	depending on the facts, 	only the District's 	interest 	in nego-
tiating with 	an 	exclusive 	representative 	chosen by 	an uncoerced
majority 	of 	its 	employees 	may have been 	adversely 	affected. 	Third,
if given the opportunity 	to 	cure its 	original 	charge, 	the District
might 	substitute 	the 	proper 	charging party 	or parties 	rather 	than
make 	a 	showing 	of 	standing.5
Hence, 	aside 	from the 	general purpose behind the 	standing require-
ment, 	to 	avoid litigation 	intended solely 	for harassment, 	fairness
3Indeed, 	in 	its 	Appeal 	of Order 	Granting Motion 	to 	Dismiss 	Unfair
Practice Charge, 	the 	thrust of 	the District's 	argument 	is 	its 	right 	to
intercede, 	for various 	reasons, 	on behalf of the employees 	in pursuing
charges 	involving 	intimidation of 	the 	employees.
4Gov. 	Code 	sec. 	3543 provides 	in pertinent part: 	Public 	school
employees 	shall have 	the right 	to 	form, 	join, 	and participate 	in the
activities 	of 	employee organizations 	of 	their 	own 	choosing 	for 	the 	pur-
pose 	of representation on all matters 	of 	employer-employee 	relations.
Public 	school 	employees 	shall 	also have 	the right 	to 	refuse 	to join or
participate 	in 	the 	activities 	of 	employee 	organizations 	....
5Klopstock, 	supra, 	at p. 	21.
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to 	the 	respondents 	in knowing 	exactly whom and what 	they must 	defend
against 	is 	a prevailing 	consideration. 	The 	charge 	itself 	thus 	assumes
particular 	importance 	since 	it 	sets 	forth 	the basic 	facts 	the 	charging
party must prove by a preponderance of the evidence.6
Despite my views 	on 	the 	standing 	issue, 	I 	do 	think 	the hearing
officer 	erred 	in not 	allowing 	the 	charging 	party 	opportunity 	to 	amend
its 	original 	charge. 	It 	is 	not evident 	in 	the hearing officer's
decision why he 	did not allow leave 	to 	amend, 	although 	it may have
been that at 	the 	time of oral argument on this 	issue, 	June 2, 	1977,
the 	District made 	it 	obvious 	to 	the hearing officer 	that 	it 	could not
cure its 	original 	charge. 	However, 	for me 	to speculate regarding
possible valid grounds 	for 	the hearing officer's 	failure 	to 	grant
leave 	to 	amend would be 	as 	inappropriate as 	the majority's 	speculation
over possible 	allegations 	to 	cure 	the patently 	defective 	pleading 	of
the 	charging party. 	In any event, 	the hearing officer must 	stand by
his 	decision 	and his 	failure 	to 	articulate why no 	leave 	to 	amend was
allowed prevents 	one 	from assuming 	that his 	decision was 	correct 	on
this 	point. 	As 	stated by 	the 	California 	Supreme 	Court 	in Harman v.
City 	and County of 	San Francisco:
Indeed, 	a general 	demurrer 	to 	a complaint 	should not
be 	sustained without 	leave 	to 	amend 	if 	the 	complaint
raises 	the 	reasonable possibility 	that 	its 	defects 	can
be 	cured by 	amendment. 	Thus 	the 	court 	in Lemoge 	Electric
v. County of San Mateo 	(1956) 	46 Cal. 	2d 659, 	664,
(297 P. 	2d 638), 	explains: 	In the furtherance of justice
great 	liberality 	should be 	exercised 	in 	permitting 	a
plaintiff 	to amend his 	complaint, 	and it ordinarily
constitutes an abuse 	of discretion 	to 	sustain a 	demurrer
without 	leave 	to 	amend 	if 	there 	is 	a reasonable possibility
that 	the 	defect 	can be 	cured by amendment. 7
6 Cal. Admin. Code tit. 	8, sec. 	35027.
'Harman v. 	City and County of San Francisco, 	7 Cal. 	3d 150, 	157
(1972).
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It 	is 	conceivable 	that 	given 	the 	discussion of my colleagues, 	the
District 	may be 	able 	to 	establish a 	prima 	facie 	case, 	by 	amending
its 	original 	charge 	or, 	at 	the very 	least, 	the proper 	charging party
might 	be 	substituted 	for 	the 	District.
Concerning 	that 	portion 	of 	Member 	Cossack's 	opinion 	regarding
the 	hearing 	officer 	incorrectly 	construing 	the 	procedures 	adopted by
the 	Board 	for 	the 	processing 	of 	unfair 	practice 	charges, 	I 	agree
with 	Chairman Alleyne 	that 	her 	discussion 	is 	unwarranted 	as 	going
beyond 	the 	scope 	of 	the 	standing 	issue.
/RaymJ..Hd 	J. Gonzales 'j Member
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STATE 	OF 	CALIFORNIA
DECISION 	OF THE 	EDUCATIONAL
EMPLOYMENT RELATIONS 	BOARD
ORDER
EL 	RANCHO UNIFIED 	SCHOOL DISTRICT,
Employer,
and
EL 	RANCHO 	FEDERATION 	OF TEACHERS,
LOCAL 3467, AFofT, AFL-CIO; 	and
EL 	RANCHO EDUCATION ASSOCIATION,
CTA/NEA,
Respondents.
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) 	Case No. 	LA-CO-18
EERB 	Decision 	No. 	45
December 	30, 	1977
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The 	Educational 	Employment 	Relations 	Board 	directs 	that:
The hearing 	officer's 	dismissal 	of 	the 	first 	allegation
of 	the unfair 	practice 	charge 	filed by El 	Rancho 	Unified 	School
District 	against El 	Rancho Federation of Teachers, 	Local 	3467,
AFT, 	AFL-CIO and El 	Rancho Education Association, 	CTA/NEA is
reversed. 	The unfair practice 	charge 	is 	remanded 	to 	the 	General
Counsel 	for 	settlement 	or hearing.
Educational 	Employment 	Relations 	Board
Stephen Barber, 	Executive Assistant
William P. 	Smith, 	General 	Counsel