Redwoods Community College District (PERB 0650E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	BEATRICE
CHAPTER NO. 	509,
Charging 	Party,
v.
REDWOODS 	COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-979
PERB 	Decision 	No. 	650
December 28, 	1987
CLASSIFIED 	EMPLOYEES 	COUNCIL,
Real 	Party 	in 	Interest.
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Appearances; 	Madalyn J. 	Frazzini, 	Attorney, 	for California
School 	Employees 	Association and 	its 	Beatrice 	Chapter 	No. 	509;
Kronick, 	Moskovitz, 	Tiedemann & Girard by James E. 	Mesnier 	for
Redwoods 	Community 	College 	District.
Before Craib, 	Shank and Cordoba, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before 	the 	Public Employment
Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed by 	the
Redwoods 	Community College 	District 	(District) 	to 	the 	attached
proposed 	decision of 	a PERB 	administrative 	law 	judge 	(ALJ).
The 	ALJ 	found 	that 	the 	Classified 	Employees 	Council 	(CEC) 	was
an 	employee 	organization 	and 	that 	the 	District 	unlawfully
interfered with, 	supported 	and dominated 	the 	CEC.
We have 	reviewed 	the 	entire 	record 	in 	this 	case, 	including
the 	transcript, 	the proposed decision, 	the 	exceptions 	thereto
and 	the 	response 	to 	the 	exceptions 	and, 	finding 	the ALJ's
findings 	of 	fact 	and 	conclusions 	of 	law 	to be 	free 	of
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prejudicial 	error, 	we adopt 	them as 	the 	Decision of 	the 	Board
itself. 	However, 	we will 	take 	the opportunity 	to provide 	two
cautionary notes, 	with 	the 	intention of better 	defining the
parameters 	of 	this 	Decision.
First, 	we 	find 	it prudent 	to repeat 	a passage 	from a
previous 	Board decision, 	Oak 	Grove 	School 	District 	(1986) 	PERB
Decision No. 	582 	(a 	similar 	case wherein 	the Board 	concluded
that a 	"teachers 	forum" was an employee organization):
This 	is 	not 	to say 	that 	all 	faculty councils
or 	groups 	are per se unlawful, 	or 	that
individual 	employees 	cannot 	speak 	to 	their
employers 	about 	working 	conditions,
including 	those 	within 	the 	scope 	of
representation. 	But when 	the 	District 	sets
up an 	organized 	group of 	teachers 	[or 	other
represented 	employees] 	to meet 	at 	regular
intervals 	on school 	time 	to discuss 	topics
of mutual 	interest, 	it permits discussion of
negotiable 	subjects 	at 	its 	own risk. 	(Id.	.. ,
at p. 	18.)
Second, 	we 	will 	comment briefly on 	the ALJ's 	reliance 	upon
NLRB v. 	Cabot Carbon 	(1959) 	360 U.S. 	203 	[44 LRRM 2204], 	where
the 	Supreme 	Court held 	that 	the 	"dealing with" 	language 	of
section 	2(5) 	of 	the 	National 	Labor 	Relations 	Act 	(NLRA)
(section 	2(5) 	defines 	a 	"labor 	organization") 	includes 	employee
groups 	that do 	not 	engage 	in actual 	negotiations 	with 	the
employer. 	The ALJ 	similarly 	found 	that 	the 	"relations 	with 	the
employer" 	language of section 3540.l(d) 	of 	the 	Educational
Employment 	Relations 	Act,1 (EERA) 	is broader 	than 	language 	in
the 	EERA 	defining 	the 	scope 	of 	representation.
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq.
2

As 	the majority noted 	in Oak 	Grove, 	supra, 	there has been
some 	narrowing 	of 	the 	interpretation 	of 	the 	"dealing with"
language 	found 	in 	the NLRA. 	In a departure 	from 	the 	ruling 	in
Cabot 	Carbon, 	supra, 	the National 	Labor 	Relations 	Board 	(NLRB)
has 	found 	that 	employee 	groups 	that 	engage 	in 	a mere 	discussion
with management, 	rather 	than making recommendations 	to
management, 	are not 	"dealing with" 	the 	employer. 	Fiber
Materials, 	Inc. 	(1976) 	228 NLRB No. 	112. 	Furthermore,
committees 	to which 	management has 	delegated 	actual
decision-making 	authority have 	similarly been 	viewed 	as
permissible. 	Sparks Nugget 	(1977) 	230 NLRB No. 	43; 	Mercy
Memorial Hospital 	(1977) 	231 	NLRB No. 	182. 	We 	find these more
recent 	NLRB 	cases 	more 	instructive 	than 	Cabot 	Carbon 	and 	adopt
the 	ALJ's 	reasoning 	within 	the 	confines 	of 	the 	principles
enunciated 	in those cases. 	In this 	case, 	CEC's 	activities went
beyond 	discussions, 	but 	fell 	short 	of 	constituting delegated
managerial 	decision-making 	authority as 	contemplated 	in 	Sparks
Nugget, supra.
In addition, 	the 	employer's 	delegation of managerial
functions 	and 	the 	"nonrepresentative" 	status 	of 	the
organization was 	relied 	on by 	the 	NLRB 	in General 	Foods
Corporation 	(1977) 	231 NLRB No. 	122. 	There, 	the NLRB found
that 	the 	work 	crews 	(which were 	charged 	with 	the 	responsibility
to 	interview 	job 	applicants, 	inspect 	the plant 	and report
safety 	infractions 	and, 	within limits, 	set 	their 	own 	starting
and 	quitting 	times) 	were 	not 	employee 	organizations 	where 	the
crews 	were 	given 	substantial 	managerial 	powers 	and where 	the
3

crew 	members 	spoke 	as 	individuals, 	not 	as 	representatives 	of
the 	workers. 	In 	contrast 	to 	the 	facts 	in General 	Foods,
however, 	the 	CEC 	was 	designed 	as 	a 	representative 	body with 	a
primary 	purpose 	of 	making 	recommendations 	to management. 	The
CEC, 	then, 	would 	clearly 	remain within 	the 	NLRA's 	definition 	of
a 	labor 	organization. 	See 	also, 	Ferguson-Lander 	Box 	(1965) 	151
NLRB No. 	158; 	Geauga 	Plastics 	Co. 	(1976) 	166 NLRB No. 	69; 	Ace
Manufacturing Co. 	(1978) 	235 NLRB No. 	137.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3541.5(c), 	it 	is hereby ordered 	that 	the 	Redwoods 	Community
College 	District 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Dominating 	or 	interfering 	with 	the 	formation 	or
administration 	of 	any 	employee 	organization, 	or 	contributing
financial 	or 	other 	support 	to 	any 	employee 	organization, 	or
engaging 	in 	any 	conduct 	which 	tends 	to 	encourage 	employees 	to
join 	any 	employee 	organization 	in 	preference 	to 	another.
(2) 	Interfering 	with 	the 	exercise 	of 	employee 	rights
to 	form, 	join 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of 	employer-employee 	relations.
(3) 	Interfering 	with 	the 	right 	of 	the 	California
School 	Employees 	Association 	and 	its 	Beatrice 	Chapter 	No. 	509
to 	represent 	bargaining 	unit 	employees 	in 	their 	employment
relations 	with 	the 	Redwoods 	Community 	College 	District.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
(1) 	Disestablish 	the 	Classified 	Employees 	Council 	as
the 	representative 	of 	employees 	in 	the bargaining 	unit
represented 	on 	an 	exclusive basis by 	the 	California 	School
Employees 	Association and 	its 	Beatrice 	Chapter 	No. 	509 	on all
employment-related 	matters.
(2) 	Within 	thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at
all 	school 	sites 	or 	other 	work 	locations 	where 	notices 	to
employees 	are 	customarily placed, 	copies 	of 	the Notice 	attached
hereto 	as 	an Appendix. 	The Notice 	must be 	signed by an
authorized 	agent 	of 	the 	District 	indicating 	that 	the 	District
will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall
be 	maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken 	to 	insure 	that 	the
Notice 	is 	not 	reduced 	in size, 	altered, 	defaced or 	covered by
any 	other 	material.
(3) 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall be made 	to 	the 	San 	Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance 	with her 	instructions.
Members 	Shank 	and 	Cordoba 	joined 	in 	this 	Decision.
55

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	SF-CE-979, 	in
which 	all 	parties had 	the 	right 	to participate, 	it has been
found 	that 	the 	District 	violated 	Government 	Code 	sections
3543.5(d), 	(b) 	and 	(a).
As 	a 	result 	of 	this 	conduct 	we have been ordered 	to post
this 	Notice, 	and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST 	FROM:
(1) 	Dominating or 	interfering with 	the 	formation or
administration of 	any employee 	organization, 	or 	contributing
financial 	or 	other 	support 	to any employee 	organization, 	or
engaging 	in 	any 	conduct 	which 	tends 	to 	encourage 	employees 	to
join 	any 	employee 	organization 	in preference 	to 	another.
(2) 	Interfering with 	the 	exercise of 	employee 	rights
to 	form, 	join and participate 	in the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation on all 	matters 	of 	employer-employee 	relations.
(3) 	Interfering with 	the 	right of 	the 	California
School 	Employees 	Association and 	its 	Beatrice Chapter No. 	509
to 	represent bargaining 	unit 	employees 	in 	their 	employment
relations 	with 	the 	Redwoods 	Community 	College 	District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
(1) 	Disestablish 	the 	Classified 	Employees 	Council 	as
the 	representative 	of 	employees 	in 	the bargaining unit
represented 	on 	an 	exclusive basis 	by 	the 	California 	School
Employees Association 	and 	its 	Beatrice 	Chapter 	No. 	509 	on all
employment-related 	matters.
Dated: 	Redwoods 	Community 	College
District
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION. 	AND 	ITS BEATRICE
CHAPTER No. 	509,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT.
Respondent.
Case NO. 	SF-CE-979
PROPOSED 	DECISION
(7/11/86)
CLASSIFIED EMPLOYEES 	COUNCIL.
Real 	Party 	in 	Interest.
Appearances: 	Madalyn J. 	Frazzini. 	Attorney for California
School Employees Association and 	its Beatrice Chapter No. 	509;
Kronick. 	Moskowitz. 	Tiedemann and Girard, 	by James E. 	Mesnier
for Redwoods Community College District; 	Neil Kirk. 	President,
for 	Classified 	Employees 	Council.
Before: 	Fred D'Orazio. 	Chief Administrative Law Judge.
PROCEDURAL 	HISTORY
On December 	18. 	1984, 	the California School Employees
Association and 	its Beatrice 	Chapter No. 	509 	(hereafter 	CSEA or
charging party) 	filed 	this 	unfair 	practice 	charge 	against 	the
Redwoods 	Community College District 	(hereafter 	District 	or
respondent). 	The charge, 	as amended, 	alleged that the District
had 	formed, 	supported and 	dominated 	a 	rival 	employee
organization, 	the 	Classified 	Employees 	Council 	(hereafter 	CEC
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.

or Council). l in violation of sections 3543.5(d), 	(a) 	and
(b) 	of 	the Educational 	Employment Relations Act 	(hereafter EERA
or Act).2 The Council was 	joined as 	a 	party on July 23.
1985. 	(California Administrative Code, 	title. 	8. 	part III.
section 	32164)
The 	PERB General 	Counsel 	issued 	a 	complaint 	on April 	4.
1985. 	incorporating the allegations 	in the 	charge. 	On May 6,
1985. 	the District filed 	its answer, 	admitting certain facts,
denying 	the 	allegations 	of 	unlawful 	conduct 	and 	advancing
affirmative defenses. 	Admissions, 	denials 	and defenses will 	be
considered 	below where 	relevant. 	A 	settlement 	conference
failed 	to 	resolve 	the dispute.
A 	prehearing 	conference was 	conducted 	in 	San Francisco 	on
July 	17, 	1985. 	Six days 	of 	formal 	hearing were 	conducted 	in
Eureka, 	California, 	between August 	19, 	1985 and November 7.
1985. 	The 	posthearing 	briefing 	schedule was 	completed 	on
March 24. 	1986 	and 	the 	case was 	submitted.
1CSEA 	also 	charged 	the District with 	refusing 	to
negotiate 	several 	personnel 	actions 	which 	allegedly 	impacted 	on
bargaining unit 	employees. 	All 	of 	these 	allegations 	were
settled 	during 	the 	course 	of 	the 	formal 	hearing.
2The EERA is 	codified 	at Government Code section 	3540, 	et
seg., 	and 	is 	administered 	by the Public Employment Relations
Board 	(hereafter 	PERB or Board). 	Unless 	otherwise 	indicated,
all 	statutory 	references 	in this 	decision are 	to 	the 	Government
Code.
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FINDINGS 	OF FACT
I. 	Establishment 	of 	the Classified Employees 	Council:
During the summer of 	1983, 	Dr. 	Donald Weichert. 	College of
the Redwood's 	president 	and 	superintendent, 	concluded 	that 	a
need 	existed 	for 	improved 	communications 	between 	the 	College 	of
the Redwoods 	and 	"all 	parties" 	in 	the District.3 To 	this
end. 	on August 	3. 	1983. 	he proposed to the College of 	the
Redwoods 	Executive 	Committee 	the 	creation 	of 	the 	Classified
Employees 	Council
To 	provide 	a 	representative 	body 	to 	deal
with 	the 	non-collective 	bargaining 	issues
that 	affect 	or 	are of 	concern or 	of 	interest
to 	the classified 	employees. 	It 	is designed
to 	provide 	an avenue 	of 	representation for
the 	classified 	employee.
The 	CEC was 	to 	be 	comprised 	of 	all 	classified 	employees,
including 	supervisors 	and 	managerial 	employees. 	The Executive
Committee 	agreed with Dr. 	Weichert's 	proposal.
During August 	1983. 	CSEA became 	aware 	of 	the District's
plan regarding the 	establishment 	of 	the CEC. 	Dave Young. 	CSEA
3 Dr. 	Weichert's 	conclusion was 	based 	in 	large 	part 	on two
Communication Task Force 	reports 	and 	related 	studies 	which
suggested 	that 	there was 	poor 	communications 	and 	low morale
among classified 	employees 	in the District. 	One 	of 	the 	reasons
cited 	for 	low morale was 	"the 	establishment 	of 	collective
bargaining/negotiating 	teams, 	etc. 	which changed 	the 	'family'
structure to more of 	a 	'labor-management' 	situation."
4 The Executive Committee 	is 	the president's 	cabinet. 	It
includes 	the president, 	vice-president, 	dean of 	business
services, 	dean of administrative services, 	dean of students,
and 	dean 	of 	instruction.
33

field 	representative, 	informed 	the District 	in a 	negotiating
session 	that 	the union was 	not 	in favor 	of 	the 	idea, 	although
he 	said 	it was 	premature 	to object 	in any concrete 	terms.
Young reserved 	the union's 	right 	to 	raise 	future 	objections 	if
CEC 	infringed 	upon CSEA 	rights 	as 	the 	exclusive 	representative
of 	classified 	employees. 	Young 	said 	CSEA would 	closely watch
the evolution of 	the CEC.
By August 	1984, 	one year 	later. 	CSEA officials were
convinced 	that 	their 	fears 	had 	become 	reality. 	Young wrote 	to
Thomas Hannah, 	dean of 	administrative 	services:
Our 	expectations 	in 	this 	matter 	have 	been 	realized.
The 	Classified Employees 	Council 	is 	infringing 	on
CSEA's 	exclusive 	prerogatives 	on 	collective
bargaining. 	Specifically, 	the 	council 	had 	a 	regular
agenda 	slot at meetings 	of 	the Board of Trustees, 	and
has 	a 	representative 	on Administrative 	Selection
Committees, 	and 	has District's 	requested 	input 	in the
budgetary 	process. 	Individually 	and 	collectively,
these 	functions 	bear 	the 	form, 	and 	that 	developing
substance, 	of 	an employee 	organization under 	the
meaning of 	the Rodda Act.
Hannah 	disagreed 	in writing with Young 	and 	asked 	for
further 	information 	in 	support 	of 	the 	assertion 	that 	the 	CEC
had 	infringed 	on CSEA's 	territory 	as 	the 	exclusive
representative. 	Young 	responded 	in 	somewhat 	colorful 	language
which accurately 	frames 	the 	issues 	presented 	here.
You correctly state that, 	to date, 	the CEC
has 	generally confined 	its 	activities 	to
matters 	separate 	and 	apart 	from CSEA's
prerogatives 	under 	collective 	bargaining.
The CEC has 	not 	attempted 	to 	bargain 	in 	the
strict 	sense of 	the word. 	Were 	it 	to do so.
the 	violation we 	claim would 	be 	clear 	beyond
dispute. 	Our 	concern 	is 	directed more 	at
the 	developing 	relationship 	between 	the
4

District 	and 	the CEC, 	which bears 	the 	strong
potential 	that 	the CEC could, 	at 	some
fortuitous 	time, 	unmask 	itself 	and 	assume
the 	full 	mantle 	of 	an employee
organization. 	CSEA is 	a 	de 	jure 	employee
organization under 	the Rodda Act. 	The 	CEC
is, 	in our opinion, 	a de facto
organization. 	Put differently, 	if 	it looks,
acts 	and 	smells 	like a 	skunk, 	you probably
don't want 	it 	to 	live under 	your 	house 	no
matter 	how strongly 	it 	professes 	to 	be 	a
kitty cat. 	The 	form 	is 	often as 	important
as 	the 	substance.
The 	fact 	that 	the CEC 	is 	a 	creation of 	the
District 	lends 	credence 	to 	our 	concern. 	If
a 	group 	of 	employees 	had 	independently
created 	the CEC for 	their 	own purposes, 	and
if 	the District 	had 	maintained 	a 	clear 	and
defined 	distance 	from the 	organization, 	in
effect denying to 	it 	the 	apparent mantle 	of
employer 	approval 	and 	authority, 	our 	concern
would 	be greatly diminished. 	However, 	that
is not 	the case. 	The CEC 	is 	a direct
creation of 	the District, 	and 	it 	is 	formally
recognized 	by the Board 	of 	Trustees. 	Take 	a
walk 	through the 	CEC's 	newly adopted
Constitution, 	and you will 	find 	several
passages which 	seem to 	indicate 	a 	purpose
and 	scope 	of 	activity far 	beyond 	the 	bland
vanilla you 	profess 	to 	taste.
Meanwhile, 	the CEC had 	already been set up. 	After
communicating 	during August 	with 	the 	Board 	of 	Trustees 	about
the proposed Council. 	Dr. 	Weichert 	sent a memo 	to all
classified employees 	on September 	12. 	1983. 	In the memo
employees 	were 	informed 	that 	the 	Board 	of 	Trustees 	agreed with
the 	stated 	objectives 	of 	CEC 	(i.e. 	improved 	communications) 	and
asked 	that 	steps 	be 	taken to 	inaugurate 	it. 	Attached 	to 	the
memo 	was 	Dr. 	Weichert's 	detailed 	proposal 	for 	implementing 	the
Council, 	including the 	intended 	purpose 	of 	the CEC, 	and 	the
UT
	5

quite 	elaborate 	"organizational 	process" 	by which 	the 	CEC would
be 	implemented. 	In general 	terms 	it covered: 	(1) 	areas of
representation; 	(2) 	nominations of CEC members; 	(3) 	election of
members; 	(4) 	procedure to determine 	length of member's 	terms;
(5) 	election of president and secretary; 	(6) 	frequency of
meetings; 	(7) 	role of CEC president; 	(8) 	structure of quarterly
classified 	employee meetings; 	(9) 	year-end 	report 	of 	CEC to 	the
Board of Trustees/president; 	(10) 	role of 	the College of the
Redwoods 	president on CEC matters; 	and 	(11) 	role of 	the CEC
president 	on 	the College 	of 	the Redwoods 	Coordinating Council.
In an annual 	orientation meeting 	of 	all 	classified 	staff 	on
September 14. 	1983. 	Dr. Weichert, 	as chairperson of the
meeting, 	presented 	the 	idea 	to 	create CEC. 	Minutes 	of 	that
meeting 	indicate 	that 	an 	open 	discussion 	occurred.
Specifically, 	Dr. 	Weichert 	stated 	that 	he 	intended 	that 	the
CEC 	include 	all 	classified 	employees, 	including managerial 	and
supervisory. 	In response 	to 	a 	question about whether 	the
president 	of 	CEC would 	have 	a 	seat 	on 	the 	College 	of 	the
Redwoods Board of 	Trustees. 	Dr. 	Weichert responded that he
would 	take 	the 	matter 	to 	the Board 	for 	decision. 	Other 	areas
of 	discussion 	included 	release 	and 	travel 	time 	for 	CEC
representatives.
Regarding 	expressed 	concerns 	that 	the 	existence 	of 	CEC
might 	cause 	conflict with CSEA, 	the 	exclusive 	representative 	of
classified 	employees, 	Dr. 	Weichert 	explained 	that 	the CEC would
6

have 	the 	same 	relationship 	to 	CSEA as 	the Academic 	Senate 	had
to 	the College of 	the Redwoods Faculty organization 	(CRFO). 	the
exclusive 	representative 	for 	certificated 	employees; 	that 	is.
CEC would 	not 	deal with negotiable 	items, 	and 	if 	controversy
existed 	between 	the 	two 	groups 	they 	should 	meet 	to 	resolve
their 	problems. 	In line with Dr. 	Weichert's 	comments,
Neil 	Kirk, 	president 	of 	CEC, 	informed 	employees 	present 	that
CEC's 	doors were 	always 	open to 	discuss 	matters 	of 	controversy
with 	CSEA.
At 	another 	point 	in the meeting, 	the District was 	broken up
into 	seven 	areas 	for 	CEC 	representation.5 Each 	area 	would
have a 	representative. 	Once again, 	this 	action was 	taken
pursuant to Dr. 	Weichert's proposal.
The 	procedure 	to 	choose 	the 	seven CEC 	representative
members was 	discussed, 	again pursuant 	to Dr. 	Weichert's
suggestion, 	and 	it was 	agreed 	that 	the meeting 	be 	opened 	for
volunteers 	and 	nominees. 	Some 	names were 	received 	during 	the
meeting. 	Provision was made 	for 	other 	names 	to 	be 	submitted 	to
^These are: 	(1) 	administrative services, 	including the
business 	office, 	personnel office, 	and president's office; 	(2)
student services, 	including admissions, 	counseling, 	financial
aid, 	veterans, 	and handicapped student services; 	(3)
instructional 	support 	services, 	including 	instructional 	media
services, 	library, 	learning assistance center, 	community
education, 	data processing, 	central duplicating, 	and child
development center; 	(4) 	academic 	services, 	including academic
divisions, 	office of 	instruction, 	and program development; 	(5)
foundation, 	including dorms, 	food service, 	and book store; 	(6)
operational 	services, 	including maintenance/custodial 	and
security; 	(7) 	centers, 	including branches 	and education centers
77

Nancy Hauser. 	Dr. 	Weichert's 	secretary, 	after 	the meeting. 	By
2:00 p.m. 	the next day. 	September 	15. 	nominations 	and
volunteers 	had 	been 	received 	for 	all 	areas 	of 	representation.
At 	the 	end 	of 	the meeting Dr. 	Weichert 	asked 	the 	classified
employees 	in attendance 	if 	they concurred 	in the 	proposal 	to
establish 	the CEC. 	The 	employees 	in attendance 	agreed.
On September 	16, 	1983, 	Dr. 	Weichert circulated 	the minutes
of 	the 	September 	14 	meeting 	to 	all 	classified 	staff. 	He
reiterated 	the 	requirement 	that 	additional 	names 	of 	volunteers
or 	nominees 	for 	CEC membership 	be 	submitted 	to Nancy Hauser.
He 	also 	informed 	employees 	that 	the 	personnel 	office 	would
conduct 	the 	election, 	and 	ballots would 	be 	sent 	out 	by the 	end
of 	September.
On September 	30, 	ballots 	were 	prepared 	by the District 	and
circulated 	to 	all 	employees, 	including 	those 	employees 	at 	the
various 	"satellite 	branches." 	The 	election was 	by 	secret
ballot. 	All 	costs were 	absorbed 	by the District. 	Ballots were
returned 	to Nancy Hauser, 	who 	placed 	them 	in a 	central 	spot.
Thomas 	Hannah 	supervised 	the 	ballot 	count 	which was 	carried 	out
by 	the 	support 	staff 	of 	the District's 	managerial 	employees.
The 	successful 	candidates 	and 	their 	respective 	areas 	of
representation are 	as 	follows:
(1) 	administrative 	services- 	Cathy Dellabalma
(2) 	instructional 	support 	services- 	Sue Bailey
(3) 	foundation - Bill 	Connors
(4) 	education centers 	- 	Claudine Gans-Rugeberegt
(5) 	student 	services 	- Neil Kirk
(6) 	academic 	services 	- 	Frank Martinez
(7) 	operational 	services 	- Paul 	Jadro
8

Dellabalma 	is 	the 	personnel 	officer 	(a 	managerial 	position)
in 	charge 	of 	classified 	employees. 	Bailey was 	a 	temporary
management 	employee 	at 	the 	time 	of 	the 	election, 	but 	she 	gained
permanent 	status 	as 	a 	supervisor 	on July 	1, 	1984. 	Connors was
a 	managerial 	employee 	at 	the 	time 	of 	the 	election. 	Others
elected 	to 	the 	Council 	were 	bargaining unit 	employees. 	Newly
elected 	Council members 	dined 	as 	guests 	of 	the District 	at 	a
"meet your 	trustees" 	buffet dinner 	on October 	17, 	1983.
Dr. 	Weichert 	issued 	a 	personal 	invitation to 	each member 	to
attend 	the Board 	of 	Trustees 	meeting 	later 	that 	evening.
The 	first 	regular meeting of 	the Council, 	held 	on
October 	18, 	1983. 	was attended by Dr. 	Weichert, 	Nancy Hauser,
and 	members 	of 	the Council. 	Hauser 	prepared 	the minutes.
Dr. 	Weichert 	again reiterated 	his 	ideas 	about 	the 	role 	CEC
would 	play 	in 	increasing morale 	on 	campus. 	The 	meeting
included 	a 	discussion about 	potential 	CEC-CSEA 	conflicts. 	The
minutes 	indicate 	that 	participants 	agreed 	that 	CEC would
function as 	a 	"social 	organization", 	and 	collective 	bargaining
rights 	left 	to 	CSEA.
The 	election 	of 	CEC 	officers 	was 	held 	during 	this 	initial
meeting. 	Kirk was 	elected 	president. 	Gans-Rugebregt was
elected 	vice-president, 	and 	Bailey was 	elected
secretary-treasurer. 	Also, 	the terms 	of 	the Council members
were determined 	by drawing 	lots, 	and 	the 	frequency of 	CEC
9
9

meetings was established.555
Three 	other 	significant 	items 	were 	discussed 	at 	the
meeting. 	The 	first 	involved 	information 	showing 	the 	name 	and
the 	telephone 	number 	of 	the CEC representative 	in each area 	of
representation, 	as well 	as 	the 	names 	of 	employees 	in these
respective areas. 	It was 	agreed 	that Cathy Dellabalma, 	the
personnel 	officer, 	would 	prepare 	and 	distribute 	this
organizational 	list. 	This was 	accomplished 	by October 	28.
1983, 	the date 	of 	the 	second CEC meeting. 	The 	second
significant 	issue 	discussed 	in 	the 	October 	18 	meeting 	involved
Dr. 	Weichert's 	agreement 	that a 	reasonable amount 	of 	release
time 	be 	permitted 	for 	CEC members 	to 	conduct CEC activities.
The 	third 	significant 	issue 	involved 	Dr. 	Weichert's 	suggestion
that 	the 	CEC 	place 	a 	representative 	on 	the 	various 	"governance
organizations" 	on campus. 	(These 	organizations 	and 	their
respective 	roles 	are
5The terms of office were as follows: 	Dellabalma, 	Gans-
Rugebregt. 	Kirk and Martinez 	drew two-year 	terms. 	Bailey,
Connors 	and 	Jadro 	drew one-year 	terms. 	Except 	for
Gans-Rugebregt, 	who 	resigned 	in mid-year, 	these employees
served 	on 	the 	CEC 	for 	the 	1983-84 	school 	year.
The 	following 	employees were 	elected 	to 	the 	CEC 	for 	the
1984-85 	school 	year. 	Pat Lindley 	(instructional 	support
services); 	Lila Reynolds 	(food service); 	Steve McCollum
(educational 	center. 	Del Norte); 	Barbara Organ 	(educational
center, 	Mendocino); 	Jadro was re-elected to represent
operational 	services. 	The 	election procedure 	for 	the 	1984-85
school year was 	the 	same as 	that 	for 	1983-84. 	Of 	those who
served 	on 	the 	CEC 	for 	1984-95. 	only Dellabalma 	and 	Reynolds
were 	management 	employees.
10

more 	fully discussed 	below.) 	Potentially, 	this 	could 	include
such organizations 	as 	the 	administrative 	staff, 	the Board 	of
Trustees meetings, 	program development, 	hiring review boards,
etc. 	However. 	Dr. 	Weichert's 	recommendation during the meeting
made 	specific 	reference 	only 	to 	the 	administrative 	staff
meetings 	and 	the Board 	of 	Trustees 	meetings.
II. 	THE CEC CONSTITUTION:
A 	lengthy document, 	the 	CEC 	constitution was 	prepared 	by
members 	of 	the 	Council 	and 	ratified 	at 	the 	general 	orientation
meeting 	of 	all 	classified 	employees 	on September 	14, 	1984, 	one
year 	after Dr. 	Weichert 	first 	proposed 	establishment 	of 	the
Council 	to 	the 	staff. 	The 	preamble 	states 	that 	the mission of
the 	CEC 	is 	to 	"provide 	for 	greater 	participation of 	classified
employees 	in 	the 	governance 	and 	policy 	setting 	network 	of 	the
college." 	Article 	II. 	section 1, 	states 	the primary purpose of
the Council.
The 	primary 	purpose 	of 	the 	Classified
Employees' 	Council 	is 	to provide the
classified 	staff 	of 	the College 	of 	the
Redwoods 	with 	a 	representative 	body to 	act
in 	its 	behalf 	in determining 	the 	need 	for,
and 	in the 	formation of 	policies 	in all
matters 	affecting 	the welfare 	of 	the 	college
and 	the 	classified 	employees.
Some 	"subsidiary aims" 	of 	the 	council were 	outlined 	in
Article 	II. 	section 2:
A. 	To 	provide 	the 	president 	of 	the 	college with
a 	representative 	classified 	employees 	body
that 	can 	assist 	the 	president 	in matters
affecting 	the welfare 	of 	the 	college.
11

B. 	To 	provide 	the 	administration 	of 	the 	college
with a 	democratic 	means 	of 	ascertaining 	the
problems, 	convictions, 	and suggestions of
the 	classified 	staff.
C. 	To 	promote 	communication and 	mutual
understanding 	among 	the 	classified 	staff,
administrators. 	Board of Trustees, 	the
Faculty, 	and 	the Community.
D. 	To 	provide 	the 	administration and 	staff 	of
College 	of 	the Redwoods 	a means 	of
acknowledging 	individual 	classified
employees' 	outstanding accomplishments.
E. 	It 	is not now. 	nor 	shall 	it ever 	be. 	the
intent 	of 	the 	Classified Employees 	Council
to 	participate 	in 	collective 	bargaining 	nor
to 	represent 	employees 	during 	normal
grievance procedures. 	Therefore, 	these
activities 	are 	considered 	to 	be 	outside 	the
scope of 	the Council.
The 	CEC 	Constitution 	and 	By-Laws 	were 	patterned 	after 	those
of 	the Academic 	Senate 	and 	CSEA. 	Copies 	of 	these 	documents
were 	provided 	to 	the 	CEC 	by Dellabalma.
In addition to 	those provisions 	stated above, 	the
Constitution describes 	a 	network 	of 	connections 	between CEC 	and
the 	College 	of 	the Redwoods 	administration which 	suggests 	a
close working 	relationship 	between 	the 	two 	entities. 	For
example, 	the Constitution empowers 	the CEC 	to 	present 	its views
to 	the Board 	of 	Trustees 	and 	to 	the president 	of 	the college.
It 	provides 	that 	the District 	receive 	copies 	of 	minutes 	and 	of
agendas 	to CEC meetings. 	It 	says 	that 	recommendations 	and
decisions 	by 	the 	Council 	shall 	be 	included 	in 	the CEC minutes,
and. 	if 	approved 	by the Board 	of 	Trustees 	and 	the 	college
president 	pursuant 	to 	an 	elaborate 	procedure 	for 	CEC
12

presentation and 	District 	response, 	the 	recommendation 	could
become a 	College policy. 	The Constitution also 	provides 	that a
CEC 	representative will 	sit 	on 	certain 	college 	governance
committees, 	and 	that 	the 	college 	president 	can be 	invited 	to
the CEC meetings 	as 	a 	"consultant 	or 	adviser." 	Lastly, 	and
most 	significantly, 	the Constitution 	provides 	that 	the
Constitution 	and 	amendments 	thereto 	must 	be 	approved 	by 	the
majority of 	the 	electorate 	and 	the Board 	of 	Trustees.
III. 	ASSISTANCE TO CEC:
1. 	Financial Assistance.
At 	a CEC meeting on November 	4, 	1983, 	funding for 	the
Council was 	discussed. 	Dr. 	Weichert 	suggested 	that money from
a 	foundation maintained 	by 	the District 	be 	given directly 	to
CEC. 	Since 	CEC had 	no 	dues 	structure 	and 	thus 	no 	treasury.
Kirk 	accepted 	the 	suggestion 	and 	an 	arrangement 	was 	established
whereby Kirk 	could 	draw on a 	$500 	"front" 	money 	fund 	as
needed.6 Since 	the 	stated 	purpose 	of 	CEC was 	social 	in
nature. 	Kirk used 	the money to 	pay 	in advance 	the 	expenses 	for
CEC-sponsored 	social 	functions. 	Profit was 	usually made 	at
these functions 	(e.g. 	by selling tee-shirts) 	and used 	to 	repay
the 	foundation. 	Since 	repayment was 	always made, 	the $500 	seed
money never 	needed 	to 	be 	renewed.
6The 	record 	is 	unclear 	about 	the 	source 	of 	this 	money.
However, 	it 	appears 	that 	the 	money did 	not 	come 	from general
funds marked 	for 	educational 	purposes.
13

This 	practice 	still 	continues.
2. 	Release time
CEC 	representatives 	were 	granted 	a 	reasonable 	amount 	of
release 	time 	to 	engage 	in social 	as 	well 	as 	representational
(more 	fully described 	below) 	activities. 	Social 	activities 	for
which CEC members were 	given release 	time 	included, 	for
example, 	CEC 	sponsored 	events 	such as 	the 	"super 	stars
competition," 	softball game, 	golf 	tournament, 	and barbecue.
CEC members 	were 	also 	granted 	release 	time 	to 	select 	a
"classified 	employee 	of 	the year," 	a 	popularity 	contest where
the 	selected 	employee 	received 	a 	plaque 	at 	an awards 	dinner.
The District 	paid 	for 	the 	dinner.
In representational 	or 	business 	matters. 	Kirk received
about 	three 	or 	four 	hours 	per 	month of 	release 	time. 	He 	had 	a
loose 	release 	time 	arrangement 	with his 	supervisor,
Jim Harrington, 	under which he 	orally 	informed 	him of 	his
whereabouts.
In contrast, 	CSEA representatives 	were 	permitted 	release
time 	only for 	negotiations 	or 	"steward-related 	activities."
While 	there was 	no 	cap on release 	time 	for 	CSEA,
representatives 	had 	to 	request 	the 	time 	in writing 	and 	provide
as 	much notice as 	possible. 	CSEA was 	also 	required 	to 	provide
a 	monthly 	log showing use 	of 	release 	time. 	CEC was 	not
required 	to 	submit 	such a 	log. 	Despite 	the 	requirements 	placed
on CSEA use 	of 	release 	time, 	the 	record 	shows 	that 	the District
routinely provided 	a 	reasonable 	amount 	of 	release 	time 	to 	CSEA
14

representatives.
3. 	Miscellaneous Assistance.
The District 	assisted 	CEC 	in a variety of 	additional ways.
Election for 	CEC officers was 	conducted 	by the District, 	using
District 	resources 	and 	personnel. 	CEC used 	District 	stationery
for 	almost 	all 	of 	its written communications. 	The District
assisted 	in 	the 	distribution of 	CEC questionnaires to 	classified
employees.7 CEC 	photocopying 	expenses 	were 	covered 	by 	the
District, 	while 	CSEA paid 	for use 	of 	District 	photocopying
equipment. 	District 	meeting 	rooms 	were 	provided 	for 	CEC
meetings, 	although the 	same 	rooms were 	routinely provided 	to
various 	other 	organizations.
IV. 	CEC PARTICIPATION 	In 	"GOVERNANCE ORGANIZATIONS":
It 	is 	undisputed 	that 	the District 	from 	the 	outset 	intended
that 	CEC 	participate 	in 	the various 	"governance 	organizations"
on 	campus. 	Testimony focused 	on 	four 	major 	programs 	of 	this
type 	in which CEC participated. 	They are: 	(1) 	program review;
(2) 	administrative staff meetings; 	(3) 	administrative
organization task force; 	and 	(4) 	budget 	of 	potential
7once 	such questionnaire, distributed 	to 	all 	classified
employees, 	solicited 	input 	as 	to appropriate CEC philosophy,
and 	asked 	for 	activities 	where 	CEC 	should 	be 	involved. 	Most
responses 	stated 	that CEC 	should 	serve 	the District 	in an
advisory capacity, 	or 	be 	involved 	in social 	events. 	But 	a 	few
said 	that 	CEC 	should 	replace 	CSEA. 	This 	particular 	CEC
questionnaire was 	typed 	by Harrington's 	secretary.
15

extra-income. 	Also 	included 	in this 	area 	for 	purpose 	of
discussion 	is 	CEC 	participation at Board 	of Trustees 	meetings,
the ultimate 	"governance 	organization" 	on campus, 	and 	certain
hiring 	committees.
1. 	Program Review:
Dr. 	Gary Peterson, 	Executive Vice 	President 	for Academic
and 	Student Affairs, 	initiated 	the 	process 	known as 	program
review after 	coming 	to 	College 	of 	the Redwoods 	in 	1984 	from the
College 	of 	Siskiyous, 	where he had used 	the 	technique. 	Briefly
stated, 	program review is 	a 	process 	used 	to 	evaluate 	the 	entire
College 	of 	the Redwoods 	operation 	to 	determine where 	resources
were 	being 	spent, 	and where 	any changes 	in programming,
staffing, 	etc. 	could 	be 	beneficial. 	The process was undertaken
primarily 	because 	a 	four-year 	decline 	in ADA had 	generated 	some
concern 	by the Board 	of 	Trustees 	and 	the 	president. 	Obviously,
program 	review can 	result 	in major 	changes 	in 	employment
conditions, 	such as 	program reorganization or 	elimination,
layoffs, 	staffing changes, 	budget cuts. 	etc.
The 	process 	itself 	consisted 	of 	a 	massive 	data-gathering
effort 	by 	individuals 	from 	the 	various 	departments 	or 	segments
of 	the District. 	Approximately 40 meetings were 	held 	from
October 	1984 	through January 1985, 	with members 	of 	the
committee, 	and sometimes members of 	the public, 	in attendance.
During 	these 	meetings, 	which were usually chaired 	by
16

Dr. 	Peterson, 	information was 	presented, 	questions were asked,
and 	far-ranging discussions were 	held. 	Eventually, 	based 	on
the 	information generated, 	Dr. 	Peterson compiled a 	series 	of
recommendations 	in 	the 	form of 	a 	"Final 	Recommendation 	to 	the
Board 	of 	Trustees 	of 	the Redwoods 	Community College District."
an 	89-page 	document which was 	submitted 	to 	the Board 	in
February, 	1985. 	It 	included 	a minority report 	to which CSEA
was 	a 	signatory. 	The Board ultimately approved 	several 	fiscal
and non-fiscal 	recommendations and. 	as 	a 	result. 	$700,000 was
saved 	over 	an 	18-month period. 	The 	content 	of 	this 	process
and/or 	final 	recommendation and 	CEC's 	participation 	in 	the
overall 	process 	drew much attention during 	the 	hearing.
Specific 	areas 	considered 	during 	the 	program 	review are 	too
numerous 	to mention 	in this 	recommended 	decision. 	However, 	it
is 	necessary to 	describe 	some 	of 	these 	areas 	in 	order 	to
resolve 	the 	issues 	presented 	by 	this 	case.
According to Dr. 	Peterson, 	it was understood 	from the
beginning 	that 	the 	program 	review process 	would 	involve
personnel 	actions. 	This 	understanding proved 	to 	be 	accurate.
A 	partial 	list 	of 	recommendations 	potentially 	impacting 	on
classified 	employees 	was 	contained 	in 	the 	final 	document
Dr. 	Peterson sent 	to 	the Board 	of 	Trustees 	and 	covered 	the
following subjects: 	reinstatement 	rights, 	reduction 	in hours,
elimination of positions, 	purchase of 	new equipment, 	layoffs,
hiring, 	and reduction 	in force 	through resignation. 	All 	of
17

these 	and 	many 	other 	employment-related 	items 	were 	considered
in the context 	of 	the total 	budget. 	In fact, 	many of 	the
recommendations 	were 	ultimately 	implemented 	(e.g. 	elimination
of 	certain positions, 	reduction of 	hours). 	According to Yvette
Tucker. 	CSEA chapter 	president, 	none of 	these 	items was
negotiated with CSEA prior 	to 	the 	time Dr. 	Peterson 	sent 	his
recommendation 	to 	the Board 	of 	Trustees.
Although CEC was 	expressly 	invited 	by 	the District 	to
participate 	in 	the 	program review process, 	precise 	evidence
concerning 	the 	degree 	of 	that 	participation was 	sketchy.
Dr. 	Peterson 	invited 	a 	CEC 	representative 	to 	the 	first 	program
review meeting on October 	5, 	1984. 	Paul 	Jadro 	attended 	for
CEC. 	Minutes 	of 	the 	second 	program review meeting, 	held 	at 	the
Samoa Cook House 	restaurant 	on November 	16, 	1985, 	show that
Kirk was 	present 	for 	CEC 	and 	that 	Tucker 	was 	present 	for
CSEA.8 Kirk 	also 	attended 	an 	"all 	staff" 	program 	review
meeting on November 	2, 	1984.
It appears, 	however, 	that 	these were only preliminary
meetings. 	According to Dr. 	Peterson, 	it was not until about
the November 	6 	or November 	15 	meetings 	that 	the 	program review
8According to Dr. 	Weichert, 	the main reason for 	this
meeting was 	to discuss, 	in a general 	sense, 	potential 	layoffs
which might 	occur 	as 	a 	result 	of 	the 	program review process.
The 	thrust 	of 	this 	meeting 	involved District 	lawyers' 	and
representatives' 	explanations 	of 	the 	layoff 	process.
18

committee was 	actually constituted. 	It was 	at 	this 	time 	that
the 	committee 	formally 	began 	the 	process 	of 	collecting
information 	from the 	College 	of 	the Redwoods 	staff 	and 	bringing
it 	to 	the 	program review meetings. 	This 	process 	resulted 	in
Dr. 	Peterson 	receiving 	approximately 	one 	thousand
recommendations 	on December 	8, 	1984.
99 Up until 	this 	point.
the 	record 	shows 	that 	the 	most 	involvement 	CEC 	could 	have 	had
with 	the 	program review process was 	some 	gathering 	of
information and 	participating 	in the 	discussions 	at 	the 	various
meetings.
A 	distinction 	exists 	between 	attending 	early 	program 	review
meetings 	and 	formal 	membership 	on 	the 	program 	review
committee. 	According to Peterson, 	simply attending 	the
preliminary 	meetings 	and 	occasionally 	raising 	questions 	or
making 	comments 	was 	far 	different 	than 	being 	on 	the 	committee
itself. 	A 	seat 	on 	the 	committee 	involved 	more 	extensive
preparation, 	information gathering, 	and 	participation at
meetings.
The 	record 	shows 	that 	the CEC was 	invited 	to 	send 	a
representative 	to 	program review committee meetings, 	and, 	in
fact. 	CEC 	representatives 	attended 	some 	of 	the 	preliminary
meetings 	as 	stated 	above. 	However, 	specific 	evidence
concerning 	what
9Copies 	of 	the 	recommendations 	from 	the 	program 	review
process were 	sent 	out 	to 	the 	general 	population at 	the College,
including 	CEC.
19

transpired 	at 	official 	committee 	meetings 	and 	participation 	by
CEC at 	these meetings was 	limited, 	except 	that 	the 	final
written recommendations 	to 	the Board 	of 	Trustees, 	submitted 	in
February 1985. 	shows 	that Cathy Dellabalma, 	who was 	still 	a 	CEC
member 	at 	that 	time, 	was 	on the committee. 	Since 	the 	evidence
about 	the 	extent 	of 	her 	participation was 	very 	limited, 	her
actual 	participation 	in 	the 	process 	cannot 	be 	stated with any
degree 	of 	certainty.10	10
The 	program review function has 	not 	ended 	in 	the District.
Peterson testified 	that, 	beginning 	in September 	1985, 	the
Academic 	Services 	Council/Student 	Services 	Council 	commenced,
among other 	things, 	an 	ongoing 	program 	review function 	in 	their
respective 	areas. 	The 	only difference 	between 	the 	old 	program
review committee 	and 	the 	new arrangement 	is 	that 	the 	latter
will 	undertake 	this 	effort 	in a more 	limited way; 	that 	is, 	the
initial 	program review committee 	evaluated 	all 	programs 	in 	the
District 	in a 	short period of 	time, 	while 	the 	new committee
will 	perform the 	same 	program review function over 	a 	two 	or
three year 	period, 	evaluating about 	one 	third 	of 	the 	programs
per year.
The CEC 	is 	a member 	of 	the Academic 	Services
Council/Student 	Services 	Council. 	Dr. 	Peterson testified 	that,
except 	for 	issues 	in the 	Curriculum Committee, 	the 	CEC
10The 	final 	document 	also 	shows 	that Bill 	Connors 	was 	on
the 	program review committee, 	but 	his 	term as 	a CEC officer
expired 	shortly 	before 	the 	program 	review process 	began 	early
in the 	1984-85 	school year.
20

representatives 	will 	be 	permitted 	to 	participate 	in non-binding
votes. 	These votes 	are 	taken to determine where 	certain
members 	stand 	on projects 	proposed 	by Dr. 	Peterson. 	CSEA was
not 	asked 	to 	be 	on the Academic 	Services 	Council 	or 	the 	Student
Services Council.
Additionally, 	College 	of 	the Redwoods 	also 	has 	a 	steering
committee which plays 	the 	role 	of 	a 	coordinating 	council 	for
four major areas: 	(1) 	accreditation; 	(2) 	program review,
including 	instructional 	and 	student 	services, 	financial
services, 	and facilities; 	(3) 	educational master plan; 	and 	(4)
comprehensive 	state 	pilot 	plan. 	A CEC 	representative 	sits 	on
the 	steering 	committee.
Dave Young 	testified 	that 	during 	negotiations 	for 	the
1981-82 	school 	year, 	CSEA proposed 	that 	it 	participate 	in
several 	of 	the 	areas 	described 	above where 	CEC 	is 	now
involved. 	Among 	these was 	a 	proposal 	that 	CSEA have 	a
representative 	on 	any committee 	that 	addresses 	or 	determines
the 	"goals, 	objectives and future" 	of 	the District. 	The
District rejected 	the proposal, 	according to Young, 	because 	it
was 	part 	of 	the 	administrative 	function. 	The 	proposals were 	on
the 	table for months, 	they were modified, 	and 	eventually
dropped.
2. 	Administrative Organization Task Force 	(AOTF):
During 	1985 	CEC participated 	in the AOTF, 	a 	body whose
broad 	purpose was 	to 	use 	the 	committee 	system to 	evaluate 	and
21

reorganize, 	if necessary, 	the administrative staff 	in the
District. 	AOTF 	objectives 	included 	the 	following.
1. 	To 	provide 	leadership 	for 	evolving 	educational 	program
goals 	through assuring participation, 	communication,
and 	understanding.
2. 	To 	provide 	clarification of 	role, 	responsibility,
accountability, 	and 	appropriate 	balance 	of
administration 	and 	supervision 	assignments.
3. 	To 	assign appropriate 	titles 	and 	compensation 	for
duties.
4. 	To 	improve 	balance 	and 	coordination within 	the
administration 	team.
5. 	To 	establish 	framework 	for 	making 	administrative
assignments.
Neil 	Kirk was 	appointed 	to 	the AOTF 	in February 	1985. 	There
were 	approximately 	two 	or 	three AOTF meetings 	per 	week 	for
twelve weeks, 	culminating 	in a 	reorganization which was
implemented 	on July 15, 	1985. 	The 	subject areas ultimately
evaluated 	by the AOTF 	involved 	reclassification, 	staffing,
administrative costs, 	lines of 	authority, 	and overall
responsibilities.11	111	1
In a May 20. 	1985 meeting, 	during the reorganization
process, 	the CEC offered 	to Dr. 	Peterson its view of a
"proposed" 	organizational 	development 	plan. 	Offered 	"for
discussion purposes", 	the 	plan contained CEC's version of
college 	governance, 	suggesting makeup 	of 	the Executive
Committee.
11The 	AOTF 	reported 	its 	recommendations 	to 	the 	program
review committee, 	although they were 	two 	separate 	projects.
Dr. 	Peterson served 	as 	a liaison between the 	two 	groups.
22

and 	the 	timing 	and 	structure 	of 	administrative 	staff 	meetings.
Additionally, 	CEC 	proposed 	a 	college 	committee 	structure which
included 	the Academic 	Services 	Council. 	Student 	Services
Council, 	and Administrative Services Council, 	as well as
sub-committees 	under 	each. 	CEC suggested 	it have a
representative 	on each council. 	The 	record 	is 	unclear 	how
these 	suggested 	discussion 	items 	were 	received 	by Dr. 	Peterson.
Although Kirk 	testified 	that 	the AOTF 	meetings 	never
included 	discussions 	about 	the 	impact 	of 	reorganization 	on
bargaining unit 	employees, 	the 	record 	shows 	just 	the 	opposite.
In a June 	11, 	1985 memo 	addressed 	to 	the AOTF 	(and 	the 	program
review committee), 	Jerry Six, 	Dean of Student Services, 	sought
input 	regarding 	the 	structure 	of 	a 	department where 	the
Financial 	Aid 	Director 	and 	the Director 	of 	the 	Student
Activities, 	both bargaining unit positions, 	had 	been combined
into 	one 	management 	position without 	providing 	for 	clerical
support. 	This 	action was 	taken based 	on an AOTF
recommendation. 	Specifically, 	Six 	suggested 	filling the
support 	position, 	and 	requested 	the 	committee's 	support 	in
addressing 	these 	issues 	after 	the 	management 	position was
filled.11
11At 	one 	point. 	Dr. 	Peterson testified 	that 	both
positions 	were 	in 	the 	bargaining unit. 	He 	then 	testified 	that
only one 	of 	the positions was 	in the unit. 	Thus, 	the record 	is
unclear 	on this 	point. 	See 	transcript 	552-553. 	This
inconsistency need 	not 	be 	resolved 	here. 	For 	purposes 	of 	this
23

According to Dr. 	Peterson, 	this 	caused a major 	"Snafu" 	and
prompted 	the AOTF 	to 	hold 	another 	meeting 	to 	discuss 	the
situation. 	He 	said 	the AOTF was 	concerned 	only with 	the
administrative 	structure, 	and 	once 	that was 	in place 	the
existing 	support 	staff 	issue would 	be 	resolved. 	This
necessarily 	involved 	the 	moving 	of 	bargaining unit
positions.13	13
decision, 	it 	is 	enough that at 	least 	one 	bargaining unit
position, 	and 	the 	clerical 	support 	position attached 	to 	it, 	was
affected 	by 	the 	AOTF 	recommendation.
In another 	example, 	the AOTF discussed 	secretarial 	help 	for
the new Dean of 	Instruction. 	This was 	probably 	the main
personnel 	change 	in the 	new organization, 	according 	to Peterson.
3. 	Administrative Staff Meetings:
Administrative 	staff 	meetings 	are 	held 	each Monday
afternoon. 	As 	the name 	implies, 	they are 	attended 	by members
of 	the 	administrative 	team, 	but 	they are 	also 	open 	to 	the
public.14 These meetings 	appear 	to 	take 	the 	form of 	round
13 Dr. 	Peterson 	testified 	that 	any 	impact 	on 	bargaining
unit 	employees 	as 	a 	result 	of 	this 	decision was 	negotiated with
CSEA. 	Tucker 	testified 	that 	negotiations 	didn't 	begin until
the 	recommendations were 	already made, 	and 	the 	bargaining was
in process 	as 	of 	the 	time 	of 	the hearing 	in this matter.
14 Dr. 	Peterson 	testified 	that 	administrators 	and
management 	staff 	attend 	these 	meetings. 	He 	defined
administrators 	as 	certificated members 	of 	the 	institution who
are 	paid 	on 	the 	certificated 	scale., 	i.e. 	Division Chairperson,
Deans, 	President, 	Executive Vice-President, 	etc. 	The
management staff, 	he said, 	is made up of 	the classified
equivalent 	of 	administrators.
24

table 	discussions 	about 	a 	variety 	of 	subjects 	which happen 	to
be 	of 	a 	pressing nature when the meeting occurs. 	For 	example,
the 	agenda 	for 	the meeting of 	October 	20, 	1983 	includes
subjects 	such as 	personnel, 	program review, 	review of Board 	of
Trustees 	minutes 	and 	sabbatical 	leaves. 	The 	agenda 	for 	the
November 	14. 	1985 meeting 	includes 	the 	status 	of 	current
negotiations, 	and 	the announcement 	of 	a workshop 	to discuss 	the
then 	current 	collective 	bargaining 	agreement.15	15
The CEC Constitution. 	Art. 	VII. 	says that a CEC
representative 	"shall" 	be 	on 	the 	administrative 	staff
committee. 	Consistent with this 	provision, 	according to 	the
testimony of 	both Neil 	Kirk and Dr. 	Weichert, 	the District
invited 	CEC 	to 	attend.
Beginning 	in October. 	1983. 	Kirk attended 	administrative
staff 	meetings 	as 	his 	schedule 	permitted. 	Since 	these meetings
were 	held 	at 	2:00 	p.m.. 	presumably Kirk used 	release 	time.
Kirk 	received 	agendas 	for 	all 	administrative 	staff 	meetings.
He was 	introduced 	at 	the 	first meeting he 	attended, 	but 	it
appears 	that he did 	little, 	if 	anything, 	during his 	attendance
at 	the 	remainder 	of 	the meetings. 	Kirk 	testified 	that 	he
usually 	spoke 	only when asked 	questions. 	His 	main 	purpose was
to 	report 	back 	to 	the CEC 	regarding 	the 	items 	discussed 	at 	the
1 5 The 	contract 	administration workshop 	was 	conducted 	by
one of 	the District's attorneys. 	Neil Kirk. 	CEC president, 	was
invited 	to 	attend.
25

1 6
meetings.16 Thus, 	CEC's 	actual 	participation 	at 	these
meetings 	appears 	to 	have 	been 	limited.
Yvette Tucker 	testified 	that, 	before CEC was 	formed, 	she
asked 	to 	be 	on the 	administrative 	staff 	committee, 	but 	this
request was 	rejected 	by Tom Hannah 	because 	the 	committee was 	a
"governance" 	committee, 	and. 	according to Hannah, 	CSEA had no
right 	to 	be 	involved 	in that 	process. 	After 	CEC was 	formed.
Tucker 	renewed 	her 	request, 	but Hannah again rejected,
explaining 	that 	there was 	no 	need 	for 	a 	CSEA representative 	on
the 	administrative 	staff 	committee 	because 	classified 	employees
now had 	a 	representative 	in the 	form of 	the CEC.
Additionally, 	in 	1984-1985. 	CSEA proposed during
negotiations 	that 	a 	vehicle 	for 	improving 	communications 	be
developed, 	according 	to Tucker. 	CSEA suggested 	that 	the
parties 	meet 	regularly 	to 	discuss 	non-negotiable 	matters 	and
generally 	to 	engage 	in 	problem 	solving. 	CSEA patterned 	this
proposal 	after 	a 	similar 	arrangement 	that 	had 	been 	set 	up
successfully 	in the Eureka 	City Schools. 	Once 	again. 	Hannah
responded 	that 	there was 	no 	need 	for 	this 	because 	CEC 	existed.
4. 	Budget 	of 	Potential Extra 	Income
On January 3. 	1984, 	Dr. Weichert. 	by memo, 	sought input
from CEC 	and 	other 	groups 	on 	campus 	to 	help 	implement 	the 	next
step 	of 	financial 	planning 	necessary 	for 	the 	1984-85 	budget.
16The 	same 	can 	be 	said 	about 	other 	CEC members who
attended 	when Kirk 	couldn't.
26

The 	possibility 	existed 	that 	funds 	vetoed 	by 	the 	Governor 	in
prior 	years 	would 	be 	restored 	and/or 	additional 	funds 	would 	be
available. 	The 	essence 	of Dr. 	Weichert's 	memo was 	to 	solicit
input 	from various 	"District Organizations" 	as 	to how they
would 	prioritize 	the 	spending 	of 	any additional 	funds.17 The
goal was 	to 	get 	a 	"profile 	of 	staff 	viewpoints" 	on this 	issue.
Dr. 	Weichert wrote 	in the memo 	that 	"the 	planning 	instrument
will 	be 	considered 	by the 	administration 	and 	the Board 	of
Trustees 	as 	one 	of 	the 	criteria 	in 	the 	development 	of 	the
1984-85 	budget." 	Meetings were 	set 	for 	the various
organization to 	give 	input.
Over 	CSEA objections, 	CEC met with the District 	on
January 	27, 	1984 	in 	the Forum Theater 	on 	campus 	to 	discuss 	the
CEC 	input. 	Dr. 	Weichert 	and Dorothy Dilling. 	the 	business
office 	representative, 	conducted 	this 	significant 	meeting 	from
a 	position 	immediately 	in front 	of 	the 	stage.18 The 	seven
CEC members 	sat 	on the 	stage 	facing 	the 	audience, 	which was
made up 	largely of 	classified 	employees. 	Matt Rosen, 	a CSEA
17"District 	Organizations" 	were defined 	in Dr. 	Weichert's
memo 	as 	the Academic 	Senate, 	Classified Employees 	Council,
College 	of 	the Redwoods Faculty Organization, 	California 	School
Employees Association, 	and 	the Associated 	Students.
18 Although Dr. 	Weichert's 	memo 	suggests 	he wanted 	input
from the various 	organizations 	on campus, 	and 	the January 27
meeting was 	advertised 	as 	seeking 	CEC 	input, 	questionnaires
went 	out 	to 	individual 	employees 	in an attempt 	to 	get 	their
input. 	Thus, 	the District 	effectively sought 	input 	from two
sources, 	individual 	employees 	and 	organizational 	sources.
27

representative, 	sat 	on stage with the CEC members. 	At 	one
point 	Rosen 	stood 	to 	declare 	that 	he 	generally 	supported 	CEC
efforts, 	but 	he 	also 	took 	that 	opportunity to 	clarify 	the
respective 	roles 	of 	CEC and 	CSEA. 	i.e. 	that CEC 	should 	not
invade 	the 	domain of 	the 	exclusive 	representative.
Seeking 	input 	about 	how additional 	money 	should 	be 	spent,
Weichert 	and 	Dilling 	asked 	employees 	for 	their 	ideas 	in 	the
event 	the District 	received 	an additional 	$400,000. 	an
additional 	$800,000. 	or 	an additional 	$1,000,000? 	Employees
offered 	their views, 	and. 	according to Kirk, 	a 	"lively"
discussion occurred. 	Various 	suggestions 	made 	by 	classified
employees 	and 	CEC 	members 	regarding 	prioritized 	spending 	of
additional 	funds 	were ultimately placed 	in 	the 	College 	of 	the
Redwoods Financial Master 	Plan. 	Similar 	meetings 	were 	held
where CSEA submitted 	its 	input 	on the 	budget. 	Dr. 	Weichert
testified 	that 	he 	gave 	equal 	weight 	to 	the 	CEC 	and 	the 	CSEA
presentations.
19A 	related 	governance 	organization 	is 	the 	financial
management 	committee. 	The purpose 	of 	this 	committee, 	which met
monthly, 	is 	to 	play a major 	role 	in the overall 	budgetary
process 	in the District. 	On May 29, 	1985. 	Al Hassman, 	Director
of Business 	Services, 	asked CEC to 	select a member 	to
participate 	on the 	committee. 	Hassman wrote to Kirk: 	"We 	are
making many changes 	in our 	present 	system. 	The 	time 	for 	your
influence 	is 	'now.111 Kirk 	testified 	that 	he 	asked 	Council
members 	to 	join the 	committee, 	but 	no 	one 	stepped 	forward.
During 	the 	1981-82 	negotiations 	CSEA proposed 	that 	it 	be 	given
representation on 	the District's 	budget 	committee. 	According
to Dave Young, 	the District 	expressed 	"strong 	reservations"
about 	the 	proposal. 	The 	proposal was 	dropped 	after 	several
months.
28

The 	Forum Theater 	meeting was 	advertised 	as 	a 	CEC 	meeting
and 	invitations 	were 	sent 	out 	to 	all 	classified 	employees 	by
Sue 	Bailey. 	Kirk 	said 	that 	the 	CEC 	knew nothing 	about 	the
invitations 	and 	played 	no 	part 	in 	their 	issuance.
Additionally, 	at 	this 	meeting Kirk 	informed 	employees 	that
they 	should 	be 	free 	to 	present 	their 	problems 	to 	the CEC
without 	fear 	that 	employee 	names 	or 	problems would 	be 	revealed
at 	some 	later 	date; 	that 	is. 	Kirk made 	clear 	that 	employee
communications 	with CEC would 	be 	kept 	confidential. 	He
testified 	that 	he 	did 	this 	in 	the 	spirit 	of 	opening
communications 	and 	permitting 	employees 	to 	have 	an 	outlet 	for
discussion of 	their 	problems when 	the 	offices 	of 	CSEA
representatives were 	not 	open 	for 	these 	purposes.
5. 	Board 	of Trustees Meetings:
As 	CEC president, 	Neil Kirk was 	invited 	to 	all Board 	of
Trustees 	meetings 	and 	given a 	slot 	on 	the 	agenda 	under
"Organizational 	Reports." 	This 	enabled 	CEC 	to 	present 	reports
on a 	diverse 	set 	of 	issues within 	the 	time 	frame 	alotted 	by the
board. 	For 	example, 	on one 	occasion he 	presented 	the CEC
year-end 	report. 	On another 	occasion he 	endorsed 	a 	tentative
agreement 	in 	the 	collective 	bargaining 	agreement 	between CSEA
and 	the District. 	Another 	presentation by Kirk at 	a Board 	of
Trustees 	meeting 	involved 	the 	CEC 	position 	on 	recommendations
of 	the AOTF.
In contrast, 	CSEA has 	no 	special 	slot 	on the Board 	of
29

Trustees 	agenda. 	Instead, 	CSEA representatives 	are 	permitted
to 	speak 	only during 	the 	"Public 	Comment" 	slot. 	According 	to
Dave Young, 	this 	arrangement 	presents 	problems 	because 	the
board 	limits 	public 	comment 	to 	those 	matters 	already 	on 	the
agenda. 	CSEA wants 	to 	be 	able 	to 	raise 	any 	item at 	the 	board
meeting, 	as 	is 	the 	privilege 	of 	CEC by virtue of 	its 	placement
under 	organizational 	reports.
At 	various 	times 	during 	negotiations 	between CSEA and 	the
District, 	this 	issue 	arose 	and 	CSEA pressed 	for 	its 	own 	slot.
Before 	CEC was 	established. 	CSEA negotiators were 	told 	by
Thomas 	Hannah 	that 	it was 	inappropriate 	for 	CSEA to 	have 	such a
slot 	because 	it was 	the 	exclusive 	representative. 	After 	the
CEC was 	established. 	CSEA again 	raised 	the 	issue 	and Hannah
again 	said 	there was 	no 	need 	for 	such 	a 	slot 	because 	classified
employees were 	represented 	by CEC 	at 	the 	Board 	of 	Trustees
meetings.
6. 	Hiring Committees:
Neil 	Kirk was 	asked 	by Tom Hannah 	to 	provide 	a
representative 	to 	sit 	on 	a 	screening 	committee 	established 	to
hire 	a 	Career 	Center 	Information Technician, 	a 	bargaining unit
position. 	One purpose of 	the 	committee was 	to 	screen
applicants 	and 	establish a 	best 	qualified 	list. 	The 	record 	is
unclear 	as 	to whether 	it was 	a 	function of 	the 	committee
actually 	to 	select 	a 	candidate. 	Kirk 	provided 	the
30

representative, 	but 	had 	no 	further 	involvement. 	A bargaining
unit 	employee 	was 	eventually 	promoted 	into 	the 	position.
In addition. 	Kirk 	sat 	on a 	screening 	committee 	for 	the
Associate Dean of 	Student 	Services, 	and 	the Dean of 	Student
Services. 	During 	the 	interviews. 	Kirk asked 	the 	applicants
questions 	about 	the 	role 	of 	CEC.
District 	recently revised 	its 	policy 	to 	include 	a 	CEC
representative 	on each 	screening 	committee 	for 	the 	selection of
administrators 	other 	than 	the 	Superintendent/President,
Executive Vice 	President 	and Division Chairpersons. 	Dave Young
testified 	that 	he 	proposed 	during 	the 	1981-82 	negotiations 	that
CSEA be 	given 	some voice 	in these 	committees. 	The District
opposed 	this 	suggestion. 	During 	the 	course 	of 	negotiations 	the
proposal 	was 	modified 	and 	eventually withdrawn.
ISSUES
31
1.	1. 	Is 	the 	CEC an employee 	organization within
the 	meaning 	of 	section 	3540.l(d)?
2 .	2. 	Did 	the CEC 	represent 	employees 	in a
bargaining unit 	where 	CSEA 	served 	as
exclusive 	representative?
3 • 	Did 	the 	District
A. 	dominate 	or 	interfere with 	the
formation or 	administration of CEC. 	or
B. 	contribute 	financial 	or 	other 	support
to CEC, or
C. 	in any way encourage 	employees 	to
support 	CEC?

DISCUSSION
Positions 	of 	the Parties:
The 	charging 	party 	contends 	that 	the 	CEC 	is 	an employee
organization which 	is 	created, 	supported, 	and 	dominated 	by the
District. 	This 	conduct, 	continues 	the charging party, 	tends 	to
encourage 	employees 	to 	prefer 	CEC 	over 	the 	CSEA 	in violation of
Section 3543.5(d). 	In addition, 	the charging party contends
that 	the District's 	"creation and 	maintenance" 	of 	the CEC
interferes with the 	fundamental 	principles 	of 	employee 	free
choice and exclusivity, 	in violation of 	Sections 	3543.5(a) 	and
3543.5(b).
The District 	argues 	in 	response 	that 	the CEC 	is 	not 	an
employee 	organization within the meaning of 	the Act. 	The
District's 	position 	is 	that 	an 	organization 	that 	does 	not
actually 	participate 	in 	activities 	specifically 	delegated 	to
the 	exclusive 	representative 	(i.e. 	traditional 	collective
bargaining) 	is 	not 	an employee 	organization within the meaning
of 	the Act. 	The District maintains 	that CEC did 	not 	attempt 	to
engage 	in 	traditional 	collective 	bargaining 	or 	grievance
handling 	in 	this 	case. 	CEC 	activities 	involved 	primarily
information gathering, 	and 	did 	not 	interfere with CSEA's 	role
as 	exclusive 	representative. 	Thus, 	CEC cannot 	be 	labeled 	an
employee 	organization, 	nor 	can 	its 	activities 	otherwise 	be
considered unlawful 	under 	the Act. 	Even 	if 	the CEC 	is 	found 	to
32

an be employee organization, 	continues 	the District, 	there can
be 	no 	violation 	since under 	the EERA an 	employer 	has 	the 	right
to 	consult with 	"any employee 	organization" 	on 	any matter
outside 	the 	scope 	of 	representation. 	Finally, 	the District
argues 	that 	any prohibition on the 	right 	of 	CEC 	to 	exist
violates 	CEC's 	members 	freedom of 	speech and 	right 	to
association under 	the First 	Amendment 	to 	the United 	States
Constitution, 	as well as 	the 	employer's 	freedom of 	speech under
the 	same 	provision.
Employee 	Organization Status:
The 	first 	question 	to 	be 	addressed 	is whether 	CEC 	is 	an
employee 	organization within 	the meaning 	of 	the EERA.
Section 3540.l(d) 	defines 	employee 	organization as 	follows:
(d) 	"Employee organization" 	means 	any
organization which 	includes 	employees 	of 	a
public 	school 	employer 	and which has 	as 	one
of 	its 	primary purposes 	representing 	those
employees 	in their 	relations 	with 	that
public 	school 	employer. 	"Employee
organization" 	shall 	also 	include 	any person
such an 	organization 	authorizes 	to 	act 	on
its behalf.
Taking 	guidance 	from 	the 	private 	sector, 	the Board 	has
interpreted 	similar 	language 	under 	the 	State 	Employer-Employee
Relations Act 	(SEERA)20 to mean 	that 	a 	given aggregation of
20section 	3513(a) 	defines 	employee 	organization as
follows:
(a) 	"Employee organization" 	means any
33

employees, 	to 	be 	considered an employee 	organization, 	need 	not
be 	formally constituted, 	have 	formal 	membership 	requirements,
hold 	regular meetings, 	have constitutions or by-laws, 	or 	in any
other 	manner 	conform to 	the 	common definition of 	an
"organization." 	Rather, 	the Board 	placed 	the 	central 	focus 	on
whether 	the group has. 	as a 	key purpose, 	the representation of
employees 	on employment 	related matters. 	Under 	this 	test, 	the
Board 	has 	found 	that 	even 	two 	employees 	who 	act 	in 	concert 	to
present 	grievances 	about 	cuts 	in overtime 	and 	loss 	of 	jobs 	may
be 	viewed 	to 	have 	constituted 	themselves 	an 	employee
organization 	because 	they have 	joined 	together 	to 	represent
employees 	concerning working 	conditions. 	Monsoor v. 	State 	of
California. 	Dept, 	of Developmental Services 	(1982) 	PERB
Decision No. 	228-S; 	see also CSEA v. 	Regents of 	the University
of California 	(1984) PERB Decision No. 	449-H. 	pp. 	95-96. 	where
a 	single 	employee, 	acting 	in concert with only two 	other
employees 	regarding a matter 	affecting wages, 	was 	found 	by the
Board 	to 	be 	an 	employee 	organization within 	the meaning 	of 	the
11
organization which 	includes 	employees 	of 	the
state 	and which has 	as 	one 	of 	its 	primary
purposes 	representing 	these 	employees 	in
their 	relations 	with 	the 	state.
34

Higher 	Employer-Employee 	Education 	Relations 	Act.2 1
Under 	this 	precedent, 	it 	is 	concluded 	that CEC 	is 	an
employee 	organization. 	The 	CEC 	is 	a 	far 	more 	formal
organization 	than were 	the 	employee 	organizations 	in 	either
Monsoor 	or U.C. 	Regents with regard 	to 	its 	level 	of
organization and 	its 	activities.
Regarding 	employee 	organization 	characteristics. 	CEC 	had
regular meetings, 	it kept minutes of 	these meetings, 	and 	it
elected 	representatives 	from 	the 	various 	components 	of 	the
District 	in a 	secret 	ballot 	election. 	It 	also 	elected 	officers
by secret 	ballot 	to 	specified 	terms. 	Its 	internal 	organization
included 	establishing a 	list 	of 	employees with 	telephone
numbers 	in the various 	organizational 	components 	of 	the
District. 	CEC had 	a 	formal 	constitution and 	set 	of 	by-laws.
Although 	it 	had 	no dues 	structure, 	it 	claimed as 	its
21section 	3562(g) 	of 	the HEERA defines 	employee
organization as 	follows:
(g) 	"Employee organization" 	means 	any
organization of 	any 	kind 	in which 	higher
education 	employees 	participate 	and which
exists 	for 	the purpose, 	in whole or 	in part,
of 	dealing with 	higher 	education 	employers
concerning grievances, 	labor disputes,
wages, 	hours, 	and other 	terms and 	conditions
of 	employment of 	employees. 	Employee
organization 	shall 	also 	include 	any person
such 	an organization authorizes 	to 	act 	on
its 	behalf. 	An academic 	senate, 	or other
similar 	academic 	bodies, 	or divisions
thereof, 	shall 	not 	be 	considered 	employee
organizations 	for 	the 	purposes 	of 	this
chapter.
35

constituency a well 	defined 	group 	of 	employees, 	including 	those
represented 	by CSEA on an 	exclusive 	basis. 	Release 	time was
granted 	for 	CEC 	representatives 	to 	engage 	in a 	variety of
activities. 	The 	conclusion 	that 	CEC was 	structured 	in 	the 	same
mold 	as 	an employee 	organization 	is 	inescapable. 	See NLRB v.
Cabot Carbon Co. 	(1959) 	360 U.S. 	203, 	[44 LRRM 2204]; NLRB v.
Thompson Ramo Wooldridge 	(CA 7 	1962) 	305 F.2d 	807, 	[50 LRRM
2759]; 	Oak Grove School District 	(1986) 	PERB Decision No. 	582.
An examination of 	CEC 	activities 	leads 	to 	the 	same
conclusion. 	To 	qualify as 	an employee 	organization under 	the
plain language 	of 	section 3540.l(d), 	an organization need not
represent 	employees 	on negotiable 	matters. 	It 	need 	only
represent 	employees 	in 	their 	"relations" 	with 	the 	public 	school
employer. 	Thus, 	the CEC may be an employee organization under
the Act 	even assuming 	it 	never 	represented 	employees 	in 	the
bargaining process 	or grievances. 	Let us 	examine 	the areas
where CEC was 	active.
District 	witnesses 	and 	CEC 	President 	Kirk 	(and 	the 	CEC
Constitution) 	disclaimed 	any 	intention of 	usurping 	the 	role 	of
exclusive 	bargaining 	agent. 	They 	steadfastly maintained 	that,
despite CEC's union-like 	structure, 	its 	sole purpose was 	to
provide 	a 	line 	of 	communication 	from 	classified 	employees 	to
the District 	(and vice versa) 	and 	to 	increase morale. 	While
the 	record 	is 	replete with such disclaimers, 	the 	reality of 	the
situation clearly was 	otherwise. 	CEC was 	not 	simply a 	shell 	of
36

an 	organization designed 	to 	improve 	morale 	by 	sponsoring 	social
functions 	and 	satisfying 	a 	communications 	need 	in 	the
District. 	Obviously, 	to 	some 	extent 	it did 	serve 	these
purposes. 22 but 	it 	did much more.
Consistent 	with 	the 	representative 	status 	conferred 	upon
the 	organization 	by Dr. 	Weichert 	and 	the 	Constitution and 	By
Laws. 	CEC. 	in addition to having the markings 	of 	a 	full-fledged
employee organization, 	in fact, 	acted 	in a 	representative
capacity 	for 	classified 	employees 	in 	their 	employment 	relations
with 	the District. 	That 	the 	CEC 	took 	on 	this 	role 	really came
as 	no surprise 	to CSEA. 	As 	early as August of 	1983, 	Dave Young
protested 	the 	formation 	of 	the Council 	for 	precisely 	this
reason. 	His 	predictions 	proved 	to 	be accurate.
Dr. 	Weichert's 	early memo 	in August 	1983. 	during the
formative 	stages 	of 	the Council, 	expressly declared 	that 	the
CEC was 	a 	"representative 	body" 	designed 	to 	deal with
"non-collective 	bargaining 	issues" 	which were 	of 	concern to
classified 	employees. 	The memo 	states 	that 	the 	CEC was 	to
provide 	an 	"avenue 	of 	representation" 	for 	classified
22 Even 	this 	point 	is 	subject 	to 	question. 	Kirk 	testified
the 	delineation of 	the 	respective 	roles 	of 	the 	two 	organizations
was 	a 	subject 	of 	ongoing debate 	on 	campus. 	And 	the 	record 	shows
that 	on 	some 	occasions 	there were 	extremely 	heated 	discussions
between CSEA and 	CEC representatives 	about 	this 	subject. 	Thus,
at 	least 	in some 	circles, 	the question of whether 	the 	creation
of 	CEC 	improved morale 	or 	represented 	a 	divisive 	issue 	is
debatable. 	The debate 	is 	no 	doubt 	fueled 	by the 	fact 	that 	at
least 	one 	reason 	cited 	for 	low morale 	on 	campus 	was 	the 	advent
of 	collective bargaining. 	See footnote 	3, 	supra.
37

employees. 	The CEC Constitution 	similarly provides 	that 	a
primary purpose 	of 	the 	Council 	is 	to 	be 	a 	"representative 	body
to 	act 	. . . . 	in 	the 	formation of 	policies 	in all 	matters
affecting 	the welfare 	of 	the 	college 	and 	the 	classified
employees."
Neil 	Kirk was 	invited 	to 	all 	Board 	of 	Trustees 	meetings 	and
given a 	permanent 	slot 	on 	the 	agenda 	under 	"Organizational
Reports." 	Kirk used 	this 	slot 	on 	several 	occasions 	as 	a 	public
forum to 	present 	the views 	of 	CEC on a 	variety of 	subjects,
ranging 	from CEC 	annual 	reports 	to AOTF 	recommendations 	to
collective 	bargaining. 	In doing so. 	he 	purportedly spoke as 	a
representative 	of 	all 	classified 	employees, 	since 	the CEC held
itself 	out 	as 	an organization 	that 	counted 	as 	its 	constituents
all 	classified 	employees.
In a 	similar 	context, 	the CEC 	represented 	the views 	of 	its
constituents 	on 	the 	extra 	money question, 	clearly a 	matter
which related 	to 	a 	negotiable 	subject. 	See 	Section 	3543.2 	and
Oak Grove 	School District, 	supra. 	Arguments 	that 	the District
sought 	only 	to 	get 	input 	from 	"district 	organizations" 	or 	to
get 	a 	"profile 	of 	staff 	viewpoints" 	on this 	issue miss 	the
point. 	The 	reasons 	the District 	held 	the meetings 	are
irrelevant. 	What 	is 	relevant 	is 	that CEC. 	a well 	organized
organization 	supported 	by 	the 	District 	and 	purporting 	to 	speak
for 	all 	classified 	employees, 	represented 	these 	employees 	in
giving vital 	input 	to 	the District 	on a 	negotiable matter.
Significantly, Dr. Weichert's
38

candid 	admission 	that 	he 	gave 	equal 	weight 	to 	the 	CEC 	and 	the
CSEA 	input, 	elevates CEC 	to 	a 	level 	comparable 	to 	the 	exclusive
representative.
No 	one 	could 	seriously contend 	that 	CSEA, 	by 	its
participation 	in the 	same 	process, 	was 	not 	"representing" 	unit
employees 	in a 	negotiable 	area. 	Indeed, 	one might 	argue 	that
it was 	bound 	by 	law to 	do 	so. 	See 	section 3544.9. 	The
activities 	of 	these 	two 	employee 	organizations 	in 	the 	context
of 	the 	extra 	money question were 	strikingly 	similar. 	To
characterize CEC's 	activity as 	a 	"communication" 	effort 	and
CSEA's 	as 	a 	"representational" 	effort 	simply elevates 	form over
substance.
23
The 	details 	surrounding 	the 	meeting 	on 	extra 	money 	cannot
be 	overlooked 	because 	of 	the 	preferred 	status 	it 	placed 	on
CEC. 	The meeting was 	announced 	as 	a 	CEC meeting and 	open to
all 	employees, 	but 	it was 	structured 	in a way that 	suggested 	it
was 	a 	joint 	meeting 	sponsored 	by District 	and 	CEC
representatives. 	Dr. 	Weichert 	and Dorothy Dilling 	conducted
the meeting, 	with CEC members 	participating from on stage. 	It
was 	against 	this
2 3 In fact, 	the 	kind 	of 	CEC participation 	in the 	extra
money question, 	as well 	as 	in 	the AOTF 	and 	program review
areas, 	is 	not unlike that 	kind 	of 	representational 	right which
the Board 	has 	guaranteed 	to 	nonexclusive 	representatives 	in
other 	settings. 	See e.g. 	State of California. 	Franchise Tax
Board 	(1982) 	PERB Decision No. 	229-S; 	Los Angeles Unified
School District 	(1983) 	PERB Decision No. 	285, 	and cases 	cited
therein. 	In view of 	these decisions, 	it cannot credibly be
argued 	that 	the 	activities 	by 	the 	nonexclusive 	representatives
in 	these 	cases 	amounted 	only to 	"communications."
39

background. 	Kirk testified, 	that a 	"lively" 	discussion
occurred. 	At 	one point 	in the meeting he 	told 	employees, 	in
the 	presence 	of Weichert 	and Dilling. 	that 	they should 	be 	free
to 	present 	their 	problems 	to 	the 	CEC without 	fear 	that 	their
names will 	be 	revealed 	at 	some 	later 	date. 	Kirk 	testified 	that
he 	made 	this 	suggestion 	in the 	limited 	spirit 	of 	opening
communications 	and 	giving 	employees 	an 	outlet 	to 	discuss
problems 	when 	the 	offices 	of 	CSEA were 	closed. 	One would 	have
to 	seriously distort 	reality 	in 	order 	to 	conclude 	that 	this
signaled 	anything 	other 	that 	an 	open 	offer 	of 	representation 	on
employment 	related 	matters.
Additional 	CEC 	representation 	of 	classified 	employees 	is
found 	in 	its 	participation 	in 	the Administrative 	Organization
Task Force. 	The purpose of 	the AOTF. 	in essence, 	was 	to use
the 	committee 	system to 	evaluate 	and 	reorganize, 	if 	necessary,
the 	administrative 	staff 	in the District. 	CEC 	proposed 	an
organizational 	development 	plan which 	contained 	its 	version 	of
"college 	governance" 	and 	a 	college 	committee 	structure. 	This
participation, 	which 	involved 	about 	two 	to 	three meetings 	per
week 	for 	about 	twelve weeks, 	clearly establishes 	that 	CEC was
deeply 	involved 	in the AOTF, 	thus 	underscoring 	its 	preferred
status. 	It 	is 	indeed quite unusual 	for 	an employer 	to 	permit
an organization of 	bargaining unit 	employees 	access 	to 	programs
which 	traditionally 	have 	been 	closely 	guarded 	areas 	of
managerial 	prerogatives.
40

Nevertheless, 	although the main purpose 	of 	the AOTF was
directed 	at 	analyzing the 	administrative 	staff, 	it 	must 	be
recognized 	for 	purposes 	of 	evaluating CEC's 	level 	of 	activity
that 	changes 	at 	the 	administrative 	staff 	level 	unavoidably
impacted 	on working 	conditions 	of 	the 	support 	staff, 	which was
made 	up 	of 	the 	bargaining unit 	employees 	represented 	by CSEA.
At 	least 	two 	examples 	of 	such an 	impact 	are 	found 	in 	the
record. 	First, 	as 	a 	result of 	the 	task force recommendation,
the Financial Aid Director 	and 	the Director 	of 	Student
Activities, 	both bargaining unit positions, 	were combined
without 	providing 	for 	clerical 	support. 	Second, 	the 	task 	force
was 	involved with 	implementation of 	secretarial 	help 	for 	a 	new
Dean of 	Instruction.
The 	testimonial 	dispute 	between Tucker 	and 	Petersen 	about
whether 	the 	impact 	on 	bargaining unit 	employees 	which 	flowed
from 	these 	changes 	was 	negotiated 	need 	not 	be 	resolved. 	The
only purpose 	here 	is 	to 	show the 	extent 	of 	CEC 	involvement 	on
the 	task 	force, 	the vehicle 	through which changes 	impacting 	on
bargaining unit 	employees 	were 	conceived 	and 	implemented.
Yet 	another 	area 	where 	CEC 	represented 	classified 	employees
was 	at administrative 	staff 	meetings. 	These meetings 	involved
wide-ranging discussions 	about a variety of 	subjects, 	some 	of
which included negotiable 	items, 	i.e. 	personnel, 	program
review, 	sabbatical 	leaves, 	etc. 	CEC was 	invited 	by the
District 	to 	attend 	these meetings, 	which were 	held 	each Monday
afternoon. 	Kirk was 	the 	CEC 	representative who 	attended 	most
41

of 	these meetings, 	and 	he 	received 	release 	time 	for 	doing so.
Although 	it 	appears 	that 	Kirk's 	actual 	participation at 	these
meetings was 	limited, 	he 	nevertheless 	attended 	in an official
capacity as 	an officer 	of 	the CEC. 	and. 	since CEC counted among
its 	constituents 	all 	classified employees, 	it must 	be 	concluded
that 	he 	attended 	as 	a 	representative 	of 	these 	employees. 	The
fact 	that 	his 	actual 	participation was 	limited 	suggests 	only a
lesser 	degree of 	representation. 	It 	does 	not diminish his
overall 	status 	as 	a 	representative.
Program 	review is 	the 	last 	major 	area where 	CEC 	acted 	in a
representative 	capacity. 	Before 	addressing 	the 	degree 	of 	CEC
involvement 	in this 	area, 	however, 	it must 	be 	emphasized 	that
the 	program 	review process 	carried with 	it 	the 	potential 	for
the 	heaviest 	and 	the 	most 	serious 	impact 	on 	the 	terms 	and
conditions 	of 	employment 	of 	classified 	employees. 	According 	to
Dr. 	Petersen. 	this 	potential 	for 	significant personnel 	actions
was 	clearly understood 	from the 	outset. 	In fact, 	some 	of 	the
recommendations 	sent 	by 	the 	program review committee 	to 	the
Board 	of 	Trustees 	involved 	such major 	items 	as 	reinstatement
rights, 	reduction in hours, 	eliminations of positions, 	purchase
of new equipment, 	layoffs, 	hiring, 	and reduction in force
through 	resignation.24
24obviously several 	of 	these 	items 	are 	subject 	to
decision and/or 	effects 	negotiations. 	For 	purposes 	of
determining whether 	CEC 	served 	the 	program 	review process 	in 	a
representative 	capacity, 	it 	is unnecessary to determine which
items 	are negotiable or. 	in fact, 	if 	any of 	these 	items were
negotiated 	with 	CSEA.
42

The 	record with 	regard 	to 	CEC 	participation 	in 	the 	program
review process 	is 	somewhat 	fuzzy. 	While 	it 	is 	clear 	that 	some
CEC 	representatives 	attended 	pre-November 	1984 	meetings,
evidence 	about 	their 	degree 	of 	participation at 	these 	early-
meetings, 	as well as at the 	later meetings, 	is 	sketchy. 	The
only exception 	is 	the 	final 	written 	recommendation 	to 	the Board
of Trustees, 	submitted 	in February 1985, 	which shows 	that Cathy
Dellabalma was 	a member 	of 	the 	committee at 	that 	time.
However, 	the 	charging party 	introduced 	no 	concrete 	evidence 	to
establish her 	degree 	of 	participation. 	It 	can only be
presumed, 	therefore, 	that 	as 	a 	committee member 	she
participated 	to any significant degree. 	Thus, 	if 	one were
required 	to 	make 	a 	finding 	regarding CEC 	participation 	in 	the
program 	review process 	which 	occurred 	from 	September 	1984 	to
February 1985. 	it might very well 	be adverse to 	the 	charging
party due 	to 	lack of 	evidence.
However, 	Dr. 	Petersen forth rightly testified 	that 	the
program review process 	continues 	in 	the District, 	although on a
more 	limited 	scale, 	and CEC 	regularly participates 	as 	a 	member
of 	the Academic Services Council/Student 	Services Council, 	as
well 	as 	the Steering Committee. 	Thus, 	CEC continues 	to enjoy
full 	participation 	in a 	major 	District 	governance 	organization
and, 	therefore, 	has 	the opportunity to provide 	input which
could 	conceivably 	lead 	to 	significant 	changes 	in
employment- 	related 	matters.
The 	obvious 	question 	to 	be 	answered 	at 	this 	point 	is
43

whether 	these 	activities 	constituted 	representation 	of
employees 	in their 	relations with 	the 	employer. 	Section 2(5)
of 	the NLRA 	includes 	in 	its 	definition 	of 	"labor 	organization"
any "employee representative committee or plan 	. 	. 	. 	which
exists 	for 	the purpose, 	in whole 	or 	in part, 	of dealing with
employers concerning grievances, 	labor disputes, 	wages, 	rates
of 	pay. 	hours 	of 	employment, 	or 	conditions 	of work." 	(emphasis
added.) 	The Court 	pointed 	out 	in NLRB v. 	Cabot Carbon Co.
supra, 	that 	nothing 	in that 	section 	indicates 	the 	broad 	term
"dealing with" 	is 	to 	be 	read 	as 	synonymous with 	"bargaining
with." 	Similarly. 	I 	know of 	no persuasive 	argument which
compels 	the 	conclusion 	that 	the 	term 	"representing" 	in
section 	3540.l(d) 	is 	synonymous with negotiating or 	grievance
handling. 	It must 	be assumed 	that 	the 	legislature, 	in enacting
the EERA, 	"did 	not 	purport 	to 	invent 	anew the 	law of 	labor
relations." 	San Lorenzo Education Association 	(1982) 	Cal.3d
841, 	187 Cal.Rptr. 	432. 	Thus, 	even if CEC never acted to
negotiate with the employer 	or 	to 	process 	grievances, 	it 	is
nevertheless 	found 	to 	be 	an 	employee 	organization 	because 	it
represented 	employees 	in 	employment-related 	matters. 	Oak Grove
School District, 	supra. 	PERB Decision No. 	582. 	In this same
vein, 	it 	is noted that 	the Court 	in Cabot Carbon Co. 	rejected
the argument, 	offered here 	by the District, 	that 	the 	entity 	in
question was 	not 	a 	labor 	organization 	because 	the 	authority 	to
make 	final 	decisions 	at 	all 	times 	rested with 	the 	employer.
To 	summarize, 	I 	find 	that 	the CEC was 	a 	highly structured
44

employee 	organization which 	openly 	claimed 	as 	constituents 	all
classified 	employees. 	On behalf 	of 	these employees, 	and with
the District's 	approval 	and 	assistance, 	it 	acted 	in an official
representative 	capacity before 	the Board 	of 	Trustees, 	as well
as 	in the areas 	of 	program review. 	AOTF, 	administrative staff
meetings, 	budget of 	potential 	extra 	income, 	and. 	to a 	limited
degree, 	the 	hiring/screening process. 	Some 	of 	these 	activities
involved 	negotiable matters; 	others 	involved 	employment 	related
matters 	which were 	not 	necessarily within 	the 	scope 	of
bargaining. 	See Oak Grove 	School District, 	supra. 	Let us 	now
turn 	to 	some of 	the District's 	defenses.
The District, 	both at 	the hearing and 	in its Brief, 	relied
heavily on Los Angeles 	Unified 	School 	District, 	supra 	PERB
Decision No. 	285, 	in arguing that CEC 	is 	not an employee
organization. 	The District 	claims 	that 	the Board, 	affirming
the 	hearing 	officer's 	decision 	in Los 	Angeles 	Unified 	School
District, 	found 	that 	an employee 	committee which forms 	to
discuss with and 	suggest 	to 	the 	employer 	a way of 	improving
work 	procedures 	and 	conditions 	is 	not 	an 	employee 	organization
under 	the EERA. 	The District's 	reliance 	on this 	case 	is
misplaced. 	While 	it 	is 	true 	that 	the 	hearing officer, 	based 	on
the 	limited 	record 	in that 	case, 	reached 	the 	conclusion urged
by the District, 	it 	is 	not 	true 	that 	the Board 	adopted 	the
hearing officer's 	decision. 	The Board's 	opinion 	in Los Angeles
Unified 	School 	District 	reveals 	that 	the 	District 	did 	not
45

except 	to 	the 	favorable 	finding 	that 	it 	did 	not 	violate
Section 	3543.5(d). 	The District 	appealed 	only the 	conclusion
of 	the 	hearing 	officer 	regarding 	Section 	3543.5(c) 	and 	(b)
violations. 	These 	involved 	separate 	issues. 	The Board 	has
generally declined 	to 	raise 	sua 	sponte matters 	to which
exceptions 	have 	not 	been 	taken. 	Nevada 	City School 	District
(1981) 	PERB Decision No. 	185. 	Since 	the Section 3543.5(d)
violation was 	not 	before 	the Board, 	the Board 	did 	not 	expressly
address 	this 	alleged violation. 	Thus, 	the Section 	3543.5(d)
violation holding 	in Los 	Angeles 	Unified 	School 	District 	is
merely the 	opinion of 	a 	hearing officer. 	It 	is 	a 	fundamental
point 	of 	PERB 	practice 	that 	hearing officer 	decisions 	are 	not
precedential 	except 	to 	the 	parties 	to 	the 	particular 	case.
PERB Regulation 	32215.
The 	District's 	reliance 	on Healdsburg Union High 	School
District 	(1984) 	PERB Decision No. 	375 	is 	similarly misplaced.
In 	that 	case 	the Board 	found 	nonnegotiable 	a union 	proposal
prohibiting 	the 	formation of 	advisory 	committees. 	The 	proposal
was 	objectionable because 	it was 	overbroad, 	and, 	as drafted,
could 	have 	been 	interpreted 	as 	barring 	the 	formation 	of 	a
committee which 	" 	'concerns' 	bargaining unit members 	but which
has 	no 	relation to 	the 	subjects 	of 	bargaining enumerated 	in
section 	3543.2." 	Even 	if 	one 	concludes 	from this 	holding 	that
employer 	formation 	of 	advisory 	committees 	of 	bargaining 	unit
employees which do 	not 	deal 	with negotiable 	matters 	is
permissible, 	Healdsburg 	is 	not dispositive 	of 	the 	issues
46

presented here 	for 	at 	least 	three 	reasons. 	First, 	the CEC
participated 	in areas which 	included 	negotiable 	items. 	Second.
Healdsburg 	presented 	only 	the 	issue 	of 	negotiability 	and 	did
not 	address 	the 	completely different 	issue 	of whether, 	under
the 	totality of 	the 	circumstances 	as 	presented 	by 	this 	case,
the 	employer's 	conduct 	"tends" 	to 	influence 	employee 	choice 	by
violation of 	section 3543.5(d). 	See 	Santa Monica Community
College District, 	infra. 	Third. 	Healdsburg doesn't 	resolve 	the
question 	of 	whether 	the 	entity was 	an 	"employee 	organization,"
(even if 	it was an 	"Advisory Committee").
The District 	next 	points 	out 	that 	the CEC 	is 	similar 	to 	the
Academic 	Senate, 	including a 	constitution which 	is 	patterned
after 	that 	of 	the Academic 	Senate. 	Since 	the Academic 	Senate
is 	not viewed 	as 	an 	employee 	organization, 	neither 	should CEC,
according 	to 	the District. 	The 	status 	of 	the Academic 	Senate
does 	little 	to 	resolve 	the 	issues 	presented 	by this 	case. 	In
the 	final 	analysis 	the 	section 	3543.5(d) 	allegations 	must 	be
resolved 	by 	evaluating 	the 	evidence 	with 	respect 	to 	the
relationship 	between CEC 	and 	the District. 	The 	law governing
academic 	senates 	has 	nothing 	to 	do with classified 	employees.
See 	section 3540; 	Government Code 	section 72292; 	and California
Administrative Code, 	Title 5. 	section 35200 et. 	seq.
The District 	argues 	alternatively 	that 	even 	assuming 	CEC 	is
found 	to 	be 	an employee organization, 	an employer 	is 	free 	to
deal 	with 	any 	employee 	organization 	other 	than 	the 	exclusive
representative 	on matters 	outside 	the 	scope 	of 	representation;
47

that 	is 	to 	say 	that 	an exclusive 	representative 	has 	exclusive
rights 	only 	in 	the 	areas 	of 	collective 	bargaining 	and 	grievance
handling. 	According to 	the District, 	an employer 	is 	free 	to
engage 	in the 	kind 	of 	activities 	at 	issue 	here, 	provided 	it
ultimately 	satisfies 	its 	obligation 	to 	negotiate with 	the
exclusive 	representative 	about 	matters 	within 	the 	scope. 	The
District 	stresses 	that 	CEC 	acted 	as 	a 	mere vehicle 	for
communication 	between 	the 	District 	and 	the 	classified
employees, 	while 	all 	decision-making authority remained 	in 	the
hands 	of 	the Board 	of 	Trustees 	or 	appropriate District 	managers.
To 	support 	its 	argument, 	the District 	points 	to
Section 	3543.2, 	and 	claims 	that 	provision gives 	the employer
the 	"absolute 	right" 	to 	consult with 	"any employee
organization" 	or 	any matter 	outside 	of 	the 	scope 	of 	the
representation. 	The 	relevant 	part 	of 	Section 	3543.2 	reads 	as
follows:
All 	matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school 	employer 	and
may not 	be 	a 	subject 	of 	meeting and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right 	of 	the
public 	school 	employer 	to 	consult with 	any
employees 	or 	employee 	organization 	on any
matter 	outside 	the 	scope 	of 	representation.
From a 	public 	policy point 	of 	view, 	continues 	the District,
this 	language 	represents 	a 	"sensible 	and 	explainable" 	choice 	on
the 	part 	of 	the 	legislature 	to 	enact 	a 	law which does 	not
restrain 	the 	ability 	of 	a 	locally elected 	body 	to 	function
democratically 	by 	receiving 	points 	of 	view from all 	concerned
48

in matters 	outside 	the scope. 	To do 	otherwise, 	says 	the
District, 	would 	be unthinkable 	and 	attack 	the very foundation
of 	representative 	government.
It 	is 	a 	basic 	principle 	of 	statutory 	construction 	that
statutes 	are 	to 	be 	read 	as 	a whole 	so 	that 	the 	entire 	law is
given meaning. 	San Lorenzo Education Association v. 	Wilson.
supra. 	Additionally, 	the 	plain meaning should 	be given to
statutory 	language. 	University of 	California 	(Student 	Body
Presidents' 	Council) 	(1982) PERB Decision No. 	253-H. 	p. 	10.
Application of 	these 	principles 	here 	leads 	to 	the 	following
conclusions. 	While 	it 	is 	true 	that 	Section 3543.2 	provides
that 	the 	employer 	may consult with any employees 	or 	employee
organizations 	about matters 	outside 	of 	scope, 	reading the
statute 	as 	a whole 	reveals 	that 	there 	are 	limitations 	on 	this
provision. 	Section 3543.l(a) 	provides 	that 	employee
organizations 	have 	the 	right 	to 	represent 	their 	members 	in
their 	employment 	relations with public 	school 	employers, 	except
that 	once 	an 	exclusive 	representative 	is 	certified 	or
recognized 	"only 	that 	employee 	organization 	may 	represent 	that
unit 	in 	their 	employment 	relations 	with 	the 	public 	school
employer." 	This 	limitation on rival 	unions 	plainly 	is 	not
limited 	to 	negotiable 	items. 	The 	clear 	statutory 	language 	bars
rival unions, 	where an exclusive representative exists, 	from
representing unit 	employees 	in 	the 	much 	broader 	arena 	of
"employment 	relations." 	Adoption of 	the District 	construction
of 	Section 	3543.2 would 	ignore 	this 	plain language, 	and. 	in
49

doing so. 	render 	the 	language 	in Section 3543.l(a) 	meaningless.
More 	significantly, 	the District's 	interpretation would
undermine 	the 	principle 	of 	exclusive 	representation upon which
the 	entire 	labor 	policy underlying EERA. 	SEERA and 	HEERA 	(and.
for 	that matter, 	the NLRA) 	is 	based. 	In Hanford Joint Union
High School District 	(1978) 	PERB Decision No. 	58. 	a minority
union filed 	a 	refusal 	to 	bargain 	charge 	against 	the District
for 	unilaterally 	implementing 	a 	school 	calendar. 	Between 	the
implementation date 	and 	the 	time 	the 	charge was 	filed, 	an
exclusive 	representative was 	recognized 	by 	the District. 	The
Board 	held 	that whatever 	"representational 	rights" 	the 	rival
union may have 	had 	prior 	to 	the 	establishment 	of 	the 	exclusive
representative, 	it was 	ousted 	of 	those 	rights which obtained
solely 	to 	the 	exclusive 	representative.
Such a 	conclusion 	is 	consistent with the 	principle 	of
exclusive 	representation set 	forth 	in section 	3540 	of 	the
EERA which 	states 	the 	legislative 	purpose 	to 	be 	"to 	promote
the 	improvement 	of 	personnel 	management 	and 	employer-
employee 	relations 	in 	the 	State 	of 	California 	by providing
a 	uniform basis 	for 	recognizing 	the 	right 	of 	public 	school
employees to" 	. 	. 	. 	select one employee organization as
the 	exclusive 	representative- of 	the 	employees 	in an
appropriate unit." 	(Emphasis 	added.)
To 	hold 	that 	the Federation 	in 	this 	instance 	could
pursue 	a 	representation-oriented 	charge 	after 	the
establishment 	of 	the Association as 	the 	exclusive
representative would 	tend 	to undermine 	the 	right 	of 	the
employees 	to 	negotiate 	collectively 	through a
representative 	of 	their 	own choice. 	Furthermore, 	the need
for 	stability 	in 	employee 	organizations 	precludes
encouraging 	the 	rivalry 	among 	various 	employee
organizations 	that would 	be 	the 	inevitable 	consequence 	of 	a
requirement 	that 	the 	employer 	deal 	with an 	organization
other 	than the 	exclusive 	representative. 	As 	the United
States 	Supreme Court 	has 	said, 	the obligation of 	dealing
with 	the 	exclusive 	representative 	"exacts 	the 	negative 	duty
50

to 	treat with 	no 	other." 	Hanford 	Joint Union High 	School
District, 	supra, 	p. 	7; 	see also Mount Diablo Unified School
District 	(1977) 	PERB Decision No. 	44.
Adoption 	of 	the 	District 	interpretation of 	the 	relevant
statutory 	language would 	lead 	inescapably 	to 	the 	pitfalls 	cited
by 	the Board 	in Hanford. 	The 	stability which 	flows 	from
exclusivity would 	be undermined. 	In this 	case, 	CEC would 	at
least 	share 	the 	role 	of 	classified 	employee 	representative with
CSEA 	in 	such vital 	employment-related 	areas 	as, 	for 	example,
the 	program 	review and 	the 	Administrative 	Organization 	Task
Force, 	thus 	fostering rivalry among 	employee 	organizations.25
Statutes 	should 	be 	interpreted 	so 	as 	to 	effectuate 	the
purposes 	of 	the Act as 	a whole. 	Regents 	of 	the University of
California, 	supra. 	PERB Decision No. 	253-H. 	p. 	11.
Section 	3540 	clearly 	states 	the 	purpose 	of 	EERA.
It 	is 	the purpose 	of 	this 	chapter 	to promote 	the
improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within 	the 	public 	school
systems 	in the 	State 	of 	California 	by providing a
uniform basis 	for 	recognizing 	the 	right 	of 	public
school 	employees 	to 	join organizations 	of 	their 	own
25on a practical 	level, 	one 	need 	not 	strain to envision
situations 	where 	the District's 	interpretation 	of 	the 	law,
carried 	to 	its 	logical 	conclusion, 	would 	create utter 	havoc 	in
local 	labor 	relations. 	For 	example, 	is 	the District 	free under
its 	interpretation of 	section 3543.2 	to 	"consult" 	with a
minority union about 	the decision to 	lay off 	employees, 	a
non-negotiable 	subject, 	while 	actually negotiating with 	the
exclusive 	representative about 	the 	effects 	of 	such decision, 	a
negotiable 	area.
The Board 	has 	held 	repeatedly 	that 	the 	decision 	to 	lay 	off
employees 	is 	not 	negotiable 	but 	the 	effects 	of 	such a 	decision
are. 	See 	e.g. 	Newman-Crows 	Landing Unified 	School District
(1982) 	PERB Decision No. 	223.
51

choice, 	to 	be 	represented 	by such organizations 	in
their 	professional 	and 	employment 	relationships 	with
public 	school 	employers, 	to 	select one 	employee
organization as 	the 	exclusive 	representative 	of 	the
employees 	in an appropriate unit, 	and 	to 	afford
certificated 	employees 	a 	voice 	in the 	formulation of
educational 	policy.
Adoption of 	the District's 	construction of 	sections 	3543.2.
3543.l(a) 	and 	3540.l(d) 	would undermine 	the principle of
exclusivity and 	run afoul 	of 	the 	clear 	purpose 	of 	the Act. 	For
these 	reasons, 	the District's 	arguments 	referred 	to 	above are
rejected.
This 	conclusion 	is 	not 	inconsistent with 	the 	general 	notion
advanced 	by the District 	that, 	under 	some 	circumstances, 	an
employer 	is 	free 	to 	communicate 	directly with 	individual
employees 	or 	groups 	of 	employees 	on 	employment-related 	matters
without 	running 	afoul 	of 	its 	obligations 	under 	the Act. 	See
e.g. 	NLRB v. 	Scott and Fetzer Co. 	(CA 6 	1982) 	691 F2d 288.
[111 LRRM 2673] 	and 	cases 	cited 	therein. 	Such circumstances,
however, 	are not present here. 	The organization of 	CEC, 	its
on-going 	involvement 	in 	employment-related 	matters, 	and 	the
assistance 	provided 	by 	the District 	(more 	fully discussed
below) 	all 	point 	to 	the 	conclusion 	that 	the District 	acted
unlawfully 	in 	its 	overall 	relationship 	to 	the CEC.
The 3543.5(d) Violation:
Section 	3543.5(d) 	provides 	that 	it 	shall 	be an unfair
practice 	to
(d) 	Dominate 	or 	interfere with the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute financial or
52

other 	support 	to 	it. 	or 	in any way encourage
employees 	to 	join any 	organization 	in
preference 	to another.
The 	threshold 	test 	for 	determining whether 	an 	employer 	has
violated 	section 	3543.5(d) 	is 	found 	in Santa Monica Community
College District 	(1979) 	PERB Decision No. 	103.
This 	section 	imposes 	on 	employers 	an unqualified
requirement of 	strict neutrality. 	There 	is 	no
indication 	in 	the 	statutory 	language 	that 	the
Legislature meant 	to 	prohibit 	only 	those 	acts 	which
were 	intended 	to 	impact 	on the employees' 	free
choice. 	The 	simple 	threshold 	test 	of 	section 	3543.5(d)
is whether 	the 	employer's 	conduct 	tends 	to 	influence
that 	choice 	or 	provide 	stimulus 	in one 	direction or
the other. 	Id., 	p. 	22 	(Emphasis in original)
In addition, 	due 	to 	the 	limited PERB case 	law in the
domination/support 	areas, 	guidance must 	be 	taken from the
decisions 	of 	the NLRB 	and 	the Federal 	courts when 	resolving
section 3543.5(d) 	allegations.2 6
As 	the District points 	out 	in 	its 	brief, 	the 	line 	between
employer 	domination or 	interference, 	which the Act 	prohibits,
and mere 	cooperation, 	which the Act permits, 	is 	often fuzzy.
There 	is 	no 	per 	se 	rule which can be used 	to 	resolve
26section 3543.5(d) 	is 	patterned after 	section 8(a)(2) 	of
the NLRA, 	which makes 	it unlawful 	for 	an employer 	to 	"dominate
or 	interfere with 	the 	formation or 	administration of 	any 	labor
organization or 	contribute 	financial 	or 	other 	support 	to 	it.
The 	construction of 	similar 	or 	identical 	provisions 	of 	the
NLRA, 	as amended. 	23 U.S.C. 	151 et seq., 	may be used to guide
interpretation of 	the EERA. 	See. 	e.g., 	San Diego Teachers
Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13, 	Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608. 	616.
Compare section 3543.5(d) 	of 	the Act with section 8(a) 	(2) 	of
the NLRA.
-
53

allegations 	of 	unlawful 	domination 	or 	assistance. 	No 	single
act 	determines whether 	an employer 	has 	dominated, 	supported 	or
otherwise 	interfered 	with an 	employee 	organization. 	In 	the
private 	sector 	the NLRB 	and 	the 	reviewing 	courts 	have 	looked 	to
a 	totality of 	the 	circumstances 	in 	each 	particular 	case 	to
decide section 8(a) 	(2) 	allegations. 	See Classic 	Industries.
Inc. 	V. 	NLRB 	(CA 1 1981) 	667 F.2d 205; 	[109 LRRM 2057]. 	Also,
see generally Morris. 	Developing Labor Law, 	Vol. 	I.
pp. 	267-305. 	Taking this approach in the present case, 	one can
readily 	identify 	several 	factors 	identical 	to 	those 	found 	in
decisions 	under 	the NLRA where 	the NLRB 	or 	the 	reviewing 	court
found 	unlawful 	employer 	conduct.
As 	a 	general 	rule, 	the District's 	pervasive 	involvement 	in
the 	formation and 	administration 	of 	CEC 	suggests 	unlawful
conduct. 	It 	has 	been held 	repeatedly 	that 	employer
participation 	in 	forming 	an 	employee 	organization 	for 	its
employees 	is 	evidence 	of 	unlawful 	conduct under 	section 	8(a)
(2). 	Ace Manufacturing Co. 	(1978) 	235 NLRB 1023. 	[98 LRRM
1462]; 	S-W Motor Lines 	(1978) 	236 NLRB 938, 	[98 LRRM 1488];
Alta Bates Hospital 	(1976) 	226 NLRB 485, 	[93 LRRM 1288];
Antelope Valley Community College District 	(1979) 	PERB
Decision No. 	97.
It 	is 	clear 	that Dr. 	Weichert had 	the 	idea 	to 	form CEC,
based 	on 	earlier 	studies 	that 	showed 	low morale 	and 	lack 	of
communication 	in 	the 	classified 	employee 	ranks. 	He 	took 	the
54

first 	steps 	of 	presenting 	the 	idea 	to 	the Board 	of 	Trustees,
and 	then 	to 	the 	entire 	classified 	staff 	at 	an 	orientation
meeting. 	There 	is 	no 	evidence 	that 	any 	rank and 	file 	employees
contributed 	in any 	significant way 	to 	this 	decision.
The 	presence 	of 	employer 	supervisory personnel 	at 	union
organizational 	meetings 	is 	also 	a 	significant 	factor 	which
cannot 	be 	ignored 	in determining 	the 	role 	of 	the 	employer 	in
the 	formation of 	an employee 	organization. 	See M-W Education
Corp. 	(1976) 	223 NLRB 495. 	[92 LRRM 1274]. 	In addition to
Dr. 	Weichert. 	other 	management 	officials 	attended 	the 	early CEC
meetings where 	fundamental 	organizational 	issues 	(i.e.
constitution and by-laws, 	officers, 	etc) were discussed.
Although, 	Dr. 	Weichert's 	participation at CEC meetings
diminished 	as 	time when on. 	this 	does 	not 	erase his 	deep
involvement 	at 	the 	crucial 	formative 	stages, 	nor 	does 	it
eliminate 	the 	ongoing 	involvement 	(to 	be 	more 	fully discussed
below) 	in the Council 	of 	other managerial 	employees. 	This 	kind
of 	participation 	leaves 	the 	obvious 	impression 	that 	high
ranking management 	employees 	favored 	CEC 	and 	its 	activities 	on
campus. 	The District's 	role 	here was 	not unlike 	the 	employer's
role 	in 	forming 	a 	"Teachers 	Forum" 	which 	the Board 	found
unlawful 	in Oak Grove School District, 	supra.
After 	the 	CEC was 	formed. 	District 	representatives
conducted 	a 	secret 	ballot 	election, 	after 	holding meetings 	with
employees 	to 	announce 	its 	(the District's) 	detailed 	plans 	for
implementation. 	Holding 	meetings 	with 	heavy management
55

participation 	and 	conducting 	elections 	(where 	managerial
employees 	voted) 	by use 	of 	employer 	time 	and 	resources 	has 	been
viewed 	by the NLRB 	as 	evidence 	of 	unlawful 	conduct. 	St.
Vincent's Hospital 	(1979) 	244 NLRB 84. 	[102 LRRM 1196]; 	NLRB v.
Thompson Ramo Wooldridqe. 	supra. 	305 F.2d 	807.
The 	CEC. 	which purported 	to 	represent 	all 	classified
employees, 	had 	as members 	of 	its 	governing board 	several
management 	employees. 	During 	the 	first year Dellabalma. 	Bailey
and 	Connors 	were 	CEC 	representatives 	from 	the 	management
staff. 	During 	the 	second year 	Dellabalma 	and 	Reynolds
represented 	the management 	staff 	on the 	CEC. 	Given 	the 	size 	of
the Council 	(only seven members), 	it must 	be 	inferred 	that
these 	employees 	participated 	in CEC 	meetings 	and 	played 	at
least 	some 	role 	in CEC deliberations 	on all matters, 	including
those 	areas 	of 	representational 	activity described 	above.
Especially noteworthy 	in 	this 	regard 	is 	the 	participation
of Dellabalma. 	the personnel 	officer. 	While she was 	on the
Council, 	it must 	be presumed 	that Dellabalma played 	a 	central
role 	in 	the 	formation of 	District 	personnel 	policies 	which
covered 	employment-related 	matters. 	At 	least 	one 	clear 	message
delivered 	to 	bargaining unit 	employees 	from this 	quite 	open
arrangement 	is 	that CEC. 	because one of 	its 	officers 	had a
direct 	pipeline 	to District 	policy makers, 	could 	produce
quicker 	results. 	This 	is 	the 	kind 	of 	arrangement which 	"tends"
to 	influence 	employees 	in 	their 	preference 	for 	one 	organization
or another, 	in violation of section 3543.5(d), 	regardless of
56

the District's 	intention, 	or whether 	CEC ever 	benefited 	as 	a
result 	of Dellabalma's 	connections. 	Oak Grove 	School 	District.
supra, 	p. 	18-19; 	Santa Monica CCD, 	supra, 	p. 	22. 	Furthermore,
the 	participation by a managerial 	employee 	as 	an agent 	or
officer 	in 	an employee 	organization presents 	such 	an 	obvious
impediment 	to union independence, 	it has 	been viewed as
evidence 	of 	unlawful 	conduct 	by the NLRB. 	Vincent's Hospital.
supra; 	Alta Bates Hospital, 	supra.
The District's 	conduct 	also 	runs 	afoul 	of 	that 	provision 	in
Section 	3543.5(d) 	which makes 	it unlawful 	for 	an employer 	to
"contribute 	financial 	or 	other 	support" 	to 	an employee
organization. 	Most 	important 	in this 	area 	is 	the 	financial
grant, 	at Dr. 	Weichert's suggestion, 	to operate. 	A revolving
account 	still 	exists 	for 	CEC 	benefit. 	It 	appears 	that 	the
money was 	used 	primarily 	to 	finance 	social 	and 	recreational
activities, 	and 	the 	account was 	always 	replenished 	by CEC with
profits 	from these 	events. 	However, 	the 	limited 	nature 	of 	this
grant 	does 	not 	detract 	from the 	fact 	that 	CEC was 	financially
assisted 	by the District. 	Plainly, 	this 	is 	impermissible
activity under 	Section 3543.5(d). 	NLRB v. 	Thompson Ramo
Wooldridqe. 	supra; 	Azuza Unified School District 	(1977) 	PERB
Dec. No. 38.
There 	are 	several 	additional 	areas 	where 	the District
provided 	"other 	support" 	to 	CEC. 	Each has 	been viewed 	as
unlawful 	assistance 	by either 	the NLRB 	or 	the 	federal 	courts.
57

First 	is 	the 	authorization of 	release 	time. 	Section 3543.l(b)
provides 	that 	a 	reasonable 	amount 	of 	release 	time 	be 	given only
to 	a 	reasonable 	number 	of 	representatives 	of 	the 	exclusive
representative 	and 	only 	for 	negotiations 	and 	grievance
processing. 	Indeed, 	this 	is 	a 	negotiable matter under 	the
EERA. 	Anaheim Union High School District 	(1981) 	PERB
Decision No. 	177. 	Yet CEC representatives, 	especially Kirk,
were 	granted 	significant 	blocks 	of 	time 	to 	participate 	in
social 	events, 	as well as 	in activities which I 	have found to
be 	representational 	in nature. 	CEC 	representatives 	always
cleared 	the use 	of 	such 	time with their 	supervisors, 	and 	it
appears 	that 	granting 	it 	did 	not 	disrupt 	the work 	flow.
Nevertheless, 	this 	evidence 	does 	not 	diminish 	the 	fact 	that 	the
District 	supported 	CEC 	participation 	in 	these 	areas 	by 	a 	grant
of 	release 	time. 	The Board 	looks with disfavor 	upon granting
release 	time 	for 	such activities. 	See 	e.g. 	Oak Grove 	School
District, supra.
As 	mentioned 	earlier. 	CEC elections were 	conducted 	by
District 	representatives 	using District 	time 	and 	resources.
CEC 	almost 	always 	used 	District 	stationery 	and 	copying
facilities, 	and 	the District 	occasionally distributed 	CEC
questionnaires to 	employees. 	Such 	conduct 	has 	been found 	to
exceed 	the 	bounds 	of 	permissible 	cooperation and 	constitute
unlawful 	assistance 	in violation of 	Section 8(a)(2) 	of 	the
58

National 	Labor 	Relations 	Act.27 Kaiser 	Foundation Hospitals
(1976) 	223 NLRB 322. 	[91 LRRM 1523]; 	see also Clovis Unified
School District 	(1984) 	PERB Decision No. 	389. 	where PERB found
such aid. 	provided 	in the 	face 	of 	a 	pending question concerning
representation, 	improper. 	Providing rooms 	for 	employee
organization meetings, 	as 	the District did for CEC, 	has 	also
been viewed 	as 	impermissible assistance. 	St. 	Vincent's
Hospital, 	supra. 	While any of 	these forms 	of 	assistance,
standing alone, 	may not 	rise 	to 	the 	level 	of unlawful 	conduct,
when 	considered 	in 	their 	totality 	they present 	a 	pattern 	of
employer 	assistance which 	cannot 	realistically 	be 	described 	as
mere 	cooperation. 	See NLRB v. 	Thompson Ramo Wooldridqe. 	supra.
Other 	District 	conduct 	similarly 	runs 	afoul 	of 	the
prohibition against 	engaging 	in conduct which 	"tends" 	to
influence 	employee 	choice. 	CEC was 	given a 	preferred 	spot 	on
the Board 	of 	Trustees 	agenda, 	while 	the District 	refused 	a
similar 	spot 	to 	CSEA. 	CEC 	representatives 	were 	given high
visibility roles 	in program review, 	the Academic 	Services
Council, 	the Student Services Council. 	AOTF. 	administrative
27The District's 	argument 	that 	CEC 	is 	entitled 	to 	use 	the
campus 	mail 	under 	section 3543.l(b) 	misconstrues 	the 	statute.
While 	employee 	organizations 	may 	be 	entitled 	to 	use 	the 	mail
system, 	this 	provision of 	the Act 	does 	not 	contemplate 	the
employer 	actually 	conducting 	a 	mailing 	for 	an 	employee
organization by providing, 	among other 	things, 	secretarial 	help
or 	stationery. 	See Richmond Unified 	School 	District 	(1979)
PERB Decision No. 	99.
59

staff 	meetings, 	the 	extra money question, 	and 	hiring/screening
committees. 	Release 	time was 	provided 	to 	CEC 	representatives
to engage 	in all 	of 	these activities. 	By contrast, 	CSEA's 	role
was 	limited 	to 	some 	involvement 	in 	the 	initial 	stages 	of
program review and 	in the 	extra 	money question; 	and. 	CSEA had 	a
less 	desirable 	slot 	on the 	agenda 	at Board 	of 	Trustees
meetings. 	All 	of 	these areas 	have 	been more fully discussed
above, 	and 	the 	role 	of CEC need not 	be 	repeated 	here. 	Suffice
it 	to 	say that 	the District's 	conduct 	in creating, 	supporting,
and 	permitting 	CEC 	to 	become 	deeply 	involved 	in 	these 	areas
placed 	that 	employee 	organization 	in a 	favored 	position. 	The
competition between CEC and CSEA was 	therefore very real. 	See
Sacramento 	City Unified 	School 	District 	(1982) 	PERB
Decision No. 	214; 	Oak Grove School District, 	supra. 	It 	is the
kind 	of 	conduct which 	"tends" 	to 	influence 	employee 	choice,
under 	the 	teachings 	of 	Santa Monica 	Community College District,
even 	if 	the Council was 	not 	seeking to 	represent 	employees 	on
an exclusive 	basis.
I 	recognize 	the 	fact 	that 	the District's 	actions 	in
creating 	the 	CEC were undertaken with 	the 	best 	of 	intentions.
The District was 	not 	in my view motivated 	by any desire 	to
undermine 	the 	exclusive 	representative. 	Its 	actions were
premised 	on 	the 	belief 	that 	creation 	of 	the 	CEC would 	improve
communication 	and 	morale 	among 	classified 	employees 	in 	the
District. 	The ultimate 	goal was 	to 	create a more 	efficient
operation. 	Nevertheless, 	it 	cannot 	be 	ignored that
60

S e c t i o n 	3 5 4 3 . 5 ( d ) 	u n q u a l i f i e d l y 	f o r b i d s 	u n l a w f u l 	s u p p o r t ,
i n t e r f e r e n c e 	and 	the 	k i n d s 	of 	a c t i o n s 	t a k e n 	by 	the 	D i s t r i c t
w h i c h 	o t h e r w i s e 	tend 	t o 	i n f l u e n c e 	e m p l o y e e 	c h o i c e , 	b e 	t h e y
b e n e v o l e n t 	o r 	m a l e v o l e n t . 	See 	O a k 	G r o v e 	S c h o o l 	D i s t r i c t .
s u p r a ; 	Santa 	M o n i c a 	C o m m u n i t y 	C o l l e g e 	D i s t r i c t , 	s u p r a ; 	A l t a
B a t e s 	H o s p i t a l , 	supra 2 8
C O N C L U S I O N
B a s e d 	on 	the 	f o r e g o i n g , 	it 	is 	c o n c l u d e d 	that 	the 	D i s t r i c t
v i o l a t e d 	S e c t i o n 	3 5 4 3 . 5 ( d ) . 	B y 	its 	c o n d u c t 	the 	D i s t r i c t 	has
c o n c u r r e n t l y 	v i o l a t e d 	S e c t i o n 	3 5 4 3 . 5 ( a ) 	and 	( b ) . 	See 	O a k 	G r o v e
S c h o o l 	D i s t r i c t , 	s u p r a .
R E M E D Y
S e c t i o n 	3 5 4 1 . 5 ( c ) 	p r o v i d e s 	t h a t :
T h e 	board 	shall 	have 	the 	p o w e r 	to 	issue 	a
d e c i s i o n 	and 	order 	d i r e c t i n g 	an 	o f f e n d i n g
p a r t y 	to 	c e a s e 	and 	d e s i s t 	f r o m 	the 	u n f a i r
p r a c t i c e 	and 	to 	take 	such 	a f f i r m a t i v e
a c t i o n , 	i n c l u d i n g 	but 	not 	limited 	to 	the
r e i n s t a t e m e n t 	of 	e m p l o y e e s 	w i t h 	or 	w i t h o u t
back 	p a y , 	as 	w i l l 	e f f e c t u a t e 	the 	p o l i c i e s 	of
this 	c h a p t e r .
2 8 c o m p a r e 	N L R B 	v. 	N o r t h e a s t e r n U n i v e r s i t y 	(CA 	1 	1 9 7 9 ) 	6 0 1
F.2d 	1 2 0 8 , 	[101 	L R R M 	2 7 6 7 ] , 	and 	H e r t z a 	and 	K n o w l e s 	v. 	N L R B 	(CA
9 	1 9 7 4 ) 	503 	F.2d 	6 2 5 . 	[87 	L R R M 2 3 5 0 ] , 	C e r t , 	denied 	433 	U . S .
8 7 5 , 	[90 	L R R M 2 5 5 4 ] , 	w h e r e , 	d e s p i t e 	the 	p r e s e n c e 	o f 	s i m i l a r
i n d i c e s 	of 	u n l a w f u l 	c o n d u c t 	found 	in 	this 	c a s e , 	the 	F i r s t 	and
N i n t h 	C i r c u i t s 	r e s p e c t i v e l y 	refused 	t o 	e n f o r c e 	N L R B 	o r d e r s
f i n d i n g 	d o m i n a t i o n . 	It 	should 	be 	n o t e d , 	h o w e v e r , 	that 	b o t h 	of
t h e s e 	c a s e s 	m a y 	be 	d i s t i n g u i s h e d 	f r o m 	this 	c a s e , 	s i n c e 	the 	idea
to 	form 	the 	o r g a n i z a t i o n 	in 	b o t h 	c a m e 	from 	e m p l o y e e s , 	thus
e v i d e n c i n g 	a 	d e g r e e 	of 	f r e e 	c h o i c e 	w h i c h 	w a s 	not 	p r e s e n t 	h e r e .
See 	a l s o 	N L R B 	v. 	H o m e m a k e r 	S h o p s . 	I n c . 	(CA 	6 	1 9 8 4 ) 	7 2 4 	F.2d
5 3 5 , 	[115- L R R M 2 3 2 1 ] , 	w h e r e 	the 	S i x t h 	C i r c u i t 	r e f u s e d 	t o
e n f o r c e 	an 	N L R B 	f i n d i n g 	that 	a 	B o a r d - c e r t i f i e d 	o r g a n i z a t i o n 	w a s
d o m i n a t e d 	b e c a u s e , 	u n l i k e 	the 	i n s t a n t 	c a s e , 	the 	record 	did 	n o t
s u p p o r t 	the 	c o n c l u s i o n 	that 	e m p l o y e e 	f r e e 	c h o i c e 	had 	b e e n
u n d e r m i n e d .
61

CSEA argues 	that 	the 	CEC 	is 	a 	dominated 	employee 	organization.
Therefore, 	following private 	sector 	precedent, 	CSEA seeks 	the
remedy of disestablishment. 	The District, 	of 	course, 	opposes
such a 	remedy. 	It 	has 	taken 	the 	position 	throughout 	that 	CEC
is 	not an employee organization; 	even 	if CEC 	is 	found 	to 	be an
employee organization, 	the District argues, 	there has 	been no
unlawful 	conduct 	in 	its 	dealings with CEC.
Since 	the District's 	arguments 	have 	been rejected, 	it must
now be 	determined 	if 	the 	complained-of 	conduct 	constitutes 	only
unlawful 	support 	or 	rises 	to 	the 	level 	of 	domination. 	A narrow
and 	often obscure 	line often divides 	these 	two 	categories. 	The
distinction is 	crucial, 	for 	if 	it 	is determined that 	the
District dominated CEC, 	disestablishment 	is 	appropriate; 	if 	the
District merely 	interfered with or 	supported CEC, 	a 	cease 	and
desist 	order 	is 	appropriate. 	See 	Carpenter 	Steel 	Company
(1948) 	76 NLRB 670. 	[21 LRRM 1232]. 	NLRB v. 	Dennison
Manufacturing Co. 	(CA 1 1969) 	419 F.2d 1080, 	[72 LRRM 2972].
The 	facts 	of 	this 	case 	do 	not 	fit 	neatly 	into 	any case 	I 	am
aware of. 	However, 	this 	is 	not atypical when
domination/support 	issues 	are 	raised. 	Each 	case 	must 	be
evaluated 	on 	its 	facts 	to 	determine 	the 	level 	of 	employer
control 	or 	assistance 	and 	ultimately 	the 	impact 	of 	the 	unlawful
conduct 	on employee 	free 	choice. 	See Hertza 	and Knowles 	v.
NLRB, 	supra. 	Under 	this 	standard, 	a review of 	the 	totality of
the 	circumstances 	presented 	here 	leads 	to 	a 	finding of
domination.
62

It 	is undisputed 	that 	the 	initial 	formation of 	CEC did 	not
represent the exercise of 	employee 	free choice. 	Plainly, 	it
was Dr. 	Weichert's 	idea 	from the beginning, 	and he participated
heavily 	during 	the 	employee 	orientation meetings 	where 	CEC was
born. 	He 	had 	a 	similar 	level 	of 	participation at 	two 	early CEC
meetings. 	It was Dr. Weichert's September 12, 	1983. 	memo to
employees 	which 	effectively 	set 	the 	quite 	detailed 	structure
for CEC. 	It seems 	clear 	that, 	but for Dr. 	Weichert's efforts,
CEC would 	never 	have 	come 	into 	existence.
In reaching 	the 	conclusion 	that 	CEC was 	a 	dominated
organization, 	it 	cannot 	be 	overlooked 	that management
representatives 	sat 	on the 	Council, 	and 	obviously participated
in all meetings, 	including executive sessions. 	Specifically,
they were privy to 	all Council 	discussions, 	activities, 	and,
importantly, 	even 	the 	so-called 	"confidential" 	communications
from bargaining unit 	employees who, 	according 	to Kirk, 	may have
gone 	to 	CEC 	after 	becoming disenchanted with CSEA. 	By virtue
of 	the 	superior 	positions 	of 	these 	management 	representatives
in 	the District 	hierarchy, 	one would 	have 	to distort 	reality to
conclude 	that 	this 	arrangement 	presented 	anything 	but 	a 	serious
threat 	to 	employee 	organization 	independence.
The 	CEC 	constitution 	represents 	yet 	another 	area 	which
points 	to employer 	control. 	A unique document, 	the
Constitution 	intertwines 	the 	District 	and 	CEC 	so 	tightly 	that
any remedy 	short 	of 	disestablishment 	seems 	incapable 	of
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breaking 	the 	ties. 	That 	document 	expressly establishes 	CEC 	as
a 	representative 	organization, 	and 	it 	has 	been found 	that 	CEC
acted 	out 	this 	representational 	mandate with quite 	considerable
District 	help. 	It 	provides 	a 	formal 	procedure 	for 	CEC
presentation 	of 	recommendations 	to 	the District 	and 	for
District 	responses, 	a procedure 	not unlike 	the 	give 	and 	take
found 	in 	the 	bargaining process 	itself.
The 	Constitution further 	provides 	for 	CEC 	participation 	in
the 	kinds 	of 	governance 	organizations 	described 	above, 	and 	the
College President may be 	invited 	to 	CEC meetings 	as 	a
"consultant 	or 	advisor." 	Perhaps 	the 	strongest 	indicator 	of
actual 	control 	lies 	in the 	constitutional 	provision which 	gives
the District 	the 	right 	to 	reject 	the Constitution 	itself, 	or
any amendments 	thereto. 	Under 	such an arrangement 	the District
is 	free 	to mold 	the 	organization 	in accordance with 	its 	desires
or. 	arguably, 	to disband 	it completely. 	In the end, 	it 	is 	the
District, 	not employees, 	who have 	the final 	say regarding
constitutional 	matters.
It 	should 	be 	noted 	that 	the 	Constitution disclaims 	any
intent 	to 	represent 	employees 	in grievances 	or 	negotiations,
and 	the 	record 	is 	clear 	that CEC has 	not done 	so. 	However, 	a
close 	reading 	of 	the Constitution 	reveals 	that 	it 	does 	not
disclaim any 	intent 	to 	engage 	in 	the 	kinds 	of 	representational
activities 	in 	"employment-related" 	matters 	which have 	been
found 	above 	to 	be unlawful.
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The 	assistance 	in conducting elections, 	and 	in providing
photocopying, 	stationery, 	mail service, 	release time, 	meeting
rooms 	and even money points 	to domination, 	as well. 	Indeed,
one 	gets 	the definite 	impression that, 	but 	for 	this
considerable 	amount 	of 	support 	at 	almost 	every 	level 	of
operation, 	CEC 	could 	not 	generate 	internally the 	necessary
machinery 	to 	operate.
When examined 	closely, 	it 	becomes 	clear 	that CEC's 	role 	in
the various 	governance organizations, 	and 	its 	participation at
the Board 	of 	Trustees 	meetings was 	more 	the 	result 	of 	District
encouragement 	and 	invitation 	than 	of 	CEC's 	independent
efforts. 	It was 	the District which repeatedly 	invited 	CEC 	to.
for 	example, 	program review or 	administrative 	staff 	meetings.
The 	record 	is 	replete with such overtures. 	The 	level 	of
participation by CEC 	in at 	least 	some 	of 	these 	areas 	seemed
largely 	to 	be 	that 	of 	an 	observer. 	This 	can be 	said 	about 	the
administrative 	staff 	meetings, 	the 	early program review
meetings, 	and 	the 	extra-money meetings 	in 	the Forum Theater,
which was 	actually 	conducted 	by Dr. 	Weichert 	and
Dorothy Dilling. 	Indeed, 	CEC 	representatives 	even rejected,
for 	lack of 	time, 	the opportunity to 	sit 	on a 	seemingly
important financial management 	committee. 	This 	is 	not 	to
minimize 	the 	fact 	that 	CEC 	played 	an effective 	role 	in 	some 	of
the activities 	described 	above. 	Nevertheless, 	one 	gets 	the
impression from 	the 	overall 	record 	that 	it was 	the District.
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not CEC. 	which 	in 	large 	part 	orchestrated CEC's
representational 	activities.
Finally, 	it appears 	that disestablishment under 	the 	facts
presented 	here will 	not 	pose 	an 	overly 	disruptive 	threat 	either
to 	the classified employees or 	the District. 	CEC 	is 	a fairly
young organization, 	with a 	history of 	representation dating
back only a 	few years. 	It has 	no formal membership, 	nor 	does
it 	have 	a 	dues 	structure. 	It 	is 	limited 	to 	only seven members
who 	actually sit 	on 	the Council. 	Dismantling 	such an
organization does 	not 	present 	the 	kind 	of 	difficulties 	inherent
in 	disestablishing 	an 	organization which might 	have 	stronger
historical 	ties 	to 	the employees 	or 	the District.
The District, 	in its 	brief, 	argues 	that disestablishing CEC
is 	tantamount 	to 	a declaration that 	"all 	organizations 	of
employees 	existing 	on a 	college 	campus 	which have 	any dialogue
whatsoever 	with college 	administration 	is 	prohibited." 	The
District's 	projected 	impact 	of 	such a 	finding 	is 	grossly
exaggerated, 	in my view. 	Employees 	are 	certainly free 	to
establish, 	on their 	own initiative, 	an organization which
serves a social or 	recreational purpose, 	or. 	for that matter,
serves 	as 	a 	communications 	vehicle 	or 	even an employee
organization. 	The District 	remains 	free 	to 	communicate with
and 	gather 	information from employees 	directly 	or 	through 	the
exclusive representative. 	However, 	the District 	is 	not 	free 	to
create 	an employee 	organization 	out 	of 	whole 	cloth 	and 	support
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and 	control 	it 	to 	the 	level 	described 	herein. 	Oak Grove 	School
District, 	supra, 	p. 	18. 	And, 	this 	is true whether or not
employees 	as 	a 	group 	complain about 	the 	domination. 	Lawson Co.
V. 	NLRB 	(CA 6 	1985) F.2d. [118 LRRM 2505].
Finally, 	the District 	asserts 	that 	any restriction on 	the
right 	of 	CEC to 	exist will violate CEC members' 	freedom of
speech and 	right 	to 	association. 	It 	asserts 	additionally 	that
any prohibition on 	the 	right 	of 	CEC 	to 	communicate 	its 	views
will 	infringe 	on the District's 	freedom of 	speech, 	i.e. 	"the
right 	to hear."
The 	arguments 	advanced 	by 	the 	District 	have 	long 	been
rejected 	by the U.S. 	Supreme Court.
Respondents 	argue 	that 	to 	hold 	these
employee 	committees 	to 	be 	labor
organizations would 	prevent 	employers 	and
employees 	from discussing matters 	of 	mutual
interest 	concerning 	the 	employment
relationship, 	and would 	thus 	abridge 	freedom
of 	speech 	in violation of 	the First
Amendment 	of 	the Constitution. 	But the
Board's 	order 	does 	not 	impose 	any 	such 	bar;
it 	merely precludes 	the 	employers 	from
dominating, 	interfering with or 	supporting
such 	employee 	committees 	which Congress 	has
defined 	to 	be 	labor 	organizations. 	NLRB v.
Cabot Carbon Co. 	360 U.S. 	2-3.
The 	recent 	Supreme 	Court 	cases 	cited 	by 	the District 	do 	not
compel 	a 	different 	result. 	While 	these 	cases 	covered 	freedom
of 	speech and 	association, 	they did 	not 	present unlawful
domination/interference 	issues 	such as 	those 	presented 	here.
As 	the Court pointed 	out 	in Cabot Carbon Co.. 	a
disestablishment 	order 	would 	not 	interfere with 	any
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Constitutional 	right. 	Employees 	remain 	free 	to 	form and 	join
organizations such as CEC. 	Such organizations 	are 	free 	in
appropriate ways, 	to 	present 	their 	views 	to 	the District 	and
the District 	is 	free to 	listen. 	See e.g. 	San Ramon Valley
Unified School District 	(1982) 	PERB Decision No. 	230.
It 	also 	is 	appropriate 	that 	the District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by an authorized 	agent 	of 	the 	Redwoods
Community College District 	indicating 	that 	it 	will 	comply with
the 	terms 	thereof. 	The 	notice 	shall 	not 	be 	reduced 	in size.
Posting 	such a 	notice will 	provide 	employees with 	notice 	that
the District 	has 	acted 	in an unlawful 	manner 	and 	is 	being
required 	to 	cease 	and 	desist 	from 	this 	activity 	and 	otherwise
to 	comply with the 	proposed 	order. 	It 	effectuates 	the 	purposes
of 	the EERA that 	employees 	be 	informed 	of 	the 	resolution of 	the
controversy 	and will 	announce 	the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	See 	Placerville Union 	School
District 	(1978) 	PERB Decision No. 	69; 	Pandol and Sons v.
Agricultural Labor Relations Bd. 	(1979) 	98 Cal.App.3d 	589. 	587;
NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law.
and 	the 	entire 	record 	in the 	case, 	and 	pursuant 	to 	section
3541.5(c), 	it 	is hereby ordered that the Redwoods Community
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College District 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Dominating 	or 	interfering with the 	formation or
administration of 	any employee 	organization, 	or 	contributing
financial 	or 	other 	support 	to any employee organization, 	or
engaging 	in 	any 	conduct which 	tends 	to 	encourage 	employees 	to
join any employee 	organization 	in preference 	to 	another.
(b) 	Interfering with the 	exercise 	of 	employee 	rights
to 	form, 	join and 	participate 	in the 	activities 	of 	employee
organizations 	of 	their 	own choosing 	for 	the 	purpose 	of
representation on all 	matters 	of 	employer-employee 	relations.
(c) 	Interfering with the 	right 	of 	the California
School 	Employees 	Association and 	its 	Beatrice 	Chapter No. 	509
to 	represent 	bargaining unit 	employees 	in 	their 	employment
relations 	with 	the 	Redwoods 	Community College 	District.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE ACT:
(a) 	Completely 	disestablish 	the 	Classified 	Employees
Council 	as 	the 	representative 	of 	employees 	in the bargaining
unit 	represented 	on an exclusive 	basis 	by 	the 	California 	School
Employees Association, 	and 	its Beatrice Chapter No. 	509, 	on all
employment 	related 	matters.
(b) 	Within ten 	(10) 	workdays 	of 	service of 	a 	final
decision in this matter, 	post at all 	school 	sites 	and all 	other
69

work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the notice 	attached 	hereto 	as 	an appendix.
The 	notice must 	be 	signed 	by an authorized 	agent 	of 	the
District 	indicating 	that 	the 	District 	will 	comply with 	the
terms 	of 	this 	Order. 	Such posting 	shall 	be maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered 	by any other 	material.
(c) 	Upon issuance of 	a final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to
the 	San Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	her 	instructions.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 32305, 	this Proposed Decision and Order 	shall
become final 	on July 31. 	1986, 	unless 	a party files a 	timely
statement 	of 	exceptions. 	In accordance with PERB Regulations,
the 	statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit number 	the portions 	of 	the record, 	if 	any, 	relied upon
for 	such 	exceptions. 	See 	California 	Administrative 	Code
title 	8. 	part 	III, 	section 32300. 	Such statement of 	exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento before 	the close of 	business 	(5:00 p.m.) 	on
July 31. 	1986. 	or 	sent by telegraph or 	certified or Express
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United 	States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day for
filing 	in order 	to 	be 	timely filed. 	See 	California
Administrative Code, 	title 8, part 	III, 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 	8, 	part 	III,
sections 	32300 	and 	32305.
Dated: 	July 11, 1986
Fred 	D'Orazio
Administrative 	Law Judge
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