Fremont-Newark Community College District (PERB A031E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
FREMONT-NEWARK
	COMMUNITY
	COLLEGE
	DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
	ASSOCIATION
AND
	ITS
	OHLONE
	CHAPTER
	409,
Employee
	Organization,
	APPELLANT.
)
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_______________________
) 
Case
	No.
	SF-UC-33
PERB
	Order
	No. 	Ad-31
Administrative
	Appeal
May
	15,
	1978
Aepearances: 	Paul
	Gygax,
	Secretary,
	Board
	of 	Trustees,
	for
Fremont-Newark
	Community
	College
	District;
	Robert
	L.
	Blake,
Attorney, 	for
	California
	School
	Employees
	Association
	and
	its
	Ohlone
Chapter
	409.
Before:
	Gluck,
	Chairperson;
	Cossack
	Twohey
	and
	Gonzales,
	Members.
OPINION
This
	is
	an
	appeal
	from
	a
	dismissal 	of
	a
	petition
	for 	the
consolidation 	of
	two
	negotiating 	units
	of
	classified
	employees.
FACTS
The
	facts
	are
	not 	in
	dispute.
	On
	April
	2, 	1976,
	the
	California
School
	Employees
	Association
	(CSEA)
	filed
	a
	request
	with 	the
Fremont-Newark
	Community
	College
	District 	(District)
	for 	voluntary
recognition 	in
	a
	"wall-to-wall" 	representation 	unit.
	On
	April 	14,
1976, 	the
	Ohlone
	Classified
	Employees
	Association 	intervened 	seeking
establishment 	of
	a
	unit 	of 	office
	and
	technical 	aides 	employees.
	On
April 	28, 	1976, 	the
	District 	filed
	a
	position 	statement 	indicating
both 	units
	were 	deemed
	appropriate
	and
	requesting 	that
	an
	election
be
	held.
	On
	April 	27, 	1977, 	pursuant 	to
	a
	hearing 	conducted 	by	
a

Board
	agent,
	an
	informal
	settlement
	was
	reached
	by
	the
	parties
	in
accordance 	with
	which
	CSEA
	split 	its
	original 	petition
	and
	was
	to
	be
granted 	voluntary 	recognition
	in
	an
	operations/support
	services 	unit
and
	a
	representation
	election
	was
	to
	be
	conducted
	among
	employees
	in
an
	office/technical/business
	services
	unit.
	On
	May
	27,
	1977,
	CSEA
was
	certified
	as
	the 	exclusive 	representatiYe 	of 	the
	contested 	unit
as
	a
	consequence
	of
	having
	received
	a
	majority 	of
	the
	votes
	cast.
On
	June 	15, 	1977,
	the
	District
	and
	CSEA
	joined 	in
	a
	petition
	for
consolidation
	of
	the
	two
	units.
	The
	regional
	director
	dismissed
	the
petition
	on
	the
	grounds
	that 	rule
	33260,
1
under
	which
	the
	petition
lcal.
	Admin.
	Code,
	tit.
	8,
	sec.
	33260,
	which
	provides:
33260.
	Petition.
(a)
	An
	employee
	organization,
	an
	employer, 	or 	both
	jointly,
may
	file
	wit~
the
	regional
	office
	a
	petition
	for
	a
	change 	in
	unitdetermination 	pursuant 	to
	Section 	3541.3(e)
	of 	the 	Act.
(b) 	The
	petition 	shall
	contain 	the 	following 	information:
(J)
	The 	name,
	address
	and
	county
	of 	the 	employer;
(2) 	The 	name 	and
	address 	of 	the
	employee
	organization,
and
	the
	name,
	address
	and
	telephone 	of 	the 	agent
	to
	be
	contacted;
(3) 	A
description
	of 	the
	established 	unit;
(4) 	The
	approximate
	number
	of
	employees
	in 	the
established 	unit;
· 	(5) 	The
	date 	voluntary 	recognition
	was
	extended 	or 	the
existing 	certification
	was
	issued;
(6) 	A
description
	of 	the 	proposed
	unit;
(7) 	The
	approximate
	number
	of
	employees
	in 	the
	proposed
unit;
(8) 	The 	name 	and
	address 	of
	any
	other
	employee
organization
	known
	to 	claim 	to 	represent
	any 	employees
	affected
	by
the
	proposed 	change
	in 	the
	established 	unit;
(9) 	A
concise 	statement
	setting 	forth 	the 	reasons 	for
the 	request 	to
	change 	the 	unit 	determination.
(c) 	A copy
	of
	a
	petition 	filed
	by 	an 	employee
	organization 	oran 	employer 	alone
	shall
	be
	concurrently 	served
	on
	the 	other 	party.
A
statement 	of 	service 	shall
	be
	sent 	to 	the 	regional 	office
	with
the 	petition.
(d) 	The 	employer
	shall 	post
	a 	copy 	of 	the 	notice
conspicuously
	on
	all
	employee
	bulletin 	boards 	in 	each
	facility 	of
the 	employer 	in 	which 	members 	in 	the 	established 	unit
	and 	in 	the
unit 	claimed 	to 	be 	appropriate 	are 	employed. 	The
	notice 	shallremain 	posted 	for 	at 	least 	five 	workdays.
2

had
	been
	filed,
	was
	not
	applicable.
	The
	parties
	were
	informed
	in
the
	letter
	of
	dismissal
	that
	"to
	achieve
	consolidation
	•.•
	required
that
	a 	new
	petition
	for
	recognition
	be
	filed
	pursuant 	to
	section
33050
	of
	the
	EERB
	Rules
	and
	Regulations."
	Subsequently,
	the
executive
	director
	of
	the
	Board
	affirmed 	the
	action
	of
	the
	regional
director.
DISCUSSION
In 	dismissing
	the
	petition
	under
	rule
	33260 	and
	suggesting
	the
alternative
	procedure
	under
	rule
	33050,
2
the
	regional
	director
	may
2
cal.
	Admin. 	Code_,
	tit.
	8,
	sec.
	33050,
	effective
	April
	1977,
7•
which
	provides:
33050.
	Request
	for
	Recognition.
(a)
	An
	employee
	organization
	may
	file
	with 	the
	employer
	a
request 	for 	recognition
	as
	the 	exclusive
	representative 	of
	an
appropriate
	unit.
	The
	request
	shall
	contain
	the 	following
information:
(1)
	The 	name
	and
	address
	of
	the
	employee
	organizationrequesting 	recognition,
	and
	the
	name.
	address
	and
	telephone
number
	of
	the-employee
	organization
	agent 	to
	be
	contacted;
(2)
	The 	name,
	address
	and
	county
	of
	the
	employer;
(3)
	The
	date 	the 	request
	is 	filed
	with 	the
	employer;
(4)
	A
description 	of 	the 	grouping
	of
	jobs 	or
	positions
which
	constitute
	the
	unit
	claimed 	to
	be
	appropriate;
(5)
	The
	approximate
	number
	of
	employees
	in
	the
	unit
claimed 	to
	be
	appropriate;
(6)
	A
statement
	that
	a
	majority 	of
	the
	employees
	in
	the
unit
	claimed 	to
	be
	appropriate
	wish 	to
	be
	represented	
by	
the
employee
	organization;
(7)
	The 	name 	and
	address 	of
	any
	other
	employee
	organiza-
tion
	which,
	within 	the
	12
	months
	preceding 	the 	request 	forrecognition, 	either 	is
	known
	to
	have 	been
	recognized
	by
	the
employer 	as 	the 	exclusive 	representative 	of
	any 	employees
included 	in
	the
	unit
	described 	in 	the 	request,
	and
	the
	date 	ofsuch
	other 	recognition, 	or
	is
	known
	to
	have
	demanded
	recognitionas 	the 	exclusive 	representative 	of
	any 	employees
	in 	the
	unitdescribed 	in 	the 	request;
(8) 	The
	effective
	date
	and
	expiration 	date 	of
	anv 	known
written
	agreement 	between 	the 	employer 	and
	another
	employee
organization 	covering 	any 	employees
	included 	in 	the
	unitdescribed 	in 	the 	request 	for 	recognition
	and 	the
	name
	and
address 	of
	such
	other
	employee
	organization;(b) 	Proof 	of majority 	support 	in 	the 	unit
	claimed 	to 	be
appropriate, 	or
	a
	verified
	copy
	thereof, 	shall
	be
	filed 	with
the 	employer 	concurrent 	with 	the 	request.(c) 	The 	employee 	organization 	shall 	concurrently 	send 	a 	copy
of 	the 	request, 	excluding 	the 	proof 	of majority 	support, 	co
the 	regional 	office.~Subsequently 	amended 	January 	16, 	1978.
-3-

have 	been
	concerned
	that
	a
	question 	of
	the
	appropriateness
	of
the
	resulting
	new
	unit
	would 	be
	presented
	which
	should
	properly
be
	considered	
by	
the
	Board.
	In
	addition,
	an
	election
	had
	been
held 	in
	one
	of 	the
	units
	and
	there
	would 	be
	reason 	to
	wonder
	if
the
	results
	of
	that 	election
	would 	have
	been
	the
	same 	had
	the
employees
	voted
	in
	the
	proposed
	consolidated 	un1t.
	While
	the
letter
	of
	dismissal
	is
	silent
	on
	these
	matters,
	these 	are 	not
unreasonable 	inferences
	to
	draw
	in
	light
	of 	the 	nature 	of
	the
proceedings 	the
	regional
	director
	would
	have
	required 	the
parties
	to 	pursue.
Be
	that
	as
	it
	may,
	the
	Board
	does
	conceive
	of 	rule
	33260
	as
an
	appropriate 	vehicle
	for
	any
	change
	in
	a
	unit, 	at 	least
	yntil
such 	time 	as
	it
	may
	decide 	to
	establish
	more
	specific
procedures 	to
	accommodate
	requests 	for 	the
	variety
	of
	unit
alterations
	that
	may 	be
	anticipated.
	Nevertheless,
	we
	affirm
the
	dismissal
	of 	the
	petition
	for
	consolidation,
	though
	for 	the
different
	reasons
	that
	follow.
In
	its
	joint
	request, 	the
	District
	and
	C:SEA
	argue
	that
consolidation 	of 	the
	two
	units
	would
	provide
	"optimum
representational
	support 	for 	the
	entire
	range
	of
	classified
employees 	in
	this
	district."
	The
	time 	to
	raise
	such 	an
argument
	was
	during 	the 	hearings
	on
	the
	original 	requests 	of
-4-

CSEA
	and
	the
	jntervenor,
	Ohlone
	College
	Classified
	Employees
Organization.
	To
	raise
	it
	just
	19
	days
	after
	the
	election
	and
certification
	of
	CSEA
	in
	a
	unit
	found
	by
	the
	Board
	to
	be
appropriate
	is
	to
	seek
	to
	relitigate
	issues 	already 	resolved.
For
	the
	Board
	to
	accept
	a
	petition
	under
	these
	conditions
	would
be
	to 	place
	itself
	at
	the
	disposal
	of
	any
	party
	who
	finds
	it
advantageous
	to
	alter
	the
	unit 	configuration 	established
	by
	the
Board.	
•
Beyond
	that,
	the
	possibility
	that
	full-scale
	hearings
	on
the
	appropriateness 	of 	the
	proposed
	new
	unit
	might
	have
	to
	be
conducted
	and 	new
	elections
	held
	evokes
	prospects 	of
	additional
expenses,
	further 	interruptions
	of
	work
	in 	the
	District
	and
onerous
	administrative
	burden
	imposed 	on
	Board
	staff
	that
	would
be
	totally
	unwarr-anted
	absent, 	at
	the 	very
	least,
	a
	clear
showing
	of
	a
	major
	and
	material
	change
	in 	the 	circumstances
which
	were
	dispositive
	when
	the
	units
	were
	originally
established.
At
	best,
	the 	request 	in
	this
	case
	is
	untimely.
	There
	could
not
	have 	been
	an
	accumulation 	of
	sufficient
	experience 	for 	the
parties
	to
	form 	a
	cJear 	opinion 	of 	the
	efficacy 	of 	future
negotiating 	in 	the
	existing 	units.
	The
	stated 	belief
	in 	the
"optimum"
	possibilities
	of
	a
	consolidated 	unit 	is
	both 	without
foundation 	in 	fact
	and
	contrary 	to 	the 	basic
	and
	consistent
approach 	taken
	by
	the
	Board
	since 	Sweetwater 	Union 	High
	School
District
	(11/23/76)
	EERB
	Decision
	No. 	4. 	Quite
	clearly, 	the
employees 	who 	now
	comprise 	the 	operations/support 	services 	unit
could 	have
	significantly 	less 	influence 	on 	the 	outcome 	of
5

negotiations
	in
	the-proposed
	consolidated
	unit
	in
	which
	they
would
	constitute
	only 	about
	one-quarter 	of
	the
	total
	unit.
Further,
	for 	the
	Board
	to 	accept
	a
	petition
	under
	the
circumstances 	in
	this
	case
	would 	be
	adverse
	to 	the
	statutory
desire
	to
	provide
	for
	a 	minimum
	period 	of
	stability
	in
	which
collective
	negotiations
	may
	take
	place.
Furthermore,
	to
	permit
	consolidation
	so
	soon
	after
	the
election
	of
	an
	exclusive
	representative
	would 	be
	to
inadvertently
	encourage
	a
	strategy
	designed
	to
	dilute
	the
ability
	of
	employees
	who
	have
	become
	disenchanted
	with
	the
quality
	of
	representation 	to 	exercise
	their 	statutory
	freedom
of 	choice
	through
	the
	decertification
	process,
	though
	we
	imply
no
	such 	purpose
	underlying 	the
	joint 	petition
	before 	us.
The
	entire
	matter 	of 	unit
	changes,
	and 	most
	particularly
that
	of 	consolidation,
	demands
	careful 	evaluation
	by
	the
Board.
	Pending 	such
	action,
	the
	Board, 	as
	a
	matter 	of
	policy,
will
	not 	accept
	petitions
	for
	consolidation 	of
	two
	or
	more
established 	negotiating 	units 	into
	a
	single 	unit 	absent
	a
	prima
facie
	showing
	of 	overriding
	need.
6

ORDER
The
	action
	of 	the 	executive
	director
	affirming 	the
regional
	director's
	dismjssal 	of
	a
	petition
	for
	consolidation
filed 	jointly
	by
	the
	Fremont-Newark
	Community
	College
	District
and
	the
	California
	School
	Employees
	Association,
	is
	affirmed
.
By:	
rperson
7
•
	Coss~

IT
Ait
01 CALIIORNIA 	~-===================
EDUCATlONAL
	EMPt.OYMENT
	RfLATlONS
	BOARD
San
	Frcnc:isco
	Regionol
	Office
1n
Post
Street,
	Ninth
	Floor
Son Francisco,
	Co!ifcrnic	
94
l
08
:4 i 5)
5.57
-1
3.50 
December
	9,
	1977
Mr.
	William
a.
	Richter,
	Superintendent
Fremont-Ne~ark
Community
	College
District
P.
	a. 	Box 909
Fremont,
	California
	94537
Ms.
	Betty
	Boykin,
	Field
Representative
California
	School
	E::iployees
	Association
333
	Hegenberger
	Road,
	Suite
413
Oakland,
	California
	94621
Re:
	Fremont-Ne~ark
CoClmunity
	College
District
S"F-R-379
Dear
	Interested 	Parties:
j.
('
' """\' .J
On
	June
	15,
	1977
	~e
	received
	your
	joi~t
	request 	for 	consolidation of
	the
	Office,
Technical
	and
.Business
	Services
	unit
	and
	the Maintenance/Operation
	and
	Support
unit.
rne
	EE?..S
	issued
a
	certification
	to
	California
	School
	E::lployees
	Association
	and
its
	Ohlone
	Caapter
	490 	(CSEA) 	on
May
	27,
	1977
	for 	the
Office,
	Technical
	and
Business 	Se:-~ices
	unit.
	This
	rasulted 	froc
an
	election
conducted
~y
	19,
	19i7,
in
~hich
	the
	employees'
vote reflectetl
	c~eir
	wishes concer~in~
	=e?resencation
~ithin	
a	
prescribed
unit.
	The
	District granted
	voluntary
	recognition 	to
Califorr'.ia
	School
	E::iployees
	Association
	and
	its
	Ohlone Cha;,te?:
	L..90
	(CSE...;.)
	oo.
April
	27,
	1977
	for
	che
~.aintenance/Operation
	and
	Support
	unit.
	rnis
	resulted
froQ
	a
	settlement
	reached
	at
	an infor.:ial
	hearing
	conducted
	by an
	En3
	hearing
officer.
	Your
	petition
cust 	therefore
	be
denied.
	Joint
	ne~otiacions 	for
	all
c::::iloyE::~s
	rapresenced
by
CSE..\
and
	its
	Ohlone Chap
cer
	490
	is
	no
c
;:ireclucec!
	by
:-:,-e~e
	fac
::.ors,
	hc.,.ever.
To
	achieve
	consolidation of
	these uni~s 	r=quiras
	chac a
	::1e~
	pe:i:ion
	:o=
	re:02-
nicion
	be
	:iled
	pursuant
	co
	Seccion
	33050
	of
	th:::
	E-=-?.,3
	:t::.le:s
	a::1d
	?..eg•..:la:::.ons •
.
.;.,,"17
=~=
bars
	co
	such	
a	
filing
	:msc,
	or
	cou=se,
	alsc
	oe
	rne:
	(sae
	Sc•:cicn	
3.5:.:...:..
i('b)
of	
~~A	
and
	Sec:icn
	33150(b)
	of
	:::,,e	
~~~3	
~ulas
	and
	~e1~la:ions.
!.:
	you
	hav,;,
	any	
ques:::ion.s
	concerning
	this
	::.a::.er, 	please:
	1 er: oe 	kno~.
A.~	
~ppeal
	r:o
	chis 	decision
:::.ay
be
::.a.de
~ichin
	cen
	calendar
	days
	of
	racai?C
	o:
c~~s	
~=~~=r,
	s~acing	
~~e	
fac~s
	upon whic~
	:he
a~pe2l
	is
	b~se~ and
	ti:a~ 	~i=h
::-:e 	:::-:e-::uci·-1e
Jirec-:or,
	~-~:-.
	C;;.ar.las
	Cole,.:.:
	923 	12::i.
	Sc:-a-::,
	Su:..:e	
ZOO,
St3c:'ai:!enr:o, 	Cali:or0..:'..a 	95314., 	C-:,;:.::s
	of
any
	a:;,pe.-al ::us~ 	':e
	::-::-,eC
	u?On
	al.:
oc~er
	9~r:ias
	c~
Regional 	Of=ice"
~~gion~l 	9i=ac:or
,.;...,.;-;: 3C'S : =:a