El Centro School District (PERB A051E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
EL
	CENTRO
	SCHOOL
	DISTRICT,
Employer,
and
EL
	CENTRO
	ELEMENTARY
	TEACHERS
ASSOCIATION,
Employee
	Organization,
APPELLANT.
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)
)	
Case
	No.
	LA-R-579
PERB
	Order
	No. 	Ad-
51
Administrative
	Appeal
January
	2,
	1979
)
)
)
)
)
)
)
Appearances:	
Christina
	L.
	Dyer, 	Deputy 	County
	Counsel
	(County
of 	Imperial) 	for
	El
	Centro
	School
	District;
	Charles
	R.
Gustafson, 	Attorney 	for
	El 	Centro 	Elementary 	Teachers
Association.
Before
	Gluck,
	Chairperson;
	Cossack
	Twohey
	and
	Gonzales,
	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board)
	on 	an
	appeal
	by
	the
	El 	Centro
Elementary 	Teachers
	Association 	(hereafter
	ECETA)
	from
	the
Los
	Angeles
	regional
	director's
	decision 	to 	dismiss
	a
	portion
of
	its
	petition
	for
	a
	change
	in 	unit 	determination.
	The
regional 	director
	dismissed
	that 	portion 	of 	the
	petition
seeking 	addition 	of 	the 	following 	positions 	to
	an
	existing
certificated 	unit:
	home
	teachers, 	hourly 	rate 	teachers,
counselors, 	psychologists, 	reading 	coordinators, 	speech 	therapy
director,
	and
	directors.

FACTS
On
	April 	1,
	1976,
	ECETA
	petitioned
	for
	a
	unit
	of
certificated
	employees
	of 	the
	El
	Centro
	School
	District
(hereafter
	District).
	Voluntary
	recognition
	was
	granted
	by
	the
District
	on
	May
	12,
	1976.
	On
	February
	23, 	1978,
	ECETA
	filed
with
	PERB
	a
	petition
	for
	a
	change
	in
	unit
	determination.
	On
March
	27, 	1978,
	ECETA
	filed
	a
	supplement
	to
	that
	petition.
	The
petition
	and
	supplement 	seek
	to
	add
	certain 	positions 	to 	the
existing 	unit.
1	
These
	are:
	summer
	school
	teachers
	who
	are
lThe
	petition
	described 	the
	established
unit
	as:
•••
all
	classroom
	teachers, 	nurses, 	resource
teachers,
	librarians
	and
	speech
	therapists,
excluding 	those
	listed
	by
	the 	public
	school
employer
	as
	management.
	This
	unit 	will
exclude
	summer
	school
	teachers,
	substitute
teachers,
	home
	teachers,
	and
	hourly
	rateteachers.
The
	following
	employees
	are
	hereby
designated
	as	
1T'I !:I
't"'li
!:lrT.O.TnOl"'\-f--
•	
.,Ut\,,,,&..l.&.'-'L;:)
'-J.U'-.1.J.
...,_
•
Superintendent, 	Assistant 	Superintendents,Coordinator 	of 	Special
	Projects, 	Principals,Vice-Principals, 	Assistant 	Principals,Directors,
	Counselors, 	Psychologist,
District
	Librarian,
	Reading
	Coordinator,
Director 	of
	Speech 	Therapy.
Also 	excluded
	from
	representation 	in
	this
classification
	are 	the 	following
	positions,
which
	the
	Board 	hereby
	designates
	as
confidential
	employees:
All 	persons 	serving
	on
	the 	Boards 	of
Trustees' 	Negotiating
	Team
	as
representatives 	of 	the 	Board, 	as 	well 	as
	all
employees 	privy 	to 	or 	having 	access 	to
plans, 	data,
	and 	memoranda
	relating 	to 	the
negotiating 	position 	or 	employer-employee
2

regular
	classroom
	teachers
	in
	the
	District,
	psychomotor
specialists,
	language
	arts 	specialist,
	home
	teachers,
	hourly
rate
	teachers,
	counselors, 	psychologists,
	reading
	coordinators,
speech
	therapy
	director, 	directors,
	and
	bilingual
	resource
specialist.
	The
	District
	agreed
	to
	the
	inclusion
	of
	summer
school 	teachers
	who
	are
	regular
	classroom
	teachers
	in
	the
District,
	psychomotor
	specialists
	and
	language
	arts
specialists.
	The
	regional
	director
	found
	that
	the
	position
	of
bilingual
	resource
	specialist
	was 	a 	newly
	created
classification.
	The
	regional
	director
	decided
	to
	entertain
ECETA's
	petition
	with 	regard
	to
	this 	classification
	and
	to
dismiss 	the
	petition
	with
	respect 	to
	home
	teachers,
	hourly
	rate
teachers,
	counselors, 	psychologists,
	reading
	coordinators,
speech 	therapy
	director
	and
	directors.
	The
	regional
	director's
dismissal
	noted
	that
	these
	positions
	were
	originally
	excluded
by 	the
	parties
	from
	the
	unit
	which 	was
	established
	by
	voluntary
recognition.
	ECETA
	appeals 	the
	dismissal.
relations
	of 	the
	Board
	of 	Trustees.
	Also
specifically
	excluded
	from
	recognitionwithin
	this 	contract 	are
	all 	classifiedpositions.
The
	proposed
	unit 	is
	described 	as:
All 	classroom 	teachers, 	nurses, 	resource
teachers, 	librarians,
	speech
	therapists,
summer
	school 	teachers
	who
	are 	regularclassroom 	teachers 	in 	the
	District,
	home
teachers, 	hourly 	rate 	teachers, 	counselors,
psychologists, 	reading 	coordinators, 	speech
therapy 	director, 	directors, 	bilingualresource 	specialists,
	psycho-motor
specialists, 	[language 	art 	specialist,]
	and
other 	newly 	created 	positions 	falling 	into
these 	categories.
3

DISCUSSION
The
	regional
	director
	based
	her
	dismissal
	on
	the
	ground
that
	"the
	portion
	of 	the
	petition
	covering 	these
	positions
	does
not
	meet
	the
	criteria
	outlined
	in
	Resolution
	No. 	6 	and
therefore
	cannot
	be
	entertained
	by
	the
	PERB."
	Resolution
No.
	6,
	adopted
	by
	the
	Board
	at
	its
	July
	6,
	1976,
	meeting,
states: 
Petitions
	for
	changes
	in
	unit
	determinationspursuant 	to 	Section
	3541.3(e)
	of
	the
	Act
will
	be
	entertained
	by
	the 	Educational
Employment
	Relations
	Board
	under
	thefollowing 	circumstances:
1.
	Where
	both
	parties 	jointly
	file
	a
petition;
	or
2.
	Where
	there
	has 	been
	a
	change
	in 	the
circumstances
	which
	existed 	at
	the
	time
	of
the
	initial
	unit 	determination.
On
	July
	28, 	1976,
	the
	Board
	adopted 	formal
	rules,
	one
	of
which
	was
	rule
	33260.
2	
This
	provides, 	in 	pertinent 	part:
(a)
	An
	employee
	organization,
	an
	employer,
or 	both
	jointly,
	may
	file
	with
	the 	regional
office
	a
	petition
	for
	a
	change
	in 	unitdetermination 	pursuant 	to 	section
	3541.3(e)
of 	the 	Act.
2cal.
	Admin. 	Code,
	tit.
	8, 	sec.
	33260, 	which 	was
	adopted
by
	PERB
	under
	the 	authority 	conferred
	by 	Gov. 	Code
	section3541.3. 	Sec. 	3541.3(e) 	provides
	that:
The 	Board
	shall
	have
	all
	the 	followingpowers 	and
	duties:
(e) 	To
	establish	
by 	regulation 	appropriateprocedures 	for 	review 	of 	proposals 	to
	change
unit 	determinations.
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	.
4

Rules
	33260(b)
	and
	(c)
	are 	procedural.3
The
	Resolution
	as
	a
	bar
	to 	the
	Petition.
	Rule 	33260,
	which
was
	adopted
	after
	the 	promulgation
	of 	Resolution
	No.
	6,
	is
controlling.
	Rule
	33260
	does
	not
	incorporate
	the
	limitations
found
	in 	Resolution
	No.
	6,
	and
	therefore
	does
	not
	constitute
	a
3cal.
	Admin.
	code,
	tit.
	8,
	secs.
	33260(b)
	and
(c)
	state:
(b) 	The
	petition 	shall
	contain 	thefollowing
	information:
(1) 	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
	inthe
	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
	theproposed 	change
	in 	the 	established 	unit;
(9) 	A
concise 	statement 	setting 	forth 	the
reasons 	for 	the 	request 	to
	change 	the 	unitdetermination.
(c) 	A
copy 	of
	a
	petition 	filed
	by 	an
employee
	organization 	or 	an 	employer 	alone
shall
	be 	concurrently 	served 	on
	the 	other
party.
	A
statement 	of 	service 	shall
	be 	sent
to 	the 	regional 	office 	with 	the 	petition.
5

bar 	to 	the 	filing 	of 	the 	petition 	for 	change. 	The 	Board 	holds
that 	a 	unit 	change 	petition 	must 	therefore 	be 	entertained 	by
the 	regional 	director 	when 	the 	requirements 	of 	Rule 	33260 	and
4those 	imposed 	by 	statute 	have 	been 	satisfied. 	A review 	of
ECETA's 	petition 	indicates 	that 	it 	does 	comply 	with 	the
requirements 	of 	that 	rule.
The 	exclusion 	from 	the 	original 	unit 	as 	a 	bar 	to 	the
petition. 	The 	fact 	that 	ECETA 	did 	not 	originally 	seek 	to
represent 	certain 	of 	the 	subject 	employees 	now 	sought 	in 	its
petition 	should 	not 	automatically 	bar 	the 	current 	petition.
At 	the 	time 	the 	original 	petition was 	filed, 	the 	Board
encouraged 	voluntary 	recognition 	as 	EERA 	itself 	appears 	to 	do.
ECETA 	itself 	asserted 	that 	it 	never 	intendea 	to 	forego
permanently 	the 	opportunity 	to 	represent 	other
classifications. 	Its 	original 	filing 	was 	designed 	to 	expedite
arrival 	at 	the 	negotiating 	table 	for 	those 	employees 	expressing
interest.
More 	than 	a 	year 	and 	a 	half 	has 	passed 	since 	the 	original
voluntary 	recognition 	occurred. 	The 	District 	and 	ECETA 	have
negotiated 	two 	collective 	agreements 	since 	that 	time. 	No 	other
employee 	organization 	has 	filed 	a 	petition 	to 	represent 	any
certificated 	employees 	in 	the 	District. 	There 	is 	no 	evidence
presented 	to 	the 	Board 	that 	either 	the 	original 	petition 	or 	the
4while 	the 	adoption 	of 	Rule 	33260 	had 	the 	effect 	of
superseding 	Resolution 	6, 	it 	nevertheless 	establishes 	a 	minimum
requirement 	only. 	Any 	requirements 	imposed 	by 	statute, 	such 	as
that 	of 	majority 	support, 	infra, 	must, 	of 	course, 	also 	be
satisfied.
6

instant 	petition
	for
	change
	was
	designed
	to
	or
	does
	interfere
with
	any
	employee's
	right
	of
	self
	organization.
Further,
	considering
	all
	facts
	in
	this
	case, 	there
	is
	no
evidence
	that
	ECETA
	was
	intending
	to 	capture
	small
	groups
	of
employees
	not
	included
	in 	the
	existing
	unit.
	On
	the
	contrary,
it
	is
	seeking
	to
	add
	almost
	all
	that
	remain.
	Under
	these
circumstances,
	PERB
	is
	not 	encouraging 	the
	deliberate
	piecemeal
incorporation
	of
	positions
	by
	employee
	organizations
	and
	finds
ECETA's
	practice
	unobjectionable.
To
	deny
	ECETA's
	current
	petition
	now
	would 	be
	tantamount
	to
barring
	the
	exercise 	of
	EERA
	rights
	by
	those
	employees
	who 	up
until 	this
	time 	have
	not
	been
	covered
	by
	certification
	or
recognition,
	and
	to 	foreclosing
	them 	from
	the 	opportunity 	to
	be
represented
	by 	an
	employee
	organization 	of
	their
	choosing
	in
their
	employment
	relations
	with
	the
	District.
Nevertheless, 	the
	Board 	would
	preclude 	the
	possibility 	that
employees
	may
	be 	added
	to
	an
	existing 	unit
	without 	ever 	having
had
	the 	opportunity 	to 	express
	their
	support 	or
	opposition,
	as
they
	would 	have 	been
	able 	to
	do 	had
	they
	been
	included 	in 	the
original 	petition.
Such
	a
	precaution
	is 	easily 	obtained. 	Section
	3544
	assures
that
	an 	employee
	organization
	may
	not
	become
	the 	exclusive
representative,
	by
	voluntary 	recognition 	or 	election, 	unless
	it
can 	demonstrate
	that
	it
	enjoys 	majority 	support
	among
	the
employees 	in
	an
	appropriate 	unit.5 	This 	Board
	believes 	that
5 This 	principle 	is 	applied 	by 	the 	Board 	in 	itsRepresentation 	Election 	rules, 	Cal 	Adm. 	Code,
	tit.
	8, 	sections
7

this
	principle 	is
	applicable 	to
	the 	circumstances
	of 	the
present
	case.
	A
demonstration 	of
	majority
	support
	will
therefore
	be
	required 	before
	petitioner
	may 	become
	the
exclusive 	representative
	of
	any
	employees
	who
	the
	regional
director
	determines
	may
	actually
	be 	added
	to 	the
	unit.
However,
	since
	this
	case 	involves
	a
	unit 	modification
	and
not
	a
	petition
	for
	a 	new
	unit,
	the 	requirement
	for
	a
	petitioner
to 	demonstrate
	majority
	support 	to
	initiate
	a
	unit
	hearing
	is
not
	applicable
	here.
	Unlike
	a
	petition
	for 	recognition
pursuant 	to 	section
	3544,
	and
	Rule 	33050,
	in
	which 	an 	employee
organization 	requests 	voluntary 	recognition
	from 	an
	employer,
the
	unit
	change
	request
	is
	directed 	to
	PERE. 	The
	function 	of
PERE,
	in 	the 	circumstances 	of
	this
	case,
	is
	only
	to
	determine
the
	unit
	appropriateness 	of
	certain 	positions,
	not, 	of 	course,
to
	grant
	or
	deny
	voluntary 	recognition.
	In
	these
circumstances,
	it
	is 	sufficient 	that 	petitioner
	furnish
	a 	30
percent
	showing
	of 	support
	among
	the
	positions
	it
	seeks
	to
	aaa
in 	order 	to
	initiate
	a
	PERB
	unit 	investigation.
	This
	is
similar 	to 	the
	30
	percent
	showing
	of
	interest
	required 	in
	an
intervention,
	whereby 	a
	competing 	employee
	organization
	may
propose
	a
	unit 	including 	positions 	additional 	to 	those
contained 	in 	the
	original 	petitioner's
	request. 	Additionally,
(Fn 	5
	con't)
33460
	et 	seq., 	specifically 	sections
	33480 	and 	33500. 	These
rules 	provide 	for 	evidence 	of 	majority 	support 	in
	a
	unit
different
	from 	the 	one
	originally 	proposed 	by 	a
	petitioner,before 	voluntary 	recognition 	may 	be 	granted 	in 	the 	unitdetermined 	by 	the 	Board.
8

we
	find
	that
	requiring
	a 	30
	percent
	showing
	of
	interest 	is
sufficient
	to 	ensure
	that
	the 	Board's
	administrative
	processes
will
	not
	be
	abused
	by
	employee
	organizations
	with 	only
	minimal
support.
As
	noted 	above,
	however,
	actual 	recognition
	or
certification
	may
	not
	be
	granted
	until
	it
	has 	been
	demonstrated
that 	petitioner
	enjoys
	majority 	support
	among
	employees
	who 	may
actually
	be 	added.
Finally,
	the
	Board
	notes
	that
	this
	decision
	is
	limited
	to
the
	facts
	presented 	in
	this
	case
	and
	is
	not 	intended
	to
establish
	precedent 	for
	all
	future 	unit
	change
	requests.
-
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	in
	this
case, 	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that:
(1) 	The
	decision 	of 	the
	Los
	Angeles
	regional
	director
dismissing
	a
	portion 	of
	a
	petition
	for
	change
	of
	a
	certificated
unit
	submitted
	by
	the
	El
	Centro 	Elementary 	Teachers
	Association
is
	reversed.
(2)
	Further, 	that
	the
	entire 	petition 	is
	remanded
	to
	the
Los
	Angeles
	regional 	director 	for
	a
	determination 	of
	whether
the 	addition 	of
	all
	or
	any
	of 	the
	employees
	petitioned 	for 	is
appropriate
	under 	the 	provisions 	of 	section
	3545
	of 	the
Educational
	Employment
	Relations
	Act 	and
	rule
	33260
	of 	the
Public
	Employment
	Relations 	Board, 	provided, 	however,
	that
	the
El 	Centro 	Elementary 	Teachers 	Association 	shall 	first
	furnish
the 	regional 	director 	with
	a 	30
	percent 	proof 	of 	interest
	among
the 	employees 	sought 	to 	be 	added.
9

The
	regional
	director 	shall
	conduct
	an
	election
	among
	anv
employees
	who
	may
	actually
	be
	added
	to
	the
	existing
	unit,
provided
	that
	ECETA
	has
	satisfied
	the
	regional
	director
	that
	it
has 	evidenced
	at 	least
	30
	percent 	support
	among
	the
	employees
who 	may 	be
	appropriately
	added;
Provided
	further,
	however,
	that
	if
	ECETA
	has
	satisifed
	the
regional 	director 	that
	it
	has
	evidenced
	majority 	support
	among
the
	employees
	appropriately
	added
	to
	the
	unit,
	the
	regional
director 	shall
	notify
	the
	parties·that
	he
	will
	issue
	an
	order
amending
	the
	negotiating 	unit
	to
	reflect
	the
	addition 	of 	the
employees
	unless 	within
	10
	days
	of
	notification 	either 	of
	the
parties
	requests
	an
	election.
	The
	regional
	director
	shall
conduct
	an
	election
	if
	one
	is
	so
	requested.
Setilou
	Cossack
	Twohey,
	Member 	v
I
/aymfo'id 	J.
	Gonz;:r1es, ;Member 	/
10

STATE
OF
CALIFORNIA
...
IJBLIC
	EMPLOYMENT 	RELATIONS 	BOARD
_ s Angeles Regional Office
j550
Wilshire Blvd.,
Suite
	1708
Los
Angeles,
Cclifornic 	90010
(213) 736-3127
April 	25,
	1978
~Mr.Charles
	R.
	Gustafson, Attorney for
El
	Centro Elementary Teachers Association
1125
	West
Sixth
	Street
Los
Angeles,
	CA
	90017
.,,,·Ms.
Christina
	L.
	Dyer,
	Deputy
County Counsel, Attorney for
El
	Centro
	School
	District
640
State
Street
El
	Centro,
	CA
	92243
Re:
	LA-R-579,
	UC-44
Dear
	Parties:
EOMUNO
G.
BROWN
JR.,
Gov•rnor
The
following 	papers
	and
	opposing papers
	have been
	received
	by
	this
	office:
Petition
	for
	Change
	in Unit Detennination
	filed
	on
	February 23, 	1978,
	by
	the
El
	Centro Elementary Teachers Association; 	Opposition 	to 	Petition 	for
	Change
in Unit Detennination
	filed
	on
	March
	15, 1978,
	by
	the
	El
	Centro School
	District;
Supplement to 	Petition for
	Change
	in Unit Detennination
	filed
	on
	March
	27, 	1978,
by
	the
	ECETA;
	Opposition to 	Supplement to 	Petition for
	Change
	in Unit 	Deter-
mination 	filed
	on
April 	6, 	1978,
	by
	the
	District.
After a careful 	analysis of these documents, 	the following findings 	and
	deter-minations are
made: 	The
	petitioner seeks to 	include in the currently 	established
unit 	the following 	positions:
Sullll1er
	school 	teachers
	who
	are regular classroom teachers
in the
	District,
	Psycho-motor Specialists,
	Language Arts
Specialist,
	Home
Teachers, 	Hourly Rate Teachers, 	Counselors,
Psychologists, 	Reading Coordinators, 	Speech Therapy Director,
Directors,
	and
	Bilingual 	Resource Specia1ist.
Board 	Resolution
	#6
	(copy enclosed), adopted
	by
	the
	EERB
	in July, 	1976, 	outlines
the circumstances under which 	the Board
wi11
	entertain a petition for change 	in
a unit.
	The
	Parties 1 position papers 	indicate they join in requesting 	the 	in-
clusion of three of the positions 	supra., 	in the established unit. 	Resolution
#6
	c1ear1y permits 	such a request and
	therefore,
	by
	this 	letter,
	the
	PERS
acknowledges the agreement of the parties 	to include the positions of: 	Sumner
School 	Teachers
	who
	are regular classroom teachers 	in the District, 	Psycho-motor
Specialists,
	and Language Arts 	Specialist, 	in the established unit.

Charles Gustafson/Christina
	Dyer
El
	Centro
	School
	District
April
	25,
	1978
Page
	2.
The
	position of Bilingual 	Resource Specialist appears to
	be
a
newly
created,
position
	and
	therefore
	falls
	under
	Item
	2 of Resolution #6. 	A
Board
	Agent
will
	be
	contacting the 	parties regarding the scheduling of
an
	informal 	con-
ference 	to discuss
	this
	position.
The
	remaining 	positions of
Home
Teachers,
	Hourly Rate Teachers, 	Counselors,
Psychologists,
	Reading
	Coordinators,
	Speech
Therapy Director
	and
	Directors,
	were
specifically
	excluded
	by
	the 	parties
	from
	the agreed
	upon
	unit.
	The
	portion of
the
	petition
covering these positions
does
	not
meet
	the
	criteria
	outlined in
Resolution
	#6 and
	therefore cannot
	be
	entertained
	by
	the
	PERS.
You
may
	request a review of 	this decision within ten calendar
days
	of 	receiptof
	this
	letter
	by
	filing
	a request addressed to the
	PERS
	Executive Director
in Sacramento. 	This 	request shall
	state
	fully 	the facts
	upon
which
	the appeal
is
	based. 	Copies 	of
any
	appeal
	must
	be
	served
	upon
	all 	other parties 	to 	the
action with a
copy
	to 	this office.
Very
	truly
yours,
'.,,
✓
-:,
Frances
	A.
	Kreiling
Regional 	Director
FAK:rjw
Enclosure