Jefferson School District (PERB A066E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOY~...ENT
	RELATIONS
	BOARD
JEFFERSON
	SCHOOL
	DISTRICT,
Employer,
and
AMERICAN 	FEDERATION
	OF
	TEACHERS,
LOCAL
	3267,
Employee
	Organization,
APPELLANT,
and
JEFFERSON
	CLASSROOM
	TEACHERS
ASSOCIATION,
Employee
	Organization.
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Case
	Nos.
	SF-D-12;
	SF-D-41
(SF-C0-6;
	SF-CE-33)
PERB
	Order
	No. 	Ad-66
Administrative
	Appeal
June
	29, 	1979
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Appearances: 	William F.
	Kay,
	Attorney 	for
	Jefferson
	School
District;
	Stewart
	Weinberg,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg	
&	
Roger)
	for
	American
	Federation 	of 	Teachers, 	Local
3267;
	Duane
	Beeson,
	Attorney
	(Beeson, 	Tayer	
&	
Kovach)
	for
Jefferson
	Classroom
	Teachers
	Association.
Before 	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
Board
	(hereafter
	PERB
	or
	Board) 	on
	a
	motion
	by
	the
	American
Federation 	of 	Teachers, 	Local
	3267
	(hereafter
	AFT)
	to
	set 	aside
an
	executive
	director's
	order 	staying
	a
	decertification
election
	pending 	the 	resolution 	of
	mutual
	refusal 	to 	negotiate
charges
	filed	
by 	and
	against 	the 	Jefferson
	School
	District
(hereafter 	District)
	and
	the 	Jefferson
	Classroom 	Teachers

Association
	(hereafter
	JCTA)
.1	
For
	the
	reasons
	discussed
below,
	the
	Board
	remands
	this
	case
	to
	the
	San
	Francisco
regional
	director
	to
	conduct
	an
	investigation
	to
	determine
whether
	a
	continued
	stay 	is~appropriate
	or
	whether
	the
	election
should 	proceed.
FACTS
Following
	a
	consent
	election,
	on
	June
	21,
	1976 	JCTA
was
	certified
	as 	the
	exclusive
	representative
	of
	certificated
personnel 	in
	the
	District.
	The
	unfair
	practice
	charges
involved 	in
	this
	case
	were
	filed
	some
	five
	months
	later
	by
	the
District
	on 	November
	2,
	and
	JCTA
	on 	November
	15,
	1976.
	A
consolidated
	hearing
	on
	these
	charges
	was
	held 	in 	the
	spring 	of
lThe
	District
	alleged
	that
	JCTA
	had
	violated
	GovernmentCode
	section
	3543.6(c),
	which makes
	it
	unlawful 	for
	an
	employee
organization 	to:
Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
	good
faith
	with
	a
	public 	school
	employer
	of
	any
of 	the
	employees
	of
	which
	it
	is
	the
exclusive 	representative.
JCTA
	in 	turn 	alleged
	that
	the
	District
	had
	violated
Government 	Code
	section 	3543.S(c),
	which 	makes
	it
	unlawful
	for
a
	public
	school
	employer
	to:
Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
	good
faith
	with
	an
	exclusive 	representative.
All 	section 	references 	herein 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted.
2

1977, and the hearing officer's proposed decision issued on
July 13, 1978. 2
In the meantime, on September 23 , 1977, AFT filed its
first petition to decertify-JCTA. 3 The San Francisco
regional director directed a decertification election. This
decision was appealed by JCTA,and PERB's executive director
stayed the election pending resolution of the unfair practice
charges. In Jefferson School Dfstrict (1 2 /3 0/77) EERB Order
No. Ad-22 , the Board itself sustained the executive director's
decision.
A few weeks later, on February 6, 1978, the District
and JCTA entered into a written agreement which will expire on
June 30, 1979.
AFT's second decertificatio� petition4 was filed on
March 29, 1979. Although the petition was timely filed as
2The hearing officer sustained charges that the District
had refused to negotiate on 27 items. The charges against JCTA
were dismissed. Both the District and JCTA have filed
exceptions to the proposed decision.
3sF-D-12. Decertification petitions are authorized by
section 3544.5 which provides in pertinent part:
A petition may be filed with the board, in
accordance with its rules and regulations,
requesting it to investigate and decide the
question of whether employees have selected
or wish to select an exclusive
representative or to determine the
appropriateness of a unit, by:
. . . . . . . . . . . . . . . . . . . . . .An employee organization alleging that the
employees in an appropriate unit no longer
desire a particular employee organization as
their exclusive representative, . . .
3

required
	by
	section
	3544.7(b)5	
and 	was
	accompanied
	by 	more
than
	the
	requisite
	showing
	of
	support,6 	the
	San
	Francisco
regional
	director
	informed
	the
	parties
	that
	the
	stay
	of
election
	ordered
	by
	the 	executive
	director
	in
	1977 	would
	remain
in
	effect
	"until
	resolution
	of 	the
	pending
	unfair
	practice
charges."
DISCUSSION
Section
	3544.?(a)
	of 	the 	Educational
	Employment
Relations
	Act7	
prescribes
	in
	pertinent 	part:
Upon	
receipt
	of
	a
	petition 	filed
	pursuant
	to
Section
	3544.3
	or 	3544.5, 	the
	board
	shall
conduct 	such
	inquiries
	and
	investigations
	orhold 	such
	hearings
	as
	it
	shall
	deem
necessary 	in 	order 	to
	decide 	the 	questions
raised
	by
	the
	petition.
	The
	determination
5section
	3544.7(b)
	provides 	in
	pertinent 	part:
No
	election 	shall
	be
	held
	and
	the
	petition
shall
	be
	dismissed
	whenever:(1)
	There
	is 	currently 	in
	effect
	a
	lawful
written
	agreement
	negotiated	
by 	the
	publicschool
	employer
	and
	another
	employee
organization
	covering
	any 	employees
	included
in 	the
	unit
	described 	in 	the 	request 	for
recognition,
	or 	unless 	the 	request 	for
recognition
	is 	filed 	less
	than
	120
	days, 	but
more
	than
	90
	days,
	prior
	to 	the
	expirationdate 	of 	the 	agreement.
6section
	3544.S(d)
	requires 	decertification
petitions
	to 	be:
...	
supported
	by
	evidence 	of 	support 	such
as
	notarized
	membership
	lists,
	cards, 	or
petitions
	from 	30
	percent 	of 	the 	employees
in 	the 	negotiating 	unit 	indicating 	support
for 	another 	organization 	or 	lack 	of 	support
for 	the
	incumbent
	exclusive 	representative.
7EERA
	is 	codified 	at
	Government 	Code
	section
3540
	et 	seq.
4

of
	that
	board
	may
	be
	based
	upon
	the
	evidence
	adduced
in
	the
	inquiries, 	investigations,
	or
	hearing; 	provided
that,
	if
	the
	board
	finds
	on
	the
	basis
	of 	the 	evidence
that
	a
	question
	of
	representation
	exists,
	or
	a
question
	of
	representation
	is
	deemed
	to
	exist
	pursuant
to 	subdivision
	(a)
	or
	(b)
	of
	Section
	3544.1,
	it
	shall
order
	that
	an
	election-shall
	be
	conducted
	by
	secret
ballot
	and
	it
	shall
	certify
	the
	results
	of 	the
election
	on
	the
	basis
	of
	which
	ballot
	choice
	received
a
	majority
	of 	the
	valid
	votes
	cast.
There
	are
	two
	statutory
	exceptions 	to
	this
	provision.
Representation
	and
	decertification 	petitions
	are 	barred
	when
the
	employer
	and
	the
	incumbent
	exclusive
	representative
	have
negotiated
	a
	written
	agreement
	(except 	during
	a
	specified
	open
period 	in
	the
	last
	year 	of 	the 	agreement).
(Sec.
	3544.7(b)(l).)
	Such
	petitions
	are
	also
	barred
	during
	the
year 	immediately 	following 	the
	recognition
	of
	an 	employee
organization
	as
	the 	exclusive
	representative.
(Sec. 	3544.
7 (b)
(2).)
PERB
	has 	broad
	powers
	over
	representation
matters,
8 	and
	is
	charged
	to
	use
	its
	powers
	to
	effectuate
	the
purposes 	of 	the
	Act.9	
A
primary 	goal 	of
	EERA
	is
	to
"provid[e]
	a
	uniform
	basis
	for 	recognizing 	the
	right
	of 	public
school
	employees 	to
	join 	organizations 	of
	their
	own
	choice."
(Sec. 	3540, 	emphasis 	added.)
	It 	is
	therefore 	appropriate 	for
PERB
	to
	delay
	decertification 	elections
	in 	circumstances 	in
which
	the
	employees'
	dissatisfaction
	with
	their 	representative
is
	in
	all
	likelihood 	attributable
	to 	the 	employer's 	unfair
8E.g., 	sections
	3541. 3
(a), 	(c), 	(e), 	(h), 	(1). 	See
	also
sections
	3544, 	3544.3, 	3544.5, 	3544.7, 	3545.
9section 	3541. 3 (n).
5

practices
	rather
	than
	to
	the
	exclusive
	representative's
	failure
to
	respond
	to
	and
	serve 	the
	needs
	of
	the
	employees
	it
represents.IO
This
	same
	principle
	(called
	the 	"blocking
	charge
rule")
	is
	used
	by
	the 	National
	Labor
	Relations
	Board
	(hereafter
NLRB)
	in
	the
	private 	sector.
	Courts
	have
	held
	that
	the
	NLRB
must 	examine 	each
	case
	to
	determine
	whether
	applying 	the
	rule
will
	serve
	or
	deter
	the
	purposes
	of
	the
	National
	Labor
Relations
	Act
	(29
	u.s.c.
	sec.
	151
	et
	seq.) 	to
	protect:
.••	
the
	exercise
	by
	workers
	of
	full
	freedom
of
	association, 	self-organization,
	and
designation 	of
	representatives
	of
	their
	own
choosing, 	for 	the
	purpose
	of 	negotiating
	the
terms
	and
	conditions
	of
	their
	employment
	or
other
	mutual
	aid 	or
	protection.
	(29
	u.s.c.
section
	151.)11
The
	NLRB
	may
	not
	invoke
	the 	blocking 	charge
	rule
mechanically.12	
Similarly,
	PERB's
	discretion
	to
	stay
decertification 	elections
	when
	unfair
	charges 	are
	pending
	will
not
	be
	exercised
	by
	rote.
	In
	this
	case,
	the
	most
	recent
determination 	to
	stay 	the
	decertification 	election
	simply
renewed
	the 	executive
	director's
	1977
	order.
	It
	appears
	that
no 	new
	investigation
	was
	undertaken
	to 	ascertain
	if
	changed
circumstances
	have 	removed 	any 	impediments
	to
	employee
	free
lOsee
	NLRB
	v.
	Big 	Three
	Industries, 	Inc. 	(5th
	Cir.
	1974)
497
	F.2d 	4TT86
	LRRM
	3031]. 	Also 	see 	Bishop 	v.
	NLRB
	(5th
	Cir.
1974) 	502
	F.2d
	1024 	[87
	LRRM
	2524].
llTempleton 	v. 	Dixie 	Color
	Printing
	Co. 	(5th
	Cir.
	1971)
444
	F.2d
	1064 	[77 	LRR~ 	2392].
12Id.
6

choice which may have been present when the stay was first
ordered.
Therefore the Board orders that this case shall be
remanded to the San Francisco regional director who shall
conduct an investigation to determine whether a danger remains
that the District's alleged unlawful conduct will so affect the
election process as to prevent the employees from freely
selecting their exclusive representative.
· ORDER
Based on the foregoing Decision and the entire record
in this case the Public Employment Relation$ Board ORDERS that
this case be and hereby is remanded to the San Francisco
regional director to conduct an investigation and determine
whether the decertification election in this matter shall
continue to be stayed.
By: Bar bara D. Moore, Member
/ R0iond J. Gor(zays, Merntkr
7

·•:.,ATE OF.CALlrO~NIA
-,UBL.JC :EMPLOYMENT Ri:!.ATSONS BOARD
.:m Francisco Regional' Office
177 Post SI'., 9th Floor
Sen Francisco, Cdifornio 	94108
(415) 557-1350
. May 8:,. 1979
Certified Hail.
Return Receipt Requested
Peter Hansen, 	Superintendent
Jefferson Elementary School District
101 Lincoln Avenue
Daly City, 	California 	94015
-Jefferson Classroom Teachers Association,
CTA/NEA
151 87th Street, 	Suite 11
Daly City, 	California 94015
Re: 	SF-D-41 	(R-130-A)
Jefferson Elementa-ry School District	,_
Dear Interested Parties:
... ---·-·-. ---·---- -----
E0MUN0 G. lll!OWN J;?•• c:;.,.,.,,""'r
i
The decertification petition filed by American Federation of Teachers
Local 3267 for 	the established certificated unit ~as received by this
office on March 29, 	1979.
Investigation of this matter established the following facts:
l) 	The current exclusive representative of the unit in question 	is
the Jefferson Classroom Teachers Association, 	CTA/NEA, which was
certified as 	the exclusive representative of 	the employees 	in the
claime<l unit on June 21, 	1976.
2) 	A written agreement currently e:-:ist:s between that exclusive rep-
resentative and.- the employer. 	This agreement expires June 	30, 	1.979.
This 	investigation has resulted in the administrative determination 	that 	the
limitations expressed in §33250 	(b) 	of the PERB Rules and Regulations do not
exist in this 	case. 	The decertification	, 	petition is therefore determined co
be timely filed. 	Review of the showing submitted by the American Federation·
of Teachers Local 3267 in support of that petition has resulted in 	the
administrative determination that 	it is sufficient to meet 	the requirements
of 	§33240 	(c) 	of 	the Rules and Regulations.
As you are no doubt aware, 	a valid decertification petition is 	currently
pending in the District. 	On September 23, 	1977, 	the American Federation
of Teachers Local 3267 	filed a decertification for 	the certificated unit
(SF-D-12). 	On October 18, 	1977, 	an election was directed 	to be held 	on
November 17, 	1977. 	The decision to di:::-ect 	the election was 	appealed by

Jefferson
Elementary School
District
Jefferson
Classroom
Teachers
Association,
CTA/NEA
May
	8,
	1979
Page
	2
the 	Jefferson
	Classroom
Teachers
Association.
	On
November
10,
	the
Executive Director
found
	that
resolution
of
	pending
unfair
practice
charges,
	SF-CE-33 and SF-C0-6,
	might
	significantly
influence the
	outcome
of
	the
	election
and
	therefore
	ordered
a
	stay
	of
	all
	further
	proceedings
in 	the representation
case
until
resplution
of the
pending
unfair practice
proceedings.
	The Board
	subsequently
upheld
	the
stay
	on December
	30,
	1977
(EERB
Order
No.
	Ad-22).
Because
	the
	unfair practice
	charges
	are
still
pending~
	the
stay
	is
	still
oper.3.tive.
	Any
	election
pursuant
to
	SF-D-12
	or
	SF-D-41
will
continue to
be 	stayed
until
resolution
of the
pending
	unfair practice
charges.
An
	appeal to
	this
	decision
may
be
made
within
10
	calendar
days
	of 	service
of.this
	decision
by
filing
	a
	statement of
	the 	facts
	upon
which
	the
	appeal
is
	based with the
PERB
Executive
Assistant
	to
	the
Board,
	Mr.
	Stephen Barber,
at
	923
	12th
Street,
	Suite
201,
	Sacramento,
	CA
	95814..
	Copies
	of
	any
appeal
must
be
	served
upon
all
other
parties
	to
	this
	action with
an
additional
copy
	to 	this
Regional Office.
·
. ·
Very
	truly
yours,
-	
~	
·- - .
James
	W.
	Tamm
Regional
Director
JWT:ma