San Mateo Community College District (PERB A133E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SAN
	MATEO
	COMMUNITY
	COLLEGE
DISTRICT,
Employer,
APPELLANT,
and
SAN
	MATEO
	COMMUNITY
	COLLEGE
FEDERATION
	OF
	TEACHERS,
	AFT,
AFL/CIO,
Employee
	Organization.
Case
	No. 	SF-D-89
	(R-517)
PERB
	Order
	No.
	Ad-133
Administrative
	Appeal
March
	3,
	1983
Appearances: 	William
	E. 	Brown,
	Attorney
	(Brown
	and
	Conradi)
for
	San 	Mateo 	Community
	College
	District.
Before
	Gluck,
	Ch~irperson, 	Jaeger
	and
	Morgenstern,
	Members.
DECISION
JAEGER, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board 	(PERB) 	on
	appeal 	by 	the
	San 	Mateo 	Community
College
	District 	(District)
	of 	the 	regional
	director's 	refusal
to 	stay
	certification
	of
	a 	new
	exclusive 	representative 	prior
to 	the 	expiration 	of
	a
	decertified 	representative's 	collective
agreement.
For
	the 	reasons
	set 	forth
	below,
	we
	affirm 	the 	regional
director's 	refusal 	to 	grant 	the
	District's
	request 	for
	a
	stay
of 	the
	certification
	of 	the
	new
	exclusive 	representative.
PROCEDURAL 	HISTORY
	AND
	FACTS
A
decertification 	election
	was
	held 	on 	May 	17 	and 	18, 	1982,
in 	which 	the 	incumbent 	California 	Teachers' 	Association

affiliate 	was 	defeated 	by 	the 	San 	Mateo 	Community College
Federation 	of 	Teachers 	(SMCCFT). 	Although 	there 	were 	no
objections 	filed 	to 	the 	election, 	on 	May 	27, 	1982, 	the 	District
wrote 	a 	letter 	to 	the 	San 	Francisco 	regional 	director
requesting 	that 	the 	certification 	of 	the 	new 	exclusive
representative 	be 	stayed 	until 	July 	1, 	1982, 	the 	date 	on 	which
the 	contract 	with 	the 	existing 	representative 	was 	to 	expire.
Its 	reason 	for 	requesting 	the 	stay 	was 	to 	avoid 	breaching 	the
dues 	deduction 	provision 	of 	the 	agreement.
The 	regional 	director 	denied 	the 	District's 	request 	based
on 	her 	interpretation 	of 	PERE 	rule 	32750.1 	That 	rule
provides:
The 	regional 	director 	shall 	certify 	the
results 	of 	the 	election 	or 	issue 	a
certification 	of 	an 	exclusive 	representative
if 	the 	results 	of 	the 	election 	are
conclusive 	and 	no 	timely 	objections 	are
filed.
She 	went 	on 	to 	conclude 	that 	"(i]nterpretation 	of 	Regulation
32750 	has 	led 	to 	a 	long 	standing 	PERB 	policy 	that
certifications 	be 	issued 	on 	the 	11th 	calendar 	day 	after 	the
election 	where 	no 	objections/challenges 	affect 	the 	results."
She 	further 	held 	that 	the 	Legislature, 	in 	providing 	for
decertification 	elections, 	must 	have 	intended 	that 	new
representatives 	could 	be 	certified 	prior 	to 	the 	expiration 	of
lpERE 	rules 	are 	codified 	at 	title 	8, 	California
Administrative 	Code 	section 	31001 	et 	seq. 	Although 	PERE
regulations 	were 	modified 	and 	renumbered, 	effective
September 	20, 	1982, 	PERE 	rule 	32750 	remains 	substantively
unchanged.
2

the 	pre-existing 	contract, 	since 	subsection 	3544.7(b) (1) 	of 	the
Educational 	Employment 	Relations 	Act 	(Act) 	provides 	that
decertification 	petitions 	be 	filed 	"less 	than 	120 	days, 	but
more 	than 	90 	days, 	prior 	to 	the 	expiration 	••. 	of 	the
agreement; 	• 	"
DISCUSSION
Subsection 	3543.l(d) 	provides:
All 	employee 	organizations 	shall 	have 	the 	right 	to
have 	membership 	dues 	deducted 	... 	until 	such 	time 	as
an 	employee 	organization 	is 	recoginzed 	as 	the
exclusive 	representative 	for 	any 	of 	the 	employees 	in
an 	appropriate 	unit, 	and 	then 	such 	deduction 	as 	to 	any
employee 	in 	the 	negotiating 	unit 	shall 	not 	be
permissible 	t 	to 	the 	exclusive-re 	resentative.
{Emphasis 	A
According 	to 	the 	express 	provisions 	of 	subsection
3543.l(d), 	once 	an 	employee 	organization 	has 	ceased 	to 	be 	an
exclusive 	representative, 	it 	is 	no 	longer 	entitled 	to 	have 	dues
deducted. 	Thus, 	the 	District's 	concern 	that 	the 	regional
director's 	refusal 	to 	grant 	a 	stay 	might 	subject 	it 	to
potential 	contractual 	liability 	is 	without 	merit.
Our 	determination 	in 	this 	matter 	is 	fully 	in 	accord 	with
applicable 	federal 	precedent.2 	The 	National 	Labor 	Relations
Board 	and 	the 	federal 	courts 	have 	long 	held 	that, 	once 	a 	union
has 	lost 	its 	representation 	status 	through 	the 	decertification
2It 	is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
federal 	labor 	law 	precedent 	when 	applicable 	to 	public 	sector
labor 	relations 	issues. 	Firefighters 	v. 	City 	of 	Vallejo 	(1974)
12 	Cal.3d 	608 	[116 	Cal.Rptr. 	507].
3

process,
	it
	has
	no
	right
	to 	enforce 	provisions
	of
	a
	collecttve
bargaining
	agreement.
	Retail
	Clerks
	v.
	Montgomery 	Ward 	&	
Co.
(7th
	Cir.,
	1963)
	316
	F.2d
	754 	[53
	LRRM
	2069];
	Milk
	and
	Ice
Cream
	Drivers,
	Local
	98
	v.
	McCulloch
	(D.C.
	Cir.,
	1962)
	306
	F.2d
763 	[50
	LRRM
	2322];
	Modine
	Manufacturing
	Co. 	(1954) 	216
	F.2d
326 	[35
	LRRM
	2003].
Since
	we
	find
	no
	basis
	for
	staying
	the
	certification
	of
SMCCFT
	as 	the
	exclusive
	representative
	of 	the
	District's
certificated
	employees,
	the
	regional
	director's
	denial
	of
	that
request
	is
	affirmed.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	as
	a
whole, 	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
San 	Mateo 	Community
	College
	District's
	request
	for
	a
	stay
	of
the
	certification
	in
	Case
	No. 	SF-D-89 	(R-517)
	is
	DENIED.
Chairperson
	Gluck 	and 	Member
	Morgenstern
	joined 	in
	this
Decision.
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