Oakland Unified School District (PERB A172E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
UNITED TEACHERS OF OAKLAND, 	AFT
LOCAL 	#771,
Petitioner,
and
OAKLAND 	EDUCATION ASSOCIATION,
CTA/NEA
Exclusive Representative.
Case No. 	SF-D-169
Administrative 	Appeal
PERB Order No. 	Ad-172
July 14, 	1988
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Appearance: 	Ramon E. 	Romero, 	Attorney, 	California Teachers
Association 	for 	Oakland 	Education Association, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	On March 29, 	1988, 	United Teachers of
Oakland, 	AFT Local 	771 	(UTO) 	filed 	a timely Decertification
Petition 	with 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board). 	UTO seeks 	to 	replace 	the Oakland Education Association,
CTA/NEA 	(OEA) 	as 	the 	exclusive 	representative of 	certificated
employees 	in 	the 	Oakland 	Unified 	School 	District 	(District).
The 	petition 	listed 	3,000 	as 	the 	approximate 	number 	of 	employees
in 	the 	unit. 	The District 	indicated 	that 	the 	unit 	size 	was
3,400. 	OEA notified PERB on April 	11 	that, 	according to 	its
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records, 	the unit 	size was 	in excess 	of 4,200 employees.
Investigation by 	the 	Board's 	agent 	revealed 	that 	the
discrepancy 	in unit 	size was 	caused by the parties' 	differing
interpretations 	as 	to 	(1) 	whether all 	substitute 	teachers
employed 	by 	the 	District 	were 	included 	or 	excluded 	from 	the
unit, 	and 	(2) 	even 	if 	the disputed employees were 	included 	in
the 	unit 	for 	contract 	administration purposes, 	whether 	all 	the
substitutes 	were 	eligible 	to vote.
On May 	17, 	the 	Board's 	agent 	issued 	the 	administrative
determination 	that 	is 	the 	subject 	of 	this 	appeal. 	The Board
agent 	ruled 	that, 	although 	all 	substitutes 	were 	included 	in 	the
unit 	for purposes 	of 	contract 	administration, 	only the
substitutes 	who worked 	at 	least 	10 	percent 	of 	either 	the
1986-87 	school 	year 	or 	the 	1987-88 	school 	year were 	eligible 	to
vote.
OEA 	filed 	a 	timely appeal 	of 	the 	determination 	and
requested 	a 	stay of 	the 	election 	itself. 	Pursuant 	to 	the
directed 	order, 	the 	election was held, 	but 	the ballots 	were
impounded by 	the 	Director 	of 	Representation pursuant 	to 	this
dispute 	and have 	not 	been 	counted.
The heart of 	OEA's 	appeal 	is 	that 	the 	final 	list of
eligible 	voters, 	totaling 3,751 	names, 	disenfranchised 	775
persons, 	as 	the bargaining unit 	size 	(including all
substitutes) 	is 	4,526 	employees. 	A subsidiary 	issue 	is 	whether
the 	30-percent 	proof 	of 	support 	showing 	(required by 	PERB
Regulation 	32770(b)) 	that 	accompanied 	the 	decertification
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petition 	should be 	calculated 	using 	the 	total 	unit 	size 	or 	the
total 	number 	of 	eligible 	voters 	as 	the 	divisor.1
On June 22 and 24, 	1988, 	OEA requested that 	its appeal 	in
this matter be withdrawn without prejudice, 	and 	that 	the 	stay
of 	the 	election be 	dissolved 	in order 	to permit 	the 	counting of
the ballots. 	That 	request 	was 	denied by 	the 	Board 	itself 	on
June 29, 	in PERB Order No. Ad-171. 	The Board had, 	in reviewing
the 	record, 	determined 	that 	the 	voting 	rights 	of 	the 	775
substitutes 	in 	question would be 	seriously 	compromised 	if 	the
ballots 	were 	counted 	and 	the 	Board 	subsequently 	determined 	that
the 	775 	should have been permitted 	to vote. 	Furthermore, 	the
rights 	of 	the 	775 	substitutes 	may not be 	raised by OEA 	if 	it
wins 	the ballot 	count. 	Therefore, 	the Board determined 	that
the best 	method 	to ensure 	that 	the 	rights 	of 	all 	parties 	and
employees were protected, 	regardless 	of 	the outcome of 	the
ballot 	count, 	would be 	for 	the 	Board 	to 	stay 	the ballot 	count
and 	then 	to 	rule 	expeditiously on 	the merits 	of 	OEA's 	appeal.
The major 	issue 	of 	OEA's 	appeal 	is 	the 	question of whether
Oakland Unified 	School 	District 	(1983) 	PERB 	Decision No. 	320
(Oakland 	I) 	overrules 	the 	10-percent 	rule 	established 	in Palo
Alto 	Unified 	School 	District/Jefferson 	Union 	High 	School
District 	(1979) 	PERB Decision No. 	84 	(Palo Alto/Jefferson).
The 	latter 	case held 	that, 	while 	substitutes 	could be 	included
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l1The	The 	Board 	agent 	determined 	that 	UTO had 	met 	the
30-percent 	standard 	showing 	no matter 	which 	number 	was 	used
OEA does 	not 	dispute 	this 	determination.
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in 	a bargaining unit 	along with 	full-time 	teachers, 	voting
eligibility 	was 	restricted 	to 	substitutes 	who had been 	employed
for 	at 	least 	10 percent of 	the prior 	or 	the 	current 	school
year. 	The purpose 	of 	the 	10-percent 	rule 	was 	to prevent
substitutes 	without 	an 	established 	interest 	in 	employment
relations 	with 	the 	district 	from being 	able 	to overwhelm 	the
votes 	of 	full-time 	employees 	and 	the 	substitutes 	who worked
more 	than 	10 percent 	of 	the 	school year, 	who had a greater
stake 	in 	the 	outcome 	of 	collective bargaining 	than 	those 	who
worked 	only 	minimally 	during 	the 	school 	year.2
OEA has 	not 	directly 	confronted 	the 	reasonableness 	of 	the
percentage 	of 	the 	10-percent 	standard; 	instead, 	OEA has 	argued
that 	the 	10-percent 	standard 	should 	not be 	applied 	at 	all
because 	Oakland 	I 	overruled 	Palo Alto/Jefferson 	and 	thus
abolished 	the 	10 percent 	rule.
We 	do 	not 	agree 	with 	OEA's 	interpretation 	of 	Oakland 	I.
That 	case 	dealt 	with 	a unit 	modification petition 	to add
2some 	states 	restrict, 	by statute, 	the 	eligibility of
some, 	if not all, 	substitutes 	to vote 	in a representation
election. 	(See, 	e.g., 	Indiana Stats, 	sec. 	20-7.5-l-2(e)
"School 	employee 	means 	any 	full-time 	certificated person 	in 	the
employment 	of 	the 	school 	employer;" 	Code 	of 	Iowa 	section
20.4(5) 	"The 	following public 	employees 	shall be 	excluded 	from
the provisions 	of this chapter 	. 	. 	. 	temporary public employees
employed 	for 	a period of 	four months 	or 	less." 	See also, 	Title
26, 	Revised Stats, 	of Maine secs. 	962.6(F) 	and 962.6(G);
Consolidated Laws 	of 	New York, 	Civil 	Service 	Law 	section
201,7(d).)The 	various 	states 	employ a 	variety of methods 	to
determine 	when eligibility attaches, 	but 	the 	common element 	in
all 	of 	the methods 	seems 	to be 	that 	the 	substitutes 	must have 	a
reasonable 	expectation 	of 	continued 	employment.
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substitutes 	to 	the 	certificated unit. 	The petition was 	granted
and 	the 	substitutes 	were placed 	in 	the 	unit. 	That 	substitutes
are 	in the unit 	is 	not 	in dispute here, 	however. 	A substitute
who 	teaches 	one 	day a year 	is 	covered by 	the 	collective
bargaining 	agreement 	negotiated by 	OEA 	for 	the 	entire 	unit.
Therefore, 	we 	read Oakland 	I as defining who 	is 	in the unit,
not who 	is 	eligible 	to vote. 	Voter 	eligibility 	is 	not
addressed 	in Oakland 	I and, 	thus, 	is 	still 	governed by Palo
Alto/Jefferson.
With 	respect 	to voter 	eligibility, 	OEA would 	include 	as
eligible 	to 	vote 	all 	employees 	who have 	worked 	for 	the
District. 	Under 	such a standard, 	the 	employees' 	choice of a
representative 	(or 	no 	representative) 	would be 	affected by
individuals 	who have 	no 	recent 	employment 	record with 	the
District, 	who no 	longer have 	an 	interest 	in 	future 	employment
and 	who may have 	secured permanent 	employment 	elsewhere. 	On
the 	record before 	us,3 	and 	in 	fashioning 	an 	eligibility
formula which will 	protect 	the 	voting 	rights 	of 	employees, 	the
purposes 	of 	the 	Educational 	Employment 	Relations 	Act 	can best
be 	achieved by 	affirming 	the 	Board 	agent's 	application 	of 	a
10-percent 	formula 	to 	limit 	voter 	eligibility 	to 	substitutes
who have 	a 	recent history of 	employment 	with 	the 	District. 	We
hold 	that 	in addition 	to 	the 	established 	interest 	in 	employment
3
3 We 	note 	the 	record 	is 	devoid of 	facts 	such 	as 	the work
histories, 	categories of substitutes, 	or other criteria to
support 	a 	different 	voter-eligibility 	formula.
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relations 	standard, 	consideration must be 	given 	to 	substitutes
who have 	a 	reasonable 	expectation 	of 	continued 	employment.
A 	second 	argument 	raised by OEA 	is 	that 	the 	30-percent
showing by 	the 	decertifying 	group must 	be 	based 	on 	30 	percent
of 	the 	"established unit." 	(See PERB Reg. 	32770(b).) 	Here,
the 	established 	unit 	numbers 	4,526 	persons.
While 	OEA's 	argument has 	some 	superficial 	appeal, 	we 	reject
it 	as being 	inconsistent 	with 	the 	reasoning 	set 	forth 	in Palo
Alto/Jefferson 	for 	the 	10-percent 	rule. 	If 	employees 	who
worked 	less 	than 	10 percent 	of 	the year 	were 	ineligible 	to vote
in 	a 	decertification election 	(or 	representation 	election) 	but
had 	to be 	considered 	in 	the 	formula 	for 	the 	30-percent 	showing,
the 	mere 	presence 	of 	those 	non-voters 	could 	result 	in 	the
petitioning 	union not being 	able 	to make 	the 	30 	percent
showing, 	even 	though 	it had 	signatures 	from 30 percent of 	the
eligible 	voters. 	For all practical purposes, 	this 	is 	akin to
giving 	the 	non-eligible 	employees 	veto power 	over 	representation
matters. 	We decline 	to 	read 	the 	regulations 	so narrowly as 	to
produce 	this 	anomaly. 	Hence, 	we concur 	that 	the 	30-percent
showing 	needs 	to be based 	on 	the 	number 	of 	eligible 	voters.4
Finally, 	OEA argues 	that, 	even if 	Palo Alto/Jefferson 	is
good 	law, 	nothing 	in 	that 	case 	dictates 	that 	it be 	applied 	to
decertification elections. 	In other words, 	the 	10 percent 	rule
4 In 	this 	case, 	we 	note 	that 	the 	Board's 	agent 	found proof
of 	support 	in 	the entire 	unit 	so this 	argument 	is moot.
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may be 	appropriate 	for 	initial 	representation elections, 	but
not 	for 	decertification 	elections.
This 	argument 	is 	without merit. 	Palo Alto/Jefferson
established 	a 	10-percent 	rule 	for 	representation 	elections 	— 	a
broad 	term 	that encompasses a decertification 	election. 	The
reasoning behind 	the 	10-percent 	rule 	is 	as 	valid 	in a
decertification 	election as 	it 	is 	in an 	initial 	representation
election. 	Therefore, 	based on the 	facts of 	this 	case, 	we will
apply 	the 	10-percent 	rule 	to determine 	voter 	eligibility 	in
this 	decertification 	election.
ORDER
The 	Board 	agent's 	determination 	is 	hereby AFFIRMED 	and 	the
appeal 	is 	DISMISSED. 	The 	stay of 	election 	is hereby DISSOLVED,
and 	the 	Director 	of 	Representation 	is 	ORDERED to proceed with
the ballot 	count.
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