Richmond Unified School District (PERB A199E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SCHOOL
	SUPERVISORS 	ASSOCIATION,
Employee
	Organization,
and
PUBLIC
	EMPLOYEES
	UNION,
	LOCAL
ONE,
Employee
	Organization,
and
RICHMOND
	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
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____________________ )
Case
	No.
	SF-UM-440
Administrative
	Appeal
PERB
	Order
	No.
	Ad-199
November
	6,
	1989
Appearances: 	William
	F. 	Young,
	Representative, 	for
	School
Supervisors 	Association;
	Michael
	W.
	Roman,
	Attorney,
	for 	Public
Employees 	Union,
	Local
	One.
Before 	Craib,
	Shank 	and
	Camilli,
	Members.
DECISION
CAMILLI, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	School
Supervisors 	Association 	(Association) 	to 	the 	Administrative
Determination, 	attached 	hereto, 	of
	a 	PERB
	regional
	director.
The
	PERB
	regional 	director 	partially
	dismissed 	the
	unit
modification
	petition
	because 	the 	Association
	has
	no
	standing
under
	PERB
	Regulation 	32781(a)(1),
	(b) (2)
	or
	(3)
1
to
	petition
	for
1PERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8,
	section
	31001
	et
	seq.
Regulation 	32781(a)(1), 	(b)(2) 	and 	(3)
	states:
(a)
	A
recognized 	or 	certified
	employee
organization
	may
	file 	with 	the 	regional

the 	requested 	change. 2 On 	appeal, 	the 	Association 	asserts 	that
PERB 	Regulation 	32781(a)(l), 	(b)(2) 	and 	(3) 	frustrates 	the
purposes 	of 	section 	3545(b)(2) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA) 3 in 	that 	the 	Association 	is 	denied 	its 	legal
office 	a 	petition 	for 	modification 	of 	its
unit(s):
(1) 	To 	add 	to 	the 	unit
unrepresented 	classifications 	or
positions;
(b) 	A recognized 	or 	certified 	employee
organization, 	an 	employer, 	or 	both 	jointly
may 	file 	with 	the 	regional 	office 	a 	petition
for 	unit 	modification:
(2) 	To 	make 	technical 	changes 	to
clarify 	or 	update 	the 	unit
description;
(3) 	To 	resolve 	a 	dispute 	as 	to
unit 	placement 	or 	designation 	of 	a
new 	classification 	or 	position.
2on 	October 	3, 	1989, 	the 	Association 	filed 	a 	Request 	for
Recognition 	under 	PERB 	Regulation 	33050. 	This 	request 	is
currently 	under 	review 	by 	the 	PERB 	Representation 	Division.
3EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Government 	Code 	section 	3545 	states:
(b) 	In 	all 	cases:
(2) 	a 	negotiating 	unit 	of 	supervisory
employees 	shall 	not 	be 	appropriate 	unless 	it
includes 	all 	supervisory 	employees 	employed
by 	the 	district 	and 	shall 	not 	be 	represented
by 	the 	same 	employee 	organization 	as
employees 	whom 	the 	supervisory 	employees
supervise.
2

right
	to 	represent
	"all
	supervisory
	employees 	employed
	by
	the
district."
	We
	find
	no
	merit
	in
	the
	Association's
	argument.
After
	reviewing
	the
	entire
	record, 	including 	the
	arguments
made
	by
	the 	Association
	on
	appeal,
	we
	find 	the
	PERB
	regional
director's
	discussion
	and
	conclusions
	to
	be
	free
	from
	prejudicial
error,
	and
	adopt
	the 	Administrative
	Determination 	as
	the
	decision
of
	the
	Board
	itself.
ORDER
Section
	11,
	items
	2
	through
	15
	of
	the
	petition
	in
	Case
No.
	SF-UM-440
	are
	hereby
	DISMISSED.
Member
	Shank
	joined
	in
	this
	Decision.
Member
	Craib's
	concurrence 	begins
	on
	page 	4.
3

Member
	Craib, 	concurring:
	I
	agree 	with
	my
	colleagues
	that
the
	School
	Supervisors 	Association 	(Association)
	has
	no
	standing
to
	petition
	for
	unit
	modification
	under
	Regulation
	32781,
subdivision 	(a), 	to
	include
	classifications
	currently 	represented
by
	Public
	Employees 	Union
	Local
	No. 	One
	(Local
	One).
	I
	write
separately
	only
	to 	explain
	why
	section
	3545
	is
	not
	frustrated
	by
the 	Association's
	lack 	of
	standing.
	The
	classifications,
	which
the
	Association
	claims
	to
	be
	supervisory,
	could
	be
	deleted
	from
Local
	One
	under
	the 	provisions
	of
	either
	Regulation
	33050,
subdivision
	(d)
	or 	Regulation
	32781,
	subdivision 	(b).
Regulation
	33050,
	subdivision
	(d)
	provides
	for
	a
nonexclusive
	representative 	to
	petition
	to 	represent
	employees
already 	represented
	by
	an 	incumbent
	exclusive
	representative.
1
By
	requiring
	the
	nonexclusive
	representative 	to
	file
	pursuant 	to
Regulation
	33050,
	we
	protect
	the
	incumbent
	exclusive
representative
	from
	having
	its
	unit 	disturbed
	during
	the
	contract
bar 	period.
	(See 	Department
	of 	Personnel 	Administration
	(1989)
PERB
	Decision
	No.
	773-S,
	at
	p. 	14.)
	Such
	a
	requirement
	also
assures
	that
	the 	nonexclusive
	representative
	has 	adequate 	proof
of 	support
	among
	the
	employees
	it
	seeks
	to 	represent.
	The
1
Regulation
	33050,
	subdivision
	(d)
	provides
	that:
A
	request 	to
	become
	the 	exclusive
representative 	of
	a
	group 	of
	employees
	who
are 	already
	members
	of
	a
	larger 	established
unit 	represented
	by 	an 	incumbent 	exclusive
representative 	shall
	be
	filed 	pursuant 	to
this 	Article
	and
	in 	accordance 	with 	the
provisions 	of 	Article
	7
	[Severance
Request]. 
4

current 	filing 	under 	Regulation 	32781, 	subdivision 	(a) 	provides
no 	such 	assurances 	that 	the 	affected 	employees 	desire 	to 	be
represented 	by 	the 	Association. 2
Regulation 	32781, 	subdivision 	(b) (4) 3 provides 	for 	unit
modification 	petitions 	to 	be 	filed 	by 	either 	the 	exclusive
representative 	or 	the 	employer 	to 	exclude 	classifications 	which
are 	supervisory. 	Thus, 	if 	the 	Richmond 	Unified 	School 	District
thought 	that 	the 	classifications 	in 	question 	were 	indeed
supervisory, 	it 	could 	petition 	to 	modify 	the 	unit, 	currently
represented 	by 	Local 	One, 	to 	exclude 	those 	classifications.
2on 	October 	2, 	1989, 	the 	Association 	filed 	a 	Request 	for
Recognition 	pursuant 	to 	Regulation 	33050. 	This 	request 	is
currently 	pending 	before 	the 	PERB 	Representation 	Division.
3Regulation 	32781, 	subdivision 	(b)(4) 	provides 	in 	pertinent
part:
(b) 	A recognized 	or 	certified 	employee
organization, 	an 	employer, 	or 	both 	jointly
may 	file 	. 	a 	petition 	for 	unit
modification:
(4) 	To 	delete 	classification(s) 	. 	which
are 	not 	appropriate 	to 	the 	unit 	because 	said
classification(s) 	. 	are 	. 	. 	supervisory
. 	provided 	that:
(A) 	The 	petition 	is 	filed 	jointly 	by 	the
employer 	and 	the 	recognized 	or 	certified
employee 	organization, 	or
(B) 	There 	is 	not 	in 	effect 	a 	lawful 	written
agreement 	or 	memorandum 	of 	understanding, 	or
(C) 	The 	petition 	is 	filed 	during 	the 	"window
period" 	of 	a 	lawful 	written 	agreement 	or
memorandum 	of 	understanding
5

By 	pursuing 	either 	of 	these 	avenues, 	the 	alleged 	supervisory
classifications 	may 	be 	removed 	from 	Local 	One. 	Therefore, 	the
mandate 	of 	section 	3545 	is 	not 	frustrated 	by 	the 	Association's
lack 	of 	standing 	under 	Regulation 	32781.
6

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
RICHMOND	
UNIFIED
	SCHOOL	
DISTRICT,
bployer,
and
SCHOOL 	SUPERVISORS 	ASSOCIATION,
Exclusive 	Representative.
)
)
)	
Case
	No. 	SF-UM-440
	(R-558A)
ADMINISTRATIVE
DETERMINATION
August
	24, 	1989
)
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__________________ )
BACKGROUND
On
	April
	11, 	1989,
	the
	School
	Supervisors 	Association
(Association)
	filed
	the 	instant 	unit 	modification
	petition
pursuant
	to
	PERB
	regulation 	32781(a)(l), 	(b)(2)
	and 	(3)
1
seeking
1
Regulation
	32781(a)(l),
	(b)(2)
	and
	(b)(3)
	provide:
(a)
	A	
recognized or
	certified
	employee
	organization
may
	file
	with 	the 	regional
	office
	a
	petition
	for
modification 	of
	its
	unit(s):
(1)	
To
	add
	to 	the
	unit
	unrepresented
classifications
	or
	positions;
(b)
	A
	recognized 	or
	certified
	employee
	organization,
an 	employer,
	or
	both
	jointly
	may
	file
	with 	the 	regional
office
	a
	petition
	for 	unit 	modification:
(2)
	To 	make
	technical 	changes
	to 	clarify
	orupdate 	the 	unit 	description;
(3)
	To
	resolve
	a
	dispute 	as 	to 	unit
	placement 	or
designation
	of
	a 	new
	classification
	or 	position;
1

to
	add
	classifications
	to
	the 	supervisory
	unit
	it
	represents 	in
the
	Richmond
	Unified
	School
	District
	(District).~	
In
	Section	
11
of 	t~e
	petition
	form,
	the
	Association
	descr1b~d
	t~e 	rnod~fication
reqrested
	as 	follows:
,·	
I
1.	
Add	
Substitute,
	Temporary 	and 	Limited
	Term
	Supervisor
2.	
Add	
Cook/Manager
	I,
	School
	Lunch
3 . 	Add 	Food
	Production
	Leadworker
4.	
Add	
Gardener 	Leadworker
5.	
Add	
Gardener
	Operator
	Leadworker
6.	
Add	
Head
	Custodian
	I
	(Elementary)
7 • 	Add	
Painter	
Leadworker
8.	
.Add	
Senior
	Locksmiths
0 	Add
	Senior
	Warehouseworker
l O.	
.Add
	Field
	Maintenance 	Groundskeeper 	Leadworker
11
. 	Add
	Instructional 	Materials
	Technician
1 2 . 	Add
	Senior
	Buyer
1
3.	
.Add	
Senior
	Computer
	Operator
14.	
Add
	Senior
	Irrigation
	Equipment
	Technician
15.	
Add
	Senior
	Office
	Machine 	Repairworker
In
	their
	responses
	to
	the
	petition,
	the
	District
	and
Public
	Employees 	Union,
	Local
	One
	(Local
	One)
3
both
	stated 	that
the
	classifications 	listed
	in
	Section
	11, 	Items 	2-15
	of 	the
petition
	are 	currently 	included
	in 	the
	classified 	units
	Local
	One
represents 	in
	the
	District.
4
z
The
	description 	of 	the 	supervisory 	unit 	in 	the
	most
	recent
collective
	bargaining 	agreement
	(1987-1989) 	between
	the
Association
	and
	the
	District 	indicates 	that
	it
	includes
	•[a]ll
permanent
	classified
	employees•
	in 	the 	supervisory
	positions
listed,
	and
	"[a]ll 	other
	employees
	are 	excluded.•
...
~he
	As-~ociation
	listed
	Local
	One 	on
	the
	petition
	form
	as
	an
organization
	known
	to
	have 	an
	interest
	in 	representing
	employees
covered
	by
	the 	petition.
~his
	information
	is
	confirmed 	by 	the 	collective 	bargaining
agreement 	between 	the 	District
	and 	Local
	One 	on
	file 	with 	this
office. 
2

An
	Informal
	Settlement 	Conference/Investigation
	was
	held
	on
July
	11,
	1989.
	At
	that
	time,
	the 	Association
	did 	not
	dispute
that
	t~e
	c:assiflcatlons
	l~sted	
~~	
Section
	::,
	Items 	2-15
	were
currently 	in
	bargaining 	units 	represented
	by
	Local
	One.
DISCUSSION
It
	is
	undisputed
	that
	the
	classifications 	listed 	in
Se¢tion
	11,
	Items
	2-15
	of 	the
	unit
	modification
	petition 	are
curFently
	in
	bargaining 	units 	represented
	by
	an
	employee
organizat~:~ 	other
	than
	the
	Association,
	1.e.,
	Local
	One.
	Since
these 	positions
	are
	clearly 	neither
	unrepresented
	nor
	new
classifications,
	and
	since
	their	
addition
	to
	the
	supervisory
	unit
would
	not
	~~alify
	as
	a
	mere
	techn~cal
	change
	to
	clarify 	or
	update
the
	unit 	description,
	the 	Association
	has
	no
	standing 	under
regulation
	32781(a)(1),
	(b)(2)
	or
	(3)
	to
	petition 	to
	add 	them
	to
their
	unit.
	Therefore,
	the
	petition
	as
	it
	regards 	the
	addition
of
	the
	classifications
	in 	Section
	11, 	Items 	2-15
	is
	dismissed.
As
	noted 	above,
	substitute,
	temporary 	and
	limited
	term
supervisors 	are 	currently
	excluded
	from
	the 	supervisory
	unit
pursuant 	to 	the
	unit
	description 	contained
	in
	the
	collective
bargaining
	agreement
	between
	the 	Association
	and
	the
	District.
Therefore, 	the 	Association's 	petition 	to
	add
	these
	positions 	to
their 	unit
	under
	PERB
	regulation 	32781(a)(1)	
is	
an
	appropriate
filing.
	Since
	this
	issue
	was
	not 	resolved
	at
	the 	Informal
Settlement 	Conference/Investigation,
	it
	will
	be 	decided
	in
	a
formal 	heari=g 	before
	PERB.
3

CONCLUSION
For
	the
	reasons
	stated
	above,
	Section
	11,
	Items
	2-15
	of
	the
unit
	modificatior.
	pe~ition
	are
	DISMISSED.
Right
	of
	Appeal
I An
	appeal
	of
	this
	decision 	to
	the
	Board
	itself
	may
	be	
made
within 	ten
	(10)
	calendar
	days 	following
	the 	date
	of
	service
	of
this
	decision
	(PERB
	regulation
	32360).
	To
	be
	timely
	filed,
	the
original
	and
	five
	(5)
	copies 	of
	any
	appeal
	must 	be
	filed	
with	
the
Board
	itself
	at
	the 	following 	address:
Members,
	Public
	Employment
	Relations
	Boa=d
1031
	Eighteenth
	Street, 	Suite
	200
Sacramento,
	CA
	95814-4174
A	
document
	is
	cons!dered
	"filed"
	when
	actually
	re:e~ved 	before
the 	close
	of 	business
	(5:00 	p.m.)
	on
	the
	last
	day
	set
	for
	filing,
or
	when
	sent	
by	
telegraph
	or
	certified
	or
	Express
United 	States
	mail,
	postmarked
	not
	later
	than 	the
	last
	day
	set
for
	filing
	...
"
	(regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	shall
	apply.
The
	appeal 	must
	state
	the 	specific 	issues
	of 	procedure,
fact,
	law
	or
	rationale 	that
	are
	appealed
	and 	must
	state
	the
grounds 	for 	the 	appeal 	(regulation
	32360(c)).
	An
	appeal
	will
	not
automatically 	prevent 	the
	Board 	from
	proceeding
	in
	this	
case.	
A
.party
	seeking
	a
	stay 	of
	any
	activity
	may
	file
	such
	a
	request
	with
its
	administrative 	appeal,
	and 	must
	include
	all 	pertinent 	facts
and
	justification 	for 	the 	request 	(regulation 	32370).
4

•
•
If	
a
	timely
	appeal
	is
	filed,
	any
	other
	party
	may
	file
	with
the
	Board
	an
	original
	and
	five
	(5)	
copies 	of
	a
	response
	to
	the
ap;ea:
	within 	ten
	(10)
	calendar
	days
	following
	the
	date
	c~
service.
of 	the
	appeal
	(regulation 	32375).
Service
All
	documents
	authorized
	to
	be
	filed
	herein
	must
	also
	be
"served"
	upon
	all
	parties 	to
	the
	proceeding
	and
	on
	the
	San
Frapcisco
	regional 	office.
	A
	•proof 	of 	service•	
must 	accompany
each
	copy 	of
	a
	document
	served
	upon
	a
	party
	or
	filed
	with
	~he
Board
	itself
	(see
	regulation
	32140
	for 	the 	required
	center.ts
	and
a
	sample 	form).
	The
	document
	will
	be
	considered
	properly
"served"
	when
	personally 	delivered 	or 	deposited 	in 	the
	fi::-st-
class
	mail 	postage
	paid
	and
	properly
	addressed.
r
(
lt
	.
5