All notes for Subtopic 1200.03000 – Decertification or Disestablishment of Labor Organization
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2904Ea |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
The District cited no supporting authority for its argument that disestablishment infringes on its employees’ associational rights, and PERB has long since rejected such argument. (Redwoods Community College District (1987) PERB Decision No. 650, p. 67). (p. 42.) more or view all topics or full text. |
49 | 74 | 10/14/24 |
| 2904Ea |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
EERA section 3543.5, subdivision (d) makes it unlawful for an employer to “[d]ominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another.” Disestablishment is the standard remedy for domination violations, even when the domination has ended. (Clovis Unified School District (2024) PERB Decision No. 2904, p. 62. Thus, even were the Board to consider new evidence submitted by the District as part of its reconsideration request, showing that the District eventually discontinued paying stipends and release time to the Faculty Senate, disestablishment of the Faculty Senate would still be necessary because the District’s longstanding, significant monetary support to the Senate provided it with an expensive head start that no other organization could match. (Id. at pp. 58-63.) Indeed, disestablishment is far superior to ordering the employer to level the playing field by providing a competing organization with substantial monetary and in-kind support allowing it to build its organization to the same degree as the formerly dominated organization. (Id. at p. 59 [“To do so would simply replace one employer dominated employee organization with another.”].) (pp. 7, 12; see also p. 41 [disestablishment is necessary even when domination has ended]).) more or view all topics or full text. |
49 | 74 | 10/14/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
The Board disestablished all relationships between the Senate and the District having to do with District teachers’ terms and conditions of employment within the meaning of EERA section 3543.2., and extended that remedy to any successor, alias, or alter ego of the Senate, including Clovis Teachers Organization (CTO), an alter ego of the Senate, to the extent that CTO still exists or resumes activity. (Redwoods Community College District (1987) PERB Decision No. 650, pp. 4-5; see also Phillips Petroleum Co. (Kansas City) (1942) 45 NLRB 1318, 1359 [for those employer-dominated organizations no longer active, NLRB orders employer to refrain from recognizing organizations should they return to active existence].) (p. 63.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
In Antelope Valley Community College District (1979) PERB Decision No. 97 (Antelope), the ALJ may have partially misunderstood the meaning of disestablishment, believing it was impossible to issue such an order if the employee organization was not a party. (Id., attached proposed decision at p. 25.) Any such notion would be error, because it is possible to break the ties between two organizations by ordering one of them to break off ties. Indeed, both the Board and the ALJ in Antelope took steps toward doing so. (Id. at p. 27 & attached proposed decision at p. 25 [noting that disestablishment was “essentially accomplished” by ordering employer to cease dealing with dominated organization on matters within the scope of representation].) Here, where both the District and the Senate are parties, the Board ordered both parties to break off ties. (p. 62, fn. 15.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
Benign or malevolent intent is irrelevant to remedying employer domination. (Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 61(Redwoods) [“Section 3543.5(d) unqualifiedly forbids unlawful support, interference and the kinds of actions taken by the [employer] which otherwise tend to influence employee choice, be they benevolent or malevolent”].) Legally, intent is irrelevant to domination violations. And compliance with the law after a rival nonexclusive representative announced its organizing campaign would not have erased decades of entrenched favoritism and the resulting severely tilted playing field. As the NLRB noted in Electromation, Inc. (1992) 309 NLRB 990, disestablishment is proper “even if a concededly employer-dominated organization were altered to remove the elements of unlawful domination,” because removing such ongoing illegality does not transform the organization into a lawful one. (Id. at pp. 995-996, fn. 24, citing National Labor Relations Bd. v. Newport News Shipbuilding & Dry Dock Co. (1939) 308 U.S. 241.) The Board determined that to secure free choice in the District for the first time since EERA’s passage almost five decades ago, it must break the ties between the District and the Senate. (Redwoods, supra, PERB Decision No. 650, adopting proposed decision at pp. 63-64.) (pp. 60-62.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
In Redwoods Community College District (1987) PERB Decision No. 650 (Redwoods), PERB followed federal law and found that disestablishment is the appropriate remedy if a school district dominated a nonexclusive representative, whereas a cease-and-desist order is sufficient if the school district provided the nonexclusive representative with unlawful support or interfered with its formation or administration. (Id., adopting proposed decision at p. 62.) The Board clarified one point in Redwoods, supra, PERB Decision No. 650, which noted in passing that disestablishment may be less disruptive if the dominated organization is a “young” one without “stronger historical ties to employees or the [employer].” (Id., adopting proposed decision at p. 66.) Contrary to that suggestion, the Board clarified that disestablishment and the attendant disruption does not become improper if the dominated organization is more established, with stronger ties. (pp. 55, 59-60.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
Disestablishment is the appropriate remedy if a school district dominated a nonexclusive representative, whereas a cease-and-desist order is sufficient if the school district provided the nonexclusive representative with unlawful support or interfered with its formation or administration. (Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 62 (Redwoods); cf. Ventura Community College District (1994) PERB Decision No. 1073, adopting proposed decision at pp. 31-32 [cease and desist order appropriate where employer provided unlawful support, but domination not proven].) Disestablishment is a customary remedy for domination in the public sector, but it is very uncommon, because it is almost unheard of for a California public entity to engage in such conduct. Cases involving employer domination arise more commonly in the private sector, and disestablishment remains the NLRB’s customary remedy for such a violation. (See, e.g., T-Mobile USA, Inc. (2022) 372 NLRB No. 4, at p. 9, enfd. T-Mobile USA, Inc. v. NLRB (D.C. Cir. 2024) 90 F.4th 564 [affirming NLRB decision ordering disestablishment].) A disestablishment order is proper when a cease-and-desist order would be insufficient to overcome years (or decades) of advantages given to an employer-dominated organization. The NLRB and PERB long ago concluded that disestablishment is the only means to effectively remedy domination. (See, e.g., Jack Smith Beverages, Inc. (6th Cir. 1953) 94 NLRB 1401, 1404 (1951), enfd. 202 F.2d 100, 101 [“The [NLRB] continues to be of the opinion that the only effective remedy for a situation in which an employer is found to have unlawfully dominated a labor organization is to order the employer to disestablish the union.”]; Redwoods, supra, PERB Decision No. 650, adopting proposed decision at p. 62.) (pp. 55-59.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 2904E |
Clovis Unified School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
“Disestablishment” is a term of art that generally refers to “a complete and permanent termination of all relationships between an employer and the affected labor organization, and any successor[,] having to do with wages, hours, and working conditions,” but “does not necessarily mean complete dissolution of the organization.” (See, e.g., National Labor Relations Board (NLRB) Compliance Manual, § 10528.6, https://www.nlrb.gov/sites/default/files/attachments/pages/node-174/compliancemanual-october-2020.pdf [last accessed June 20, 2024].) Disestablishment is the standard remedy in the infrequent cases involving domination. Alternatively, disestablishment is the appropriate remedy where violations other than domination were egregious, recurrent, and persistent. (p. 4.) more or view all topics or full text. |
49 | 14 | 06/20/24 |
| 0960E |
Manton Joint Union Elementary School District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
An election should continue to be stayed only if the employees' dissatisfaction with their representative is in all likelihood attributable to the employer's unfair practices rather than to the exclusive representative's failure to respond to and serve the needs of the employees it represents; p. 4. In order to preserve the employees' free choice in the matter of representation, the Board may delay a representation election when there is a substantial risk that its outcome will be affected by conduct that is alleged to be an unfair practice when that charge is still pending before the Board; p. 5. Union failed to establish what benefit would accrue to the employees by requiring them to wait a full year following resolution of the unfair practice charge to vote in the decertification election contrary to Board policy to encourage prompt resolution of unfair practice charge to vote in the decertification election contrary to Board policy to encourage prompt resolution of more or view all topics or full text. |
17 | 24003 | 11/23/92 |
| 0650E |
Redwoods Community College District
1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization
If it is determined, under the totality of the circumstances, that an employer dominated an employee organization, disestablishment of the organization is the appropriate remedy; whereas a finding of mere interference or support for the organization may call only for a cease and desist order. more or view all topics or full text. |
12 | 19018 | 12/28/87 |