Decision 2904E – Clovis Unified School District

California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB accordingly considers federal precedent only for its potential persuasive value. (The Accelerated Schools (2023) PERB Decision No. 2855, pp. 20-31; Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; accord County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1073; Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391.) (p. 55, fn. 12.)

A “nonexclusive representative” is an employee organization that represents certain employees but is not an exclusive representative within the meaning of EERA section 3540.1, subdivision (e). (Clovis Unified School District (2021) PERB Order No. IR-63, p. 3, fn. 3.) (p. 6.)

A nonexclusive representative, whether or not it is seeking to ultimately be certified as an exclusive representative, has the right to receive advance notice of contemplated changes in fundamental employment terms or conditions, as well as the right to meet and discuss with the employer before it reaches a decision on such matters. (Alliance College-Ready Public Schools, et al. (2020) PERB Decision No. 2716, p. 20.) In such discussions, the employer need not engage in the full breadth of bargaining as it must with an exclusive representative, but it must listen and consider proposals in good faith. (Id. at pp. 23-24.) Furthermore, a nonexclusive representative has the right to information it needs to meet and discuss in good faith, to evaluate grievances, or to pursue administrative or legal remedies on behalf of employees. (Regents of the University of California (1999) PERB Decision No. 1354-H, adopting proposed decision, pp. 45-48; Santa Monica Community College District (1979) PERB Decision No. 103, p. 15.) However, because an employer has greater legal obligations to an exclusive representative than to a nonexclusive representative, the duty of strict neutrality does not always require an employer to afford the latter type of organization all the same privileges as the former. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 22-23, fn. 14; County of San Bernardino (2018) PERB Decision No. 2556-M, p. 10, fn. 11 & pp. 18-19; West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M, p. 22.) (pp. 6 & 45, fn. 11.)

A nonexclusive representative, whether or not it is seeking to ultimately be certified as an exclusive representative, has the right to receive advance notice of contemplated changes in fundamental employment terms or conditions, as well as the right to meet and discuss with the employer before it reaches a decision on such matters. (Alliance College-Ready Public Schools, et al. (2020) PERB Decision No. 2716, p. 20.) In such discussions, the employer need not engage in the full breadth of bargaining as it must with an exclusive representative, but it must listen and consider proposals in good faith. (Id. at pp. 23-24.) Furthermore, a nonexclusive representative has the right to information it needs to meet and discuss in good faith, to evaluate grievances, or to pursue administrative or legal remedies on behalf of employees. (Regents of the University of California (1999) PERB Decision No. 1354-H, adopting proposed decision, pp. 45-48; Santa Monica Community College District (1979) PERB Decision No. 103, p. 15.) However, because an employer has greater legal obligations to an exclusive representative than to a nonexclusive representative, the duty of strict neutrality does not always require an employer to afford the latter type of organization all the same privileges as the former. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 22-23, fn. 14; County of San Bernardino (2018) PERB Decision No. 2556-M, p. 10, fn. 11 & pp. 18-19; West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M, p. 22.) (pp. 6 & 45, fn. 11.)

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.” There are three ways an employer may violate this subdivision. Different standards apply depending on whether a charging party alleges that an employer has: (1) dominated or interfered with the formation or administration of an employee organization; (2) unlawfully contributed financial or other support to an employee organization; or (3) in any way encouraged employees to join any organization in preference to another. As a threshold matter, however, it is important to note that the employer’s intent is irrelevant to each of these three types of claims. (Clovis Unified School District (2021) PERB Decision No. IR-63, p. 18; City of Arcadia (2019) PERB Decision No. 2648-M, pp. 24-25; West Contra Costa County Healthcare District (2011) PERB Decision No. 2164-M, p. 6; Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at pp. 53 & 56-57; Santa Monica Community College District (1979) PERB Decision No. 103, p. 22.) (p. 36.)

EERA section 3543.5, subdivision (d) equally bars formation, domination, and interference with the administration of an employee organization. In assessing such claims, PERB considers whether the employer’s conduct tends to interfere with the employee organization’s ability to maintain an arm’s length relationship with the employer. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 18-19; City of Arcadia (2019) PERB Decision No. 2648-M, pp. 24-25; Azusa Unified School District (1977) EERB Decision No. 38, adopting recommended decision at p. 6, fn. 3.) The level of the employer’s involvement in the employee organization’s internal affairs is relevant, particularly in determining whether the conduct rises to the level of domination or merely constitutes unlawful support or interference with internal affairs. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 23; Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 62.) (pp. 37-38.)

District involvement in internal elections of the Senate, a nonexclusive representative, showed unlawful domination and interference with the Senate’s administration. (See Poway Unified School District (2015) PERB Decision No. 2441, adopting proposed decision at p. 45 [“an employer must not intervene to address the lawfulness of a union’s internal procedures affecting voting or to police the union’s actions, lest it be held liable for interfering in the administration of the union”].) (p. 39.)

In finding that District dominated the Senate, the Board found that these facts, among others, showed the lack of an arm’s length relationship, while noting that certain facts, by themselves, would be enough to prove domination: (1) District policy identified the Senate as the de facto official representative for teachers, although teachers never chose the Senate to be their exclusive representative; (2) the District’s organizational charts showed that the Senate president reports to the District superintendent; (3) the Senate president repeatedly consulted the District on questions that arose in running the Senate; (4) District administrators regularly attended Senate meetings, and the District approved Senate meeting minutes before the Senate shared them with teachers; (5) the District conducted internal Senate elections; (6) the District adjusted complaints and conducted investigations filed by and against senators and Senate officers in those capacities, including promising that the Senate would establish policies and procedures regarding attendance at Senate meetings; (7) in response to a Senate officer’s complaint, the District reached more than a dozen conclusions which show domination and interference with Senate administration, including promising that the District would work with the Senate to create a procedure for senate elections and setting an expectation for the Senate president to respond to inquiries within 24 hours; (8) the only binding agreement the District signed with the Senate was one that was financially useful to the employer; (9) the District provided extensive financial support to the Senate which it did not provide to other entities; and (10) the District sent e-mail defending its support of the Senate and castigating a rival nonexclusive representative for trying to enforce the law. (pp. 37-40.)

EERA section 3543.5, subdivision (d) bars an employer from contributing “financial or other support” to an employee organization. To effectuate EERA’s purposes, this provision allows an employer to “extend benefits to a labor organization in a spirit of cooperation,” provided it does not “lend so much assistance that the employee organization appears to become a ‘company union.’” (City of Arcadia (2019) PERB Decision No. 2648-M, p. 24 (Arcadia).) In applying this standard, PERB examines the totality of an employer’s conduct to determine whether its support for an organization would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. (Clovis Unified School District (2021) PERB Order No. IR-63 (Clovis), pp. 21-22, citing Arcadia, supra, PERB Decision No. 2648-M, pp. 24-25.) This is an objective test. (Clovis, supra, PERB Order No. IR-63, p. 22.) The key question is whether the employer provides support while engaging in preferential treatment, domination, or interference. (Id. at pp. 22-25 [explaining that EERA section 3543.5, subdivision (d) is not a flat ban on financial or other support to an employee organization, but rather a nuanced one that depends on the circumstances].) For example, an employer offering release time to one nonexclusive representative must offer it equally to all nonexclusive representatives. (Clovis, supra, PERB Order No. IR-63, pp. 25.) As another example, employer support is more likely to make an organization appear to be a company union (and therefore be unlawful) if the organization primarily draws its financial support from the employer rather than from its members. (Id. at p. 24, fn. 15.) In contrast, it is typically lawful for an employer to bargain release time or other support with an exclusive representative that also has substantial other resources, though the employer may not otherwise interfere with or dominate the organization. And an employer that does reach such a deal with an exclusive representative typically need not provide equal support to a nonexclusive representative seeking to decertify the exclusive representative, as a nonexclusive representative is definitionally not comparable to an exclusive representative. (Id. at p. 25.) Employer payments to a union do not create the impression of a company union, and therefore are lawful, if a court or governmental agency orders them to remedy legal violations. (pp. 41-42.)

Where the Senate is literally dependent on the District’s support and does not collect dues, the Senate’s lack of other resources alone defeats any defense to a domination charge the District and the Senate could otherwise attempt. (Clovis Unified School District (2021) PERB Order No. IR-63, p. 24.) This is true even without any competing organization present. (Id. at p. 22, fn. 14, quoting Azusa Unified School District (1977) EERB Decision No. 38, adopting recommended decision at pp. 6-7 [“it may be an unfair practice to render assistance to an employee organization even if there is no other organization in competition with it.”].) Even if member dues were the predominant source of the Senate’s resources, the District’s support would still be unlawful because it occurred in the context of pervasive domination and interference with Senate administration. Such conduct is inherently destructive of protected rights because it tends to chill employees from creating competing organizations. Finally, the District’s support was unlawful because it was unequal, as the District never offered support to other nonexclusive representatives. While an employer typically need not provide a nonexclusive representative with the same support it has bargained with an exclusive representative, if there are only competing nonexclusive representatives, the employer must treat them equally. (pp. 43-44.)

EERA section 3543.5, subdivision (d) prohibits an employer from “in any way” encouraging employees to join any organization in preference to another.” Therefore, whenever two employee organizations are competing for the right to represent the same employees, and neither organization is certified as the employees’ exclusive representative, the employer must remain strictly neutral. (County of Monterey (2004) PERB Decision No. 1663-M, adopting proposed decision at pp. 17-18; Clovis Unified School District (1984) PERB Decision No. 389, p. 7 [the appearance of a competing employee organization imposes on the employer an additional affirmative obligation of strict neutrality].) To establish a prima facie case that an employer violated this duty of strict neutrality, the test is “whether the employer’s conduct tends to influence [free] choice or provide stimulus in one direction or the other.” (Santa Monica Community College District (1979) PERB Decision No. 103, p. 22.) “An employer that does not maintain strict neutrality in the face of competing employee organizations is deemed to encourage employees to prefer one organization over another, in violation of employees' right to choose an organization free of employer interference. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 28-29, quoting Azusa, supra, EERB Decision No. 38, pp. 7-8.) Strict neutrality required the District to discontinue its financial and other support to the Senate, or to affirmatively make similar assistance available to all employee organizations. (Id. at pp. 28-29.) (pp. 44-46.)

Because an employer has greater legal obligations to an exclusive representative than to a nonexclusive representative, the duty of strict neutrality does not always require an employer to afford the latter type of organization all the same privileges as the former. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 22-23, fn. 14; County of San Bernardino (2018) PERB Decision No. 2556-M, p. 10, fn. 11 & pp. 18-19; West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M, p. 22.) (p. 45, fn. 11.)

Where the Senate is literally dependent on the District’s support and does not collect dues, the Senate’s lack of other resources alone defeats any defense to a domination charge the District and the Senate could otherwise attempt. (Clovis Unified School District (2021) PERB Order No. IR-63, p. 24.) This is true even without any competing organization present. (Id. at p. 22, fn. 14, quoting Azusa Unified School District (1977) EERB Decision No. 38, adopting recommended decision at pp. 6-7[“it may be an unfair practice to render assistance to an employee organization even if there is no other organization in competition with it.”].) Even if member dues were the predominant source of the Senate’s resources, the District’s support would still be unlawful because it occurred in the context of pervasive domination and interference with Senate administration. Such conduct is inherently destructive of protected rights because it tends to chill employees from creating competing organizations. Finally, the District’s support was unlawful because it was unequal, as the District never offered support to other nonexclusive representatives. While an employer typically need not provide a nonexclusive representative with the same support it has bargained with an exclusive representative, if there are only competing nonexclusive representatives, the employer must treat them equally. (pp. 43-44.)

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.)

EERA section 3543.6, subdivision (a) bars an employee organization from causing or attempting to cause an employer to commit an unfair practice, while subdivision (b) bars an employee organization from interfering with rights that EERA protects. The test for alleged interference by an employee organization is the same as the test for alleged interference by an employer (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, p. 13), except that in cases involving alleged threats or coercion, PERB recognizes that an employee organization does not have the same power over employees as an employer (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23). (p. 49.)

To establish a prima facie interference case, a charging party must show that the respondent’s conduct tends to or does result in some harm to protected rights. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 23.) A charging party need not establish that the respondent had an unlawful motive. (Ibid.) If the charging party establishes a prima facie case, the burden shifts to the respondent. (Ibid.) The degree of harm dictates the respondent’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the respondent must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (pp. 49-50.)

Faculty Senate violated EERA section 3543.6, subdivision (b) via four statements in which the Senate held itself out as the teachers’ sole representative, even though it was not an exclusive representative. The falsity of the Senate’s statements is one factor PERB considered in its interference analysis. (City of San Diego (2020) PERB Decision No. 2747-M, p. 37.) The most important reason PERB found the statements unlawful is that they were part of a synergistic effort by the District and the Senate, spanning many years but accelerated once a rival nonexclusive representative began organizing to: (a) create the perception of a single, exclusive employer-dominated employee organization, without being certified or recognized as an exclusive representative; and (b) grant that body preferential rights and support that would forestall unionization. This effort became a reality not only through preferential treatment and employer domination, interference, and support, but through repeated false statements to teachers and attacks on the rival nonexclusive representative for pointing out the illegality of the scheme. The entire stratagem was inherently destructive of protected rights, and, in the alternative, there was no operational necessity justifying it. (pp. 50-53.)

EERA section 3543.6, subdivision (a) bars an employee organization from causing or attempting to cause an employer to commit an unfair practice, while subdivision (b) bars an employee organization from interfering with rights that EERA protects. The test for alleged interference by an employee organization is the same as the test for alleged interference by an employer (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, p. 13), except that in cases involving alleged threats or coercion, PERB recognizes that an employee organization does not have the same power over employees as an employer (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23). (p. 49.)

Non-customary remedies are appropriate in a variety of circumstances, including where conduct was egregious, intentional, systematic, or repeated; or whenever customary remedies are insufficient, including but not limited due to the nature or duration of the conduct. (Regents of the University of California (2021) PERB Decision No. 2755-H, pp. 55-56.) Such circumstances notably include PEDD and EERA violations that have such long-lasting impacts on employee free choice that traditional remedies may be inadequate to restore such free choice. (Ibid.; Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 6 & adopting administrative determination at p. 4.) (p. 54.)

“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.)

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.)

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.)

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.)

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.)

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.)

PERB orders spoken notice if customary notice methods, in combination with other remedies, are insufficient. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 42.) Such a remedy was necessary given the egregious violations. The Board required the District to: (1) make a video recording in which the District superintendent reads the Appendix to the final Board decision, verbatim, with no other statement of any kind, and provides the rival nonexclusive representative with a true, unedited copy of the video; (2) show the video at a regular staff meeting of certificated employees at each school site (or at a special meeting, if and only if the rival nonexclusive representative and the District agree); and (3) provide the rival nonexclusive representative with at least 10 days’ notice as to when the District will show the video at each school site, and an opportunity to attend each viewing. The Board did not order the Senate to engage in a spoken notice reading, as it was doubtful that the Senate could accomplish such a task without assistance from the District, and the Board’s order prohibits the two entities from having any relationship regarding District teachers’ terms and conditions of employment. (p. 65.)

Pursuant to PERB Regulation 32700, subdivision (b) proof of support for a recognition request or certification petition under EERA normally remains valid for one year. The Board affirmed extension of that period to one year from the date PERB’s decision becomes final as a proper means to address the District’s domination, interference, and PEDD violations.) (p. 63.)