Decision A514E – Dailey Elementary Charter School


Decision Date: April 18, 2024

Decision Type: Administrative Appeal

Description:  This representation case came before the Board on a purported appeal by non-party Darcey Severns from an administrative determination by PERB’s Office of the General Counsel (OGC) certifying Fresno Teachers Association (FTA) as the exclusive representative of all certificated teachers and other certificated classroom support professionals at Dailey Elementary Charter School. In the determination, OGC concluded that: (1) FTA submitted sufficient proof of support from a majority of employees in the proposed bargaining unit; (2) no other employee organization properly intervened to seek to represent any of the employees in the petitioned-for unit; (3) Dailey did not dispute that the proposed unit was appropriate; and (4) Dailey had not granted recognition to FTA. Thus, OGC certified FTA as the proposed unit’s exclusive representative pursuant to section 3544.1 of the Educational Employment Relations Act and PERB Regulation 33485.

After OGC issued the administrative determination, Severns, a teacher at Dailey, submitted a letter purporting to appeal the determination. Severns argued that there is no longer majority support for FTA and that she properly filed a petition for intervention.

Disposition:  The Board affirmed the administrative determination and adopted it as the decision of the Board itself, as supplemented by additional discussion.

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Decision Headnotes

1107.21000 – Administrative Appeals

When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (City and County of San Francisco (2022) PERB Order No. Ad-497-M, p. 15.) The Board applies an abuse of discretion standard to OGC’s proof-of-support determination and to OGC’s decision not to hold an evidentiary hearing. (p. 6.)

1300.02000 – Request for Recognition

Under EERA, an employee organization may become the exclusive representative for the employees of an appropriate unit by filing a request with a public school employer alleging that a majority of the employees in an appropriate unit wish to be represented by such organization, providing proof of such support to PERB, and asking the public school employer to recognize it. (§ 3544, subds. (a), (b); PERB Reg. 33050, subds. (a)-(c).) If PERB determines that the petitioning organization submitted adequate proof of support, the public school employer must grant the request for recognition unless, as relevant here, it doubts the appropriateness of the petitioned-for unit (§ 3544.1, subd. (a); PERB Reg. 33190, subd. (d)(3)(A)), or another employee organization either files with the employer a challenge to the appropriateness of the unit or submits a competing claim of representation within 15 workdays of the posting of notice of the written request for recognition (§ 3544.1, subd. (b); PERB Regs. 33070, subd. (a), 33190, subd. (d)(3)(D)). Here, the Board concluded that OGC properly certified FTA as the exclusive representative of the petitioned-for unit because FTA properly filed its petition for recognition with Dailey alleging that a majority of the employees in an appropriate unit wish to be represented by FTA; FTA filed its petition with OGC and supplied it with sufficient proof of support; Dailey did not doubt the appropriateness of the proposed unit; and no employee organization properly intervened to seek to represent any of the employees in the petitioned-for unit. (pp. 7-8.)

1306.04000 – Intervenor

An intervention petitioner must file with PERB proof of at least 30 percent support in the unit claimed to be appropriate. (PERB Reg. 33070, subd. (b).) The employee organization is required to serve the petition for intervention on all parties. (PERB Reg. 33070, subd. (c).) The Board found that an individual teacher’s petition for intervention was invalid because: (1) it was not filed with the employer within 15 workdays as required by PERB Regulation 33070, subdivision (a); (2) it lacked any proof of support, much less the 30 percent minimum in the unit claimed to be appropriate, as required by section 3544.1, subdivision (b) and PERB Regulation 33070, subdivision (b); and (3) the individual teacher was not an employee organization and did not file the petition for intervention on behalf of such an organization as required by section 3540.1, subdivision (d). (pp. 9-12.)

1306.01000 – In General; Requirements

PERB determines proof of support based on an employee list as of the time an employee organization files a petition for recognition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 16; Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, pp. 14-15 [“the initial determination regarding sufficiency of support for the recognition petition, once made, is determinative on the issue of majority support within the petitioned-for unit”]; Regents of the University of California (2017) PERB Order No. Ad-453-H, p. 21.) (pp. 7-8.)