Decision A216E – San Jose-Evergreen Community College District
SF-AC-23
Decision Date: October 29, 1990
Decision Type: Administrative Appeal
Description: The Board granted an amended certification request arising from a local ‘s disaffiliation from a state and national union (CTA and NEA). The Board held that the effective date of affiliation/disaffiliation, where there is not question of representation raised by the change, is the date of the vote, or other proper procedure, taken by the union. Therefore, all rights held by the original union inhere to the successor union as of the change date, including the right to dues deductions from the employer. However, · the employer, when faced with competing claims on dues deduction rights, may take reasonable steps, such ·as placing the disputed dues in an interest bearing account, to avoid improper disbursement pending the Board ‘s decision.
Perc Vol: 14
Perc Index: 21203
Decision Headnotes
1503.02000 – Regulations Considered (By Number)
32763 - PERB has discretionary authority to conduct a hearing where there are factual issues that are inconsistent or diametrically opposed; p. 8.
1300.03000 – Amended Certification, Petition for
An amendment of certification is appropriate to reflect an affiliation or disaffiliation where there is no change in the basic identity of the representative chosen by the employees; p. 8, P.D. Such changes in certification are not appropriate where, as a result of that change, a question concerning representation is created; p. 8, P.D. The effective date of disaffiliation is the date of the union's decision to disaffiliate; p. 14. Disaffiliation where there is no QCR becomes effective as of the date of decision to disaffiliate.
1307.01000 – In General/Definition
The appropriate test for determining whether a question concerning representation exists in a case of affiliation or disaffiliation is the NLRB's traditional substantial continuity and due process analysis; pp. 9-10, proposed dec. The focus of the substantial continuity inquiry is to determine whether the affiliation substantially changed the union; p. 9, proposed dec. The focus of the due process inquiry is to determine whether the election was conducted with adequate safeguards, including notice of election, and adequate opportunity for members to discuss the election and reasonable precautions to maintain ballot secrecy; p. 9, proposed dec. In accord with the U.S. Supreme Court's decision in NLRB v. Financial Institution Employees, the local association is within its rights as an employee organization to limit the vote on the decision to affiliate or disaffiliate with another organization, to its members an employee organization to limit the vote on the decision to affiliate or disaffiliate with another organization, to its members exclusive representative include the originally certified union's interaction with management and the ability of the local members to control the actions of the union's officers; pp. 8-9. Certain changes due to an associations' disaffiliation, such as changes in dues structure, are inherent in a reorganization and should not be afforded significant weight.
1300.02000 – Request for Recognition
Employer has no authority to independently file a petition to raise the question of representation.
1107.18000 – Review of Findings Not Excepted To
Board may decide legal issues where they were neither argued to the hearing officer nor raised in the initial appeal.
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand
Employer acts at own peril if it refuses to bargain with or recognize the exclusive representative without demonstrating "by objective considerations that it has some reasonable grounds for believing the union has lost its majority status."
202.03000 – Dissolution or Inactive Status; Successor Unions; Affiliation
An amendment of certification is appropriate to reflect an affiliation or disaffiliation where there is no change in the basic identity of the representative chosen by the employees; p. 8, P.D. Such changes in certification are not appropriate where, as a result of that change, a question concerning representation is created; p. 8, P.D. The effective date of disaffiliation is the date of the union's decision to disaffiliate; p. 14. The appropriate test for determining whether a question concerning representation exists in a case of affiliation or disaffiliation is the NLRB's traditional substantial continuity and due process analysis; pp. 9-10, P.D. The focus of the substantial continuity inquiry is to determine whether the affiliation substantially changed the union; p. 9, P.D. The focus of the due process inquiry is to determine whether the election was conducted with adequate safeguards, the union; p. 9, P.D. The focus of the due process inquiry is to determine whether the election was conducted with adequate safeguards, ballot secrecy; p. 9, P.D. In accord with the U.S. Supreme Court's decision in NLRB v. Financial Institution Employees, the local association is within its rights as an employee organization to limit the vote on the decision to affiliate or disaffiliate with another organization, to its members only; p. 8, P.D. Factors considered significant in determining if there has been a change in identity of the exclusive representative include the originally certified union's interaction with management and the ability of the local members to control the actions of the union's officers; pp. 8-9. Disaffiliation where there is no QCR becomes effective as of the date of decision to disaffiliate.
401.11000 – Dues Deductions/Check Off/Agency Fee
An enployer, when faced with competing claims on dues deduction rights due to changes resulting from an affiliation/disaffiliation, may take reasonable steps to avoid improper disbursement pending the Board's decision; p. 21.