Decision A216E – San Jose-Evergreen Community College District

SF-AC-23

Decision Date: October 29, 1990

Decision Type: PERB Decision

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Perc Vol: 14
Perc Index: 21203

Decision Headnotes

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
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.

1307.00000 – REPRESENTATION ISSUES; QUESTION CONCERNING REPRESENTATION (QCR)
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.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.02000 – Request for Recognition

Employer has no authority to independently file a petition to raise the question of representation.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
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."

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.