What does the June 20, 2024 PERB Decision Mean?

The Public Employment Relations Board issued its Decision on the Unfair Labor Practice case that ACE originally filed against the district in 2021. The June 20th Decision was in response to our appeal of the original Judge’s decision issued on December 7th, 2023. The original Judge’s decision confirmed the violations that we alleged, but ACE did not feel that the remedies were sufficient to prevent future violations.

At ACE, we celebrate the June 20th decision as a powerful validation of the concerns we’ve been raising since 2021. Even if the District chooses to appeal this decision and further extend the timelines, there are important conclusions that can help us understand the environment we’ve been living and teaching in for decades. 

It’s important to point out that ACE didn’t want to have to file charges against our own employer. We always prefer to resolve our disagreements with the district amicably and we tried that in this case before we filed charges through PERB. That fact is shown in the PERB record.

When the district won’t willingly follow the law and respect our rights, ACE has the resolve and the resources to do what we can to hold them accountable. This isn’t easy, but it’s the right thing to do.

We strongly encourage all Clovis educators and community members to fully read the full PERB decision. 

Some may find the document to be long and full of legalese, so let’s break it down:

What are the key takeaways from the PERB decision?

• The District violated Clovis educators’ rights by establishing and controlling Faculty Senate to keep us from creating and operating an organization of our own choosing 
  • (Pages 2-5)
  • [T]he District’s conduct tended to deter or discourage employees from exercising free choice in deciding whether to become or remain members of an employee  organization or authorize representation by an employee organization” (Page 35)
• These were multiple, significant violations
  • PERB found that the “violations were egregious, recurrent, and persistent.” (Page 4)
  • This was one of the two most egregious cases that PERB has seen (Page 41)
• Our school district has been in violation of the law for a long time 
  • PERB found these same violations in 1984, but now it’s worse. (Page 38)
• The first decision (the one we appealed) by the Adjudicative Law Judge (ALJ) identified the violations correctly
  • As to the claims against the District that the ALJ sustained, the central ones were the District’s extensive violations of EERA section 3543.5, subdivision (d). The ALJ also found that the same conduct violated EERA section 3543.5, subdivisions (a) and (b) by interfering with protected employee rights and interfering with and/or denying ACE its organizational rights. (Page 34)
• The district doesn’t dispute that they violated the law
  • “The District ignores that the ALJ twice found the violations to be “extensive” and that the District filed no exceptions and therefore waived any challenge to those findings. But even were the argument not waived, the record overwhelmingly shows extensive domination and interference for the reasons analyzed at length above.” (Page 57)
  • As to the claims against the District that the ALJ sustained, the central ones were the District’s extensive violations of EERA section 3543.5, subdivision (d). The ALJ also found that the same conduct violated EERA section 3543.5, subdivisions (a) and (b) by interfering with protected employee rights and interfering with and/or denying ACE its organizational rights. 
  • “The District now concedes these violations.” (Pages 34-36)
• There is “overwhelming proof” of the violations
  • “None of these claims presents a close question, as there is overwhelming proof supporting each type of violation, and the three violations reinforce one another.” (Page 36)
  • “But even were the argument not waived, the record overwhelmingly shows extensive domination and interference for the reasons analyzed at length above.” (Page 57)
• The ALJ “erred” by not ordering disestablishment. Disestablishment is necessary to address the violations
  • “We conclude the ALJ erred in failing to order disestablishment.” (Page 4)
  • “[…] this case further illustrates why the NLRB and PERB long ago concluded that disestablishment is the only means to effectively remedy domination.” (Page 58) 
  • In 1984, “The remedial order in Clovis I did not order disestablishment, and instead sought to quell and remedy significant illegal conduct via lesser measures. Unfortunately, those measures proved ineffective in preventing recurrence. As detailed below, to refrain from ordering disestablishment in this case would be contrary to law and would abdicate our enforcement responsibility. We therefore rule in ACE’s favor on this central issue.” (Pages 4-5)

What happens now?

• Immediately after the decision the parties (meaning CUSD, ACE, and Faculty Senate) have a window of time to appeal. 
• The district is likely to appeal, and if they do, the decision won’t go into effect until after the appeal is resolved. 
• If no party appeals, the order will go into effect, requiring:
  • Disestablishment of the Faculty Senate
  • Reading and posting of a statement acknowledging the violations

What will happen to Faculty Senate?

• If any party appeals, Faculty Senate will likely remain in its present state until the appeal is resolved.
• If nobody appeals and the appeal window expires, Faculty Senate will essentially go away. They may decide to remain as a group, but they won’t be able to claim to represent teachers and the district won’t be able to treat them like an employee organization.

FAQs:

Why did ACE appeal the December 7th Decision?

• ACE agreed with the original findings of the Dec. 7th decision, but felt that ordinary remedies would not be enough to bring the District and Faculty Senate into compliance.
• ACE’s decision to appeal was also influenced by an unapologetic email from Faculty Senate following the Dec. 7th Decision that stated “without admission of any wrongdoing,” it planned to continue operating as it had been, thus choosing to continue to violate the Educational Employment Relations Act (“EERA”) as it had done for decades.
• In the appeal, ACE asked PERB to disestablish all relationships between the Senate and the District having to do with teachers’ terms or conditions of employment. 
• PERB upheld the request for disestablishment and the current Orders include Cease and Desist instructions for the District and Faculty Senate, as well as Affirmative Actions for both parties.

Did CUSD or Faculty Senate appeal the December 7th decision?

• Faculty Senate did not respond to the Dec. 7th PERB Decision or to ACE’s appeal.
• The District did not file their own appeal, but did respond to ACE’s appeal, “arguing that we should make no changes to the ALJ’s conclusions and proposed remedial order.” (Page 4).

What does “disestablish” mean? Why does the decision say, “disestablishment of the relationship?”

• PERB defines disestablishment as “a complete and permanent termination of all relationships between an employer and the affected labor organization, and any successor.”  
• When the ruling goes into effect, disestablishment means the District can no longer treat the Faculty Senate as an employee organization.
• Disestablishment would also prevent Faculty Senate from claiming to be a representative of teachers or discouraging teachers from engaging in protected union activity.

What was the “MOU” with Faculty Senate Mentioned in the Decision?

• The only agreement ever formalized between the District and Faculty Senate was a 2013-2014 “Memorandum of Understanding,” or “MOU,” that approved larger class sizes in K-3 classrooms in order to collect additional state funding (See Grade Span Adjustment for more information). With no corresponding solutions, support, or compensation, the District circumvented the law to “collectively bargain” a larger class-size with Faculty Senate and submitted the MOU to the state. In a legal, recognized, and non-company union, Clovis educators could have bargained for additional IAs or stipends to support classes over the statutory 24:1 in K-3. In Clovis, teachers and students got nothing in return for larger class sizes, primarily because the District used Faculty Senate to withhold information from us and deny us appropriate recourse.

What should Clovis Unified School District have done?

• The District should have allowed employees to create and run their own employee group – and were told to do so in 1984. Instead the District doubled down and “dominated” the employee group even more.

What should Faculty Senate have done?

• Faculty Senate should have stopped interfering with Clovis educators’ rights to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.
• Faculty Senate should have stopped accepting support and interference from the District once they became aware of the laws around employee rights and collective bargaining.
• Faculty Senate should have stopped attacking ACE for trying to enforce the law (Page 61)
• Faculty Senate should have refused to sign an MOU  for the 2013-2014 school year agreeing to class-size averages that required a “collectively bargained agreement.” Both the District and Faculty Senate members who signed the MOU admitted it was not collectively bargained. (Page 50) The ongoing impacts and effects of higher class sizes in Clovis should have been and still need to be collectively bargained.

Can we hold a vote to choose our representation now that Faculty Senate has been repeatedly found to be unlawful?

• Yes! The vote is going on now and is being conducted by petition. Click here to choose ACE as the strong, inclusive, independent, and most importantly, lawful union of educators in Clovis.

Have Questions?

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