Robert L. Mueller Charter School (PERB A320E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBERT L. MUELLER CHARTER SCHOOL,
Employer,
and
MUELLER CHARTER SCHOOL TEACHERS
ASSOCIATION, CTA/NEA,
Petitioner.
Case No. LA-RR-1079-E
Administrative Appeal
PERB Order No. Ad-320
March 5, 2003
Appearances: Parham & Rajcic by Jackson E. Parham and Stefanie K. Vandreuil, Attorneys,
for Robert L. Mueller Charter School; California Teachers Association by Rosalind D. Wolf,
Attorney, for Mueller Charter School Teachers Association, CTA/NEA.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal of a Board agent’s administrative determination that Robert L.
Mueller Charter School’s (Mueller) objections to the Mueller Charter School Teachers
Association, CTA/NEA’s (MCSTA) request for representation are without merit and that an
election should therefore be conducted. The request initially seeks to establish MCSTA as the
exclusive representative of the 41 certificated employees at the school but was amended orally
by MCSTA to exclude the eight certificated members of the 13-member Mueller Leadership
Council (Council). Representation is sought under Article 5, beginning with section 3544, of
the Educational Employment Relations Act (EERA).1
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
1

________________________
The Board agent’s administrative determination found the bargaining unit, excluding
the eight certificated members of the 13-member Mueller Leadership Council, to be
appropriate and ordered an election. Mueller claims that any bargaining unit is inappropriate,
because an inherent conflict of interest exists between EERA and the requirements of the
charter. Mueller requests that the election be stayed until the Board issues a final decision in
this matter. MCSTA has requested that the Board expedite this matter and in addition, seeks
an election for the unit described in its original petition. After review of all documents in the
record, including the administrative determination, Mueller’s appeal and request for stay of the
administrative determination, and MCSTA’s opposition to Mueller’s appeal and request for
stay, the Board affirms the Board agent’s administrative determination that an appropriate unit
exists consistent with the Board’s holding in Franklin-McKinley School District (1979) PERB
Decision No. 108 (Franklin-McKinley) and directs that an election be held in the unit
described in MCSTA’s original request for recognition. The Board shall also address below
the pertinent issues raised in the parties’ appellate documents.
BACKGROUND
MCSTA filed a petition to be exclusive representative for the 41
certificated employees of Mueller, the public school employer, selected pursuant to the Charter
Schools Act of 1992, Education Code section 47600 et seq.
On March 27, 2002,2
On May 1, the Board agent
determined that MCSTA had shown sufficient support to meet the requirements of PERB
3
2All dates refer to 2002 unless otherwise noted.
3See specifically Education Code section 47611.5.
2

________________________
Regulation 33050(b). 	requesting
that PERB conduct an election pursuant to PERB Regulation 33190.
4 By letter dated May 9, the Council submitted its decision5
Subsequent to
discussions among the Board agent and the parties, on May 28, Mueller filed an amended
decision in which it asserts that any PERB certification of a bargaining unit would conflict
with the provisions of Mueller’s charter
6
7 and violate Government Code section 1090.8 Mueller
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 33050(b) provides:
4
(b) A copy of the request and proof of majority support in the
unit claimed to be appropriate shall be filed with the regional
office concurrently with the filing of the request upon the
employer. Proof of support is defined in Chapter 1, Section
32700 of these Regulations.
There is no evidence in the record that the letter from the Council was accompanied by
a proof of service or even “cc” on the letter, i.e., that this decision was served on or in any way
provided to MCSTA.
5
6PERB Regulation 33190 provides, in pertinent part:
(a) Unless otherwise directed by the Board, within 15 days
following service of the Board's determination regarding the
adequacy of proof of support, the employer shall file a decision
with the regional office.
(b) Service and proof of service of the employer decision
pursuant to section 32140 are required.
(d) The employer shall use "Format B" if it has not granted
voluntary recognition. A request for a representation
investigation or hearing to resolve a unit dispute may be raised by
"Format B" or by the employer filing a subsequent petition
pursuant to section 33220.
(5) If no unit dispute exists, does the employer
request an election?
Neither party provided a copy of the charter before the administrative determination
was issued.
7
8Government Code section 1090 provides, in pertinent part:
3

________________________
thereby requested that PERB conduct an investigation and/or hearing into the matter. In its
amended decision, Mueller argued that although the teachers on the Council do not possess
management “titles,” they perform management and supervisory functions, analogous to the
facts in Rocklin Teachers Professional Association, CTA/NEA (Romero) (1995) PERB
Decision No. 1112. Mueller also claimed that even if certificated Council members were
excluded from the unit, there would exist a conflict of interest between those employees and
the unit because the Council members would be bargaining on their own behalf.
On May 29, the Board agent provided MCSTA with an opportunity to respond. On
May 30, MCSTA replied that Mueller’s response was a continuing effort to deny certificated
employees their rights under EERA. MCSTA refers to a previous unfair practice charge filed
with PERB (Case No. LA-CE-4125-E) in which the ALJ, in his proposed decision, found that
the Chula Vista Elementary School District, Mueller’s parent district, interfered with employee
rights in its conduct surrounding an election to determine the identity of the public school
employer under Education Code section 47611.5. 	MCSTA asserted that EERA section 3544.1
requires PERB to conduct the election, that Mueller’s objections are not appropriate objections
under EERA section 3545, and that there are alternative appropriate forums for Mueller to
raise its objections. MCSTA argues that PERB precedent has allowed employees to return to
the unit if they no longer work in an excluded position, citing Franklin-McKinley.
9
Members of the Legislature, state, county, district, judicial
district, and city officers or employees shall not be financially
interested in any contract made by them in their official capacity,
or by any body or board of which they are members.
9That case is currently on appeal before the Board.
4

________________________
Sometime in May 2002, by telephone, MCSTA’s counsel informed the Board agent that
MCSTA would be willing to exclude the eight certificated Council members from the proposed
unit in order to expedite the election. The Board agent, in turn, communicated this information
to Mueller. Mueller filed a reply on June 7, 2002, disputing the relevance of the reference to
LA-CE-4125-E and reiterating its contention that no unit would be appropriate because of the
inherent conflict with Mueller’s charter.
The Board agent found that under the Charter Schools Act of 1992, as amended
effective January 1, 2000, charter schools became subject to EERA. 	Should provisions of the
two laws appear to conflict, the Board is required to harmonize them. (See San Mateo City
School Dist. v. Public Employment Relations Bd. (1983) 33 Cal. 3d 850, 864-866 [191
Cal.Rptr. 800].) The Board agent noted that Mueller did not dispute the appropriateness of the
unit under EERA section 3545, but rather argued that the establishment of any unit was
inappropriate because it would conflict with the charter and with statutory conflict of interest
laws. According to the Board agent, such an argument, if accepted, would serve to deny all
unit employees their rights under EERA. In addition, such conflict already exists since the
Council already sets terms and conditions for certificated employees, including Council
members. Mueller’s objections are insufficient to deny unit employees their EERA rights and
are outside the scope of objections contemplated by PERB Regulation 33190. Consistent with
the Board’s decision in Franklin-McKinley, the Board agent ordered an election in the
certificated unit, which excluded teachers who serve on the Council.
10
10See also EERA section 3540.1(k).
5

MUELLER’S APPEAL AND REQUEST FOR STAY
In its appeal, Mueller alleges that the Board agent did not conduct an investigation or
hearing as required by PERB Regulations 33190 and 33220, but merely asked MCSTA for a
response. Mueller reiterates its position that Board certification of any bargaining unit would
conflict with Mueller’s governance structure under its charter. According to Mueller, this
could result in revocation of the charter. Mueller contends that exempting the teachers on the
Council does not resolve the conflict since the majority of the Council members are teachers.
Mueller states that the certificated Council members perform management functions but are
neither management nor supervisory employees; their primary duties involve teaching. As a
result, these teachers would directly benefit from negotiations conducted for the bargaining
unit. When their terms expire, they enter the bargaining unit. Any negotiated agreement
directly benefits them. Mueller further argues that MCSTA recognizes the conflict since it is
willing to exclude the certificated Council members from the bargaining unit. Because of this
conflict, Mueller contends that those Council members’ priorities will shift from representation
of students, teachers, parents and staff, as required by the charter, to solely the interests of
teachers. Mueller concludes that in effect, those teachers are negotiating with themselves.
Mueller is also concerned that excluding the certificated Council members violates EERA
since EERA section 3545 requires that the bargaining unit be comprised of all classroom
teachers employed by the public school employer.
Mueller further alleges that the requirement to bargain over mandatory issues violates
the Mueller charter because the charter requires the Council to independently make decisions
that represent all interests at Mueller, not just the teachers’ interests. However, as the teachers
make up the majority of the Council, they are adequately represented within the Mueller
6

governance structure without the need for collective bargaining. Mueller further speculates
that the teacher majority on the Council would appoint fellow teachers to represent Mueller’s
bargaining team against the exclusive representative. EERA does not prevent this outcome and
since it was only recently amended to include charter schools, there are no cases that address
this issue. Mueller further argues that there are no rules to prevent the Council from modifying
the unit to include its teacher members.
Mueller contends that certain provisions of the charter conflict with EERA. For
example, the charter provides for a grievance procedure intended to be the sole process for
resolving disputes. However, grievance procedures are mandatory subjects of bargaining
under EERA. Mueller therefore concludes that establishment of a bargaining unit coupled with
the requirement to negotiate a grievance procedure could nullify the charter. As the governing
document of Mueller, where the charter conflicts with a collective bargaining agreement, the
charter would have to be amended to accommodate the conflict or violate EERA. According
to Mueller, Education Code section 47611.5(d) requires that PERB take the Charter Schools
Act into account in deciding cases involving charter schools. Under the Charter Schools Act,
Mueller must provide a governance structure. PERB therefore cannot order Mueller to amend
its charter to accommodate the bargaining unit. In summary, Mueller believes that Board
certification of a bargaining unit would violate the charter and lead to revocation of the charter
as set forth in the provisions of the charter and in Education Code section 47607(b).
Mueller finally requests that the Board stay the election pending the Board decision on
this appeal.
7

________________________
MCSTA’S RESPONSE TO MUELLER’S APPEAL11
MCSTA objects to facts stated by Mueller in its appeal. First, the designation of
Mueller as the public school employer is currently on appeal before the Board from the
administrative law judge’s proposed decision in Case No. LA-CE-4125. 	Second, MCSTA
objects to Mueller’s characterization that excluding the Council teachers from the unit was
MCSTA’s acknowledgment that their membership in the unit was inappropriate. Instead, in a
telephone conversation with the Board agent, MCSTA offered to exclude the Council members
in order to expedite the election process. As a result of Mueller’s alleged misstatements,
MCSTA now wishes to withdraw its offer to exclude the Council members from the unit.
MCSTA further disputes Mueller’s contention that it lacks alternative means to raise its
concerns about the unit, citing PERB Regulation 32738, or a technical “refusal to bargain.”
(Jefferson School District (1980) PERB Order No. Ad-82; The Regents of the University of
California (1989) PERB Decision No. 722-H.) MCSTA also notes that Mueller inconsistently
alleges that the Council teachers are neither management nor supervisory employees but
perform management functions, and asserts that Mueller “cannot have it both ways.”
12
MCSTA contends that under PERB Regulation 33237 and the Board’s decision in
Pasadena Area Community College District (1990) PERB Order No. Ad-219 (Pasadena), the
Board agent has discretion to determine whether a hearing is necessary. Mueller’s stated
MCSTA provided a copy of the charter in its opposition to Mueller’s appeal and
request for stay. This is the first time this document appears in this proceeding. Interestingly,
there is no mention of the Council in this document.
11
In its request for recognition, MCSTA seeks to represent a unit of certificated
employees at Mueller and identifies Mueller as the employer. The ultimate identification of
the employer of the unit employees is therefore not at issue in this matter and will be
determined by the Board in another proceeding.
12
8

concerns about the unit are outside the scope of objections contemplated by EERA section
3545 and PERB Regulation 33190. Under these circumstances, according to MCSTA, the
Board agent properly concluded that no hearing was required.
MCSTA agrees that the Board must consider the Legislative intent behind the Charter
Schools Act when deciding cases involving charter schools. However, it sees that intent
differently. MCSTA contends that the Charter Schools Act envisioned teachers both as having
decision-making authority and as having rights under EERA and concludes that the Council
appropriately includes unit members. (See Educ. Code secs. 47601(d) and 47611.5(d).)
MCSTA concurs with the Board agent that the Council already sets terms and conditions of
employment affecting unit members.
MCSTA opposes a stay of the election because under Board precedent, absent an unfair
practice charge, the election should occur and any representation issues be decided after the
election. (PERB Reg. 32752; Capistrano Unified School District (1994) PERB Order No. Ad-
254; Long Beach Community College District (2000) PERB Order No. Ad-301.)
DISCUSSION
The Board affirms the Board agent’s holding that there exists an appropriate unit of
certificated employees but orders an election in the certificated unit as described in MCSTA’s
original request for recognition.
MCSTA, in its opposition to Mueller’s appeal, attempted to rescind its offer to exclude
the eight current certificated Council members from the unit. This offer occurred during a
telephone conversation with the Board agent before issuance of the administrative
9

________________________
determination. 	Although it would normally be appropriate to determine the composition of
the unit before holding the election, the following factors favor holding the election
immediately in the described unit: (1) the lack of a dispute over the essential nature of the unit
(all classroom teachers) as opposed to a possible dispute over the eligibility of specified
individuals to vote (see Palomar Community College District (1992) PERB Decision No. 947);
and (2) the need to prevent further delay of the exercise of unit members’ rights to vote for
representation. The Board therefore allows the election to take place in the certificated unit as
described in MCSTA’s original request for recognition. This order to proceed with the
election renders Mueller’s request for a stay moot. The Board’s decision does not rule on the
propriety of including the certificated Council members in the bargaining unit, and should not
preclude Mueller from requesting that the Board resolve the issue of the eligibility of the
certificated Council members through challenged ballots (PERB Reg. 32732). At this time,
there is insufficient information in the record for the Board to determine the eligibility of the
current certificated Council members.
13
14
We disagree with Mueller’s contention that the Board agent improperly failed to
investigate and conduct a hearing regarding the alleged conflict between the Board’s
The first indication of this phone conversation was in the administrative
determination. In both parties’ appellate documents, however, there appeared to be no dispute
that MCSTA had agreed to exclude the certificated Council members before the administrative
determination was issued. Normally, such information should be filed with the employer as an
amendment to the request for recognition with copies served concurrently on the appropriate
regional office of the Board. (PERB Reg. 33100.)
13
The Board has long held that the party arguing for exclusion of employees from the
unit has the burden of proving by a preponderance of the evidence that such employees possess
the requisite authority and/or exercise the requisite functions and duties to qualify them for
exclusion from the proposed unit. (San Francisco Unified School District (1977) EERB
Decision No. 23; prior to Jan. 1978, PERB was known as the Educational Employment
Relations Board or EERB.) At this point, Mueller has not met this burden.
14
10

certification of any bargaining unit and the provisions of the charter. Presumably, Mueller
made its request pursuant to EERA section 3544.5(a) and through either PERB Regulation
33200 or 33220 in its amended decision filed May 28. Under EERA, the Board agent must
conduct inquiries and investigations but has discretion as to whether or not to hold a hearing.
(EERA sec. 3544.7(a) and PERB Reg. 33237(a).) PERB Regulation 33237(a) provides in
pertinent part that, pursuant to such a petition, “the Board shall investigate and, where
appropriate, conduct a hearing and/or a representation election or take other such action as
deemed necessary to decide the questions raised by the petition.” (Emphasis added.) (Compare
Pasadena.) In reviewing whether a Board agent has conducted a proper investigation, the
Board generally has looked at whether or not the Board agent abused her discretion. (See
Jefferson School District (1980) PERB Order No. Ad-82; State of California (Department of
Personnel Administration) (1985) PERB Order No. Ad-151-S; California State University
(1988) PERB Order No. Ad-177-H; Pleasant Valley Elementary School District (1984) PERB
Decision No. 380.) The Board disagrees that the Board agent abused her discretion in the
performance of the investigation and the failure to conduct a hearing. After Mueller made its
request for an investigation and hearing, the Board agent sought and received MCSTA’s
written response to Mueller’s allegations and then Mueller’s written reply to MCSTA’s
response. In its reply, as in previous submissions, Mueller failed to allege objections to the
appropriateness of the unit contemplated by EERA section 3545 and PERB Regulations 33200
or 33220. Furthermore, the Board agent’s administrative determination complied with the
requirements of PERB Regulation 32350(b), expressing the results of her inquiry and legal
analysis as the basis for her findings. Although the Board agent did not discuss why a hearing
was not conducted, as stated above, in failing to state appropriate objections under EERA, the
11

________________________
matter did not warrant further inquiry or a hearing. The parties in this matter were provided
with sufficient opportunity to articulate their positions. In addition, even assuming such
objections were appropriate under EERA, Mueller failed to provide a copy of the charter to
support its allegations of conflict.
Mueller’s objections continue to be based upon the alleged conflict with its charter; but,
as stated, Mueller failed to provide a copy of the charter throughout these proceedings. Rather,
the charter was submitted by MCSTA after the administrative determination was issued in its
response to Mueller’s appeal. Mueller says nothing new in its appeal that was not adequately
addressed by the Board agent.
The Board further finds that the Board agent was correct in finding the described unit to
be appropriate consistent with the Board’s decision in Franklin-McKinley. In that case, the
district claimed that all 11 principals should be excluded from a supervisory unit because they
periodically served on the district’s bargaining team. However, the Board only found the four
principals who currently participated on the district’s negotiating team to be confidential
employees and excluded them from the unit.
This case is similar in that according to Mueller, the eight certificated members of the
Council are selected annually. 	We therefore disagree with Mueller concerning its argument
that no unit would be appropriate since Council members rotate and are bargaining with and
for themselves. As stated by the Board agent, such a result would serve to deprive all unit
members of their rights under EERA. This cannot be a result contemplated by the Charter
Schools Act, as amended. In 1999, the Charter Schools Act was amended to apply EERA to
15
Again, the Board is not ruling at this time on whether or not the certificated Council
members should be excluded from the unit as managerial or supervisory employees, but
instead is affirming that there exists an appropriate unit of all certificated employees.
15
12

employees of charter schools. (Ed. Code sec. 47611.5(d).) Under established rules of statutory
construction, both statutes should be harmonized, if possible, to effectuate their collective
intent. (See Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102
Cal.App.3d 689, 701-702 [163 Cal.Rptr. 464]; San Bernardino City Unified School District
(1989) PERB Decision No. 723; State of California (State Personnel Board) (2002) PERB
Decision No. 1491-S.)
Furthermore, Mueller’s contention that exclusion of the eight certificated Council
members from the unit would violate EERA since the unit must comprise all teachers,
misstates the law. EERA section 3545(b)(1) provides:
(b) In all cases:
(1) A negotiating unit that includes classroom teachers shall not
be appropriate unless it at least includes all of the classroom
teachers employed by the public school employer, except
management employees, supervisory employees, and confidential
employees. [Emphasis added.]
The statute thus describes an appropriate unit of classroom teachers as excluding
managerial and supervisory employees. (See also, Pasadena Community College District
(1995) PERB Decision No. 1098.) As stated above, whether or not the certificated Council
members are supervisory or management employees, and should be excluded from the unit,
will not be addressed in this proceeding.
ORDER
For the reasons described above, the Board finds that a unit comprised of all
certificated employees pursuant to EERA section 3545(b)(1) is appropriate under the Board’s
holding in Franklin-McKinley School District (1979) PERB Decision No. 108 and thereby
13

orders that an election be conducted in the certificated unit as described in the Mueller Charter
School Teachers Association’s (MCSTA) original request for recognition.
Within 10 days following issuance of this decision, Robert L. Mueller Charter School
(Mueller) shall post on all employee bulletin boards a copy of the Notice of Decision attached
hereto as an Appendix. The Notice of Decision shall remain posted for a minimum of 15
working days. Reasonable steps shall be taken to ensure that the Notice is not reduced in size,
altered, defaced or covered with any other material.
The regional director shall conduct an election at the end of the posting period to
determine whether the employees in the appropriate unit wish to be represented by MCSTA,
unless Mueller chooses to grant voluntary recognition to the employee organization.
The Board hereby ORDERS that this case be REMANDED to the San Francisco
regional director for proceedings consistent with this decision.
The Robert L. Mueller Charter School’s request for stay of the ordered election in the
administrative determination is hereby DENIED.
Members Baker and Neima joined in this Decision.
14

APPENDIX
NOTICE OF DECISION
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
CASE: 	ROBERT L. MUELLER CHARTER SCHOOL
Case No. LA-RR-1079-E
PERB Order No.
EMPLOYER: 	Robert L. Mueller Charter School
715 “I” Street
Chula Vista, CA 91910
EMPLOYEE ORGANIZATION
PARTY TO PROCEEDING:
Mueller Charter School Teachers Association/CTA/NEA
11745 East Telegraph Road
Santa Fe Springs, CA 90670
FINDINGS:
The Board finds the following unit is appropriate for meeting and negotiating,
provided an employee organization becomes the exclusive representative:
Unit Title: 	Classroom teachers
Shall Include: 	Full-time and part-time certificated non-supervisorial teaching
personnel, counselors, literacy-media specialists.
Shall Exclude: 	Principal, psychologist, student advocate, classified employees,
certificated special ed. employees.
Pursuant to PERB Regulation section 33450, within 10 days following issuance of
this Notice of Decision, the Robert L. Mueller Charter School shall post on all employee
bulletin boards a copy of the Notice of Decision. The Notice of Decision shall remain posted

for a minimum of 15 workdays. Reasonable steps shall be taken to ensure that this Notice is
not reduced in size, altered, defaced or covered with any other material.
The regional director shall conduct an election at the end of the posting period to
determine whether the employees in the appropriate unit wish to be represented by the
Mueller Charter School Teachers Association/CTA/NEA, unless the Robert L. Mueller
Charter School chooses to grant voluntary recognition to the employee organization.
Dated:_______________________ 	ROBERT L. MUELLER CHARTER SCHOOL
By________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR A MINIMUM OF
FIFTEEN (15) WORKDAYS. REASONABLE STEPS SHALL BE TAKEN TO ENSURE
THAT THIS NOTICE IS NOT REDUCED IN SIZE, ALTERED, DEFACED OR
COVERED WITH ANY OTHER MATERIAL.
2