Children of Promise Preparatory Academy (PERB A470E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CHILDREN OF PROMISE PREPARATORY
ACADEMY,
Employer, Case No. LA-DP-403-E
and Administrative Appeal
GROUP OF EMPLOYEES, PERB Order No. Ad-470
Petitioner, November 29, 2018
and
INGLEWOOD TEACHERS ASSOCIATION,
Exclusive Representative.

Appearance: Bartsch Law Group, by Duane Bartsch, Attorney, for Children of Promise
Preparatory Academy.

Before Banks, Shiners, and Krantz, Members.
DECISION

SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Children of Promise Preparatory Academy (Academy) of
the attached administrative determination by PERB’s Office of the General Counsel (OGC).'
In the administrative determination, the OGC dismissed a decertification petition on the ground
that the Academy failed to show the unfair practices it was found to have committed in
Children of Promise Preparatory Academy (2018) PERB Decision No. 2558 would not affect

employee free choice in a decertification election.

' In its appeal, the Academy also requests that the dismissal of the petition be stayed
pending the Board’s decision on the merits of the Academy’s appeal.

We have reviewed the case file in its entirety in light of the issues raised in the
Academy’s appeal. Based on this review, we find the administrative determination to be well
reasoned and in accordance with applicable law. Accordingly, we adopt the administrative
determination as the decision of the Board itself, subject to the discussion below.
FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 2015, a group of Academy employees (Petitioner) filed a petition to
decertify the Inglewood Teachers Association (Association) as the bargaining unit’s exclusive
representative. On March 25, 2015, the Association filed an unfair practice charge against the
Academy alleging various acts of misconduct that interfered with the Association’s ability to
effectively represent bargaining unit employees and thus also interfered with the election
process. The Association requested a stay of the decertification election, citing the Academy’s
alleged interference and additional claims of bad faith bargaining alleged in a pending unfair
practice charge filed by the Association in 2014.
On May 12, 2015, the OGC issued an administrative determination granting the
Association’s request to stay the decertification election. The OGC found that a fair election
would be impossible because the Academy’s alleged unlawful conduct, if true, would
negatively impact the Association’s relationship with its bargaining unit members, undercut
support for the Association or unions in general, and so affect the election process as to
prevent employees from exercising free choice. On appeal, the Board affirmed the
administrative determination, thereby staying the decertification election while the blocking
2

________________________
charges were adjudicated.2 (Children of Promise Preparatory Academy (2015) PERB Order
No. Ad-428.)
Formal hearings on the Association’s unfair practice charges were conducted by two
separate administrative law judges. Each issued a proposed decision finding that the Academy
violated the Educational Employment Relations Act (EERA).3 The Academy appealed the
proposed decisions to the Board itself, which consolidated the two cases. On March 27, 2018,
the Board affirmed both of the proposed decisions, concluding that the Academy did in fact
engage in the alleged unlawful conduct. (Children of Promise Preparatory Academy, supra,
PERB Decision No. 2558.)
The Academy’s alleged unlawful conduct having been proven, on August 9, 2018, the
OGC issued an order to show cause (OSC) as to why the decertification petition should not be
dismissed. Specifically, the OGC requested that the parties address “whether the actual
unlawful conduct of the Academy would likely have an effect on the vote of the employees
and, therefore, influence the outcome of the election.” (Emphasis in original.)
The Academy responded by letter dated August 28, 2018, providing five sworn
declarations from teachers “who were present during the Decertification Petition.”
Summarizing the declarations, the Academy argued:
The teachers themselves state via declarations that their vote in
the Decertification Petition was free, fair, and without influence
from [the Academy] [¶. . .¶] [B]y their own words, [they] were
2 A “blocking charge” serves to delay a decertification election “in circumstances in
which the employees’ dissatisfaction with their representative is in all likelihood attributable to
the employer’s unfair practices rather than to the exclusive representative’s failure to respond
to and serve the needs of the employees it represents.” (Jefferson School District (1979) PERB
Order No. Ad-66, pp. 5-6.)
3 EERA is codified at Government Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise indicated.
3

________________________
not influenced or swayed by any [Academy] conduct. The
teachers asserted their free will in voting for the Decertification
Petition and that free will should not be ignored.
On September 11, 2018, the OGC issued an administrative determination dismissing
Petitioner’s decertification petition. The OGC noted that the teachers’ declarations addressed
conditions allegedly in existence when they originally decided to pursue decertification in
January 2015 or other conditions unrelated to a future election. Because none of the declarants
attested to current facts demonstrating that the neutral conditions required for a fair election
presently existed, the OGC rejected the Academy’s assertions.
On September 20, 2018, the Academy appealed the OGC’s decision to dismiss the
decertification petition, and requested a stay of that dismissal during the pendency of the
appeal.
DISCUSSION
In an appeal from an administrative determination, the appellant must demonstrate how
or why the challenged decision departs from the Board’s precedents or regulations. (Regents
of the University of California (2016) PERB Order No. Ad-434-H, p. 8; County of Santa Clara
(2014) PERB Order No. Ad-411-M, p. 5.) The appeal also “must state the specific issue(s) of
procedure, fact, law or rationale that is appealed and state the grounds for the appeal.”
(PERB Reg. 32360(c).)4
The Academy’s appeal is virtually identical to its response to the OSC, adding only the
conclusion that “the Determination has no factual basis and the Decertification Petition should
not be dismissed.” The appeal does not identify any factual or legal errors in the
administrative determination. Nonetheless, by claiming there is no factual basis for the OGC’s
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4

dismissal of the petition, the appeal adequately provides notice of the issues on appeal, viz.,
whether the dismissal is supported by the factual record. (Petaluma City Elementary School
District/Joint Union High School District (2016) PERB Decision No. 2485, p. 15.)
Based on our review, we find the dismissal is supported by the factual record and
consistent with Board precedent. In determining whether to grant a stay of a representation
election, the OGC looks to “whether the facts alleged in the unfair practice charge, if true,
would likely affect the vote of employees, and, thus, the outcome of the election.” (Children
of Promise Preparatory Academy, supra, PERB Order No. Ad-428, p. 9; Pleasant Valley
Elementary School District (1984) PERB Decision No. 380, p. 5 (Pleasant Valley).) In
response to the Association’s request for a stay in this matter, the OGC found that if the
allegations in the Association’s unfair practice charges were true, the Academy’s conduct
would likely affect employee free choice in a decertification election. (Children of Promise
Preparatory Academy, supra, PERB Order No. Ad-428, adopting administrative determination
at p. 20.) On appeal, the Board affirmed that finding. (Id. at p. 10.) In a later decision, the
Board affirmed findings that the Academy did engage in the unlawful conduct alleged in the
unfair practice charges. (Children of Promise Preparatory Academy, supra, PERB Decision
No. 2558, p. 37.)
Here, the OGC relied on the Board’s findings in Children of Promise Preparatory
Academy, supra, PERB Decision No. 2558 to determine that the Academy’s unlawful conduct
would likely affect a decertification election, and offered the Academy an opportunity to show
that any adverse effects of that conduct on employee free choice no longer exist. When the
Academy failed to produce such evidence, the OGC properly dismissed the petition.
5

________________________
The gravamen of the Academy’s appeal is that the OGC failed to properly consider the
five declarations attached to the Academy’s OSC response. The administrative determination
discussed the declarations in some detail but found they did not satisfy the Academy’s burden
to show currently neutral conditions, as they related to the time period in 2015 when the
decertification petition was filed, and not to conditions as they exist in 2018. Simply put, the
declarations proffered by the Academy do not provide any evidence that conditions are now
neutral as required for a fair election. Accordingly, the Academy has not presented facts to
overcome the likelihood that its unlawful conduct has affected voter choice.5 (See Children of
Promise Preparatory Academy, supra, PERB Order No. Ad-428, p. 9, citing Pleasant Valley,
supra, PERB Decision No. 380, p. 5; cf. Jefferson School District (1980) PERB
Order No. Ad-82, pp. 4, 10-12, 15-17 (Jefferson School District) [stay of decertification
petition properly dissolved where circumstances changed such that pending unfair practice
charges would no longer have tendency to interfere with free choice].) Unlike in Jefferson
School District, the parties here provided insufficient facts to warrant proceeding with an
election. We therefore reject the Academy’s argument that the OGC did not give proper
weight to the declarations.
In sum, we affirm the OGC’s determination that the Academy’s unfair practices would
affect employee free choice if a decertification election were conducted based on the petition
in this matter. Accordingly, the OGC properly dismissed the petition.
5 This finding is consistent with our decisional law holding that the proper inquiry in a
blocking charge situation is not the employees’ motivation for filing the decertification petition
but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees
from exercising free choice in an election. (Imagine Schools of Imperial Valley (2015) PERB
Order No. Ad-431, p. 10; Grenada Elementary School District (1984) PERB Decision
No. 387, p. 11; Regents of the University of California (1984) PERB Decision No. 381-H,
p. 6.)
6

ORDER
The Children of Promise Preparatory Academy’s administrative appeal of the Office of
the General Counsel’s dismissal of the group of Academy employees’ decertification petition
is DENIED. The Board further DENIES the Children of Promise Preparatory Academy’s
request to stay the dismissal of the decertification petition.
Members Banks and Krantz joined in this Decision.
7

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
425 W. Broadway, Suite 400
Glendale, CA 91204-1269
Telephone: (818) 551-2809
Fax: (818) 551-2820
September 11, 2018
Stephanie Moore
2808 W. 46th Street
Los Angeles, CA 90043
Duane Bartsch, Attorney
317 Rosecrans Ave
Manhattan Beach, CA 90266
Jean Shin, Attorney
California Teachers Association
11745 E. Telegraph Road
Santa Fe Springs, CA 90670
Re: 	Children of Promise Preparatory Academy
Case No. LA-DP-403-E
ADMINISTRATIVE DETERMINATION
Dear Interested Parties:
On August 9, 2018, the undersigned Board agent sent an Order to Show Cause (OSC) to
Petitioner(s) and the Children of Promise Preparatory Academy (Academy or COPPA)
affording each the opportunity to show cause as to why the Decertification Petition should not
be dismissed.
The OSC set forth the procedural and factual background of the Petition. It also described the
recent March 27, 2018 Decision—Children of Promise Preparatory Academy (2018) PERB
Decision No. 2558— where the Board concluded that the Academy engaged in unlawful
conduct. The Board agent stated that the question raised as to the Decertification Petition is
“whether the actual unlawful conduct of the Academy would likely have an effect on the vote
of the employees and, therefore, influence the outcome of the election.” The undersigned
Board agent posited:
[T]he Academy’s refusal to provide names and contact
information may have alerted employees to a contentious
relationship between the employer and the exclusive
representative which may have disrupted employee morale and
deterred employees from participating in union activity. It is also
likely that the Association was forced to attempt other, more
intrusive, means of communication with its bargaining unit
members which could negatively impact the relationship between
the Association and its members. All this would hamper the

________________________
Association's ability to represent the unit and negotiate on its
behalf.
LA-DP-403-E
September 11, 2018
Page 2
The undersigned Board agent concluded that “[a]n election cannot be held because it appears
that the neutral conditions required for a fair election were tainted by the Academy’s illegal
conduct.”
On August 31, 2018, the Academy filed a response to the OSC1 which stated that “[t]he Board
determined that COPP A influenced the outcome of the election, and therefore the Board agent
issued the August 9, 2018, OSC as to why the teachers’ Decertification Petition should not be
dismissed.” The Academy contended that the Decertification Petition should not be dismissed
because “[t]he teachers themselves state via declarations that their vote in the Decertification
Petition was free, fair, and without influence from COPPA.” The Academy submitted
statements from five teachers “who were present during the Decertification Petition.” The
statements contain the exact same preprinted language, which includes:
1. 	During my employment as a Teacher at COPPA, a group
of teachers sought to decertify the Union (the Inglewood
Teachers Association.)
Mechele Yerima’s statement is signed and dated August 23, 2018 and contains the following
handwritten statement:
2. 	The teachers at COPPA met, the teachers decided on their
own – no administrators were involved. Teachers wanted
to be able to make [their] own decisions without union
representation.
Colbey Waggoner’s statement is undated and fails to describe where it was signed. It contains
the following printed statement:
2. 	I do not wish to join the union at any time. Although I
shared this information with the union, representatives
from the union still came to my classroom during my
lunch break to continually urge me to join.
Nicole Lusk’s statement is signed and dated August 27, 2018 and contains the following
handwritten statement:
2. 	The teachers met, discussed and decided we wanted to
make our own decisions. No union was needed. This
was a teacher choice. Administration had nothing to do
with it.
1 Petitioner(s) did not submit a response to the OSC.

________________________
LA-DP-403-E
September 11, 2018
Page 3
Isabelita N. Bustamante’s statement is signed and dated August 23, 2018 and contains the
following handwritten statement:
2. 	It was my own decision not to give my phone # and not to
disclose any information about me, [be]cause I don’t want
the union.
Elvira C. Jumawan’s statement is signed and dated August 23, 2018 and contains the following
handwritten statement:
2. 	I decertify without the schools interference or coercion.
The Academy’s contention that “[t]he Board determined that COPPA influenced the outcome
of the election ...” is incorrect. The Board did not determine that COPPA influenced the
outcome of the election. There was no election. What occurred here, and as set forth in the
OSC, was that after Petitioner(s) filed a Decertification Petition in January 2015, the
Inglewood Teachers Association (Association) filed two blocking charges alleging that a
number of unfair labor practices by the Academy required that the decertification election be
stayed, the undersigned Board agent determined the election should be stayed pending the
outcome of the blocking charges, and the Board affirmed. (Children of Promise Preparatory
Academy (2015) PERB Order No. Ad-428.) On March 27, 2018, the Board issued a decision
on the blocking charges and found that the Academy’s conduct violated the EERA.2 (Children
of Promise Preparatory Academy (2018) PERB Decision No. 2558.)
Because the blocking charges were resolved, the undersigned Board agent sent the August 9,
2018, OSC to the parties and expressly defined the question at issue as “whether the actual
unlawful conduct of the Academy would likely have an effect on the vote of the employees
and, therefore, influence the outcome of the election.” The Academy’s response does not
address the question at issue and instead asserts that “[t]he teachers themselves state via
declaration that their vote in the Decertification Petition was free, fair, and without influence
from COPPA.” Again, there was no election and, therefore, no vote. The Academy’s assertion
that the teachers’ votes were free, fair and without influence, does not make sense.
Perhaps the Academy and declarants meant to assert that the teachers’ support of the 2015
Decertification Petition was free of employer influence. If so, the Academy’s response speaks
to the conditions that allegedly existed when the Decertification Petition was filed in January
2015:
• 	Two of the declarants refer to meetings and decisions in the past tense, apparently
referring to the conditions leading to the filing of the Decertification Petition;
2 EERA is codified at Government Code section 3540 et seq. PERB’s Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-DP-403-E
September 11, 2018
Page 4
• 	One declarant, who failed to date and identify the location where he signed the
affidavit, simply expresses his opposition to joining the union and the union’s
continued visits to his classroom to persuade him to join;
• 	One declarant states that it was her own decision not so share her contact information
because she does not want the union;
• 	The final declarant seems to be attempting to cast a vote, stating her opposition, and/or
asserting that she has not been coerced by the employer.
None of the declarants attest to facts that might demonstrate that an election may now be held
on the Decertification Petition because the “neutral conditions required for a fair election” are
present. To the contrary, the Academy’s conduct in procuring its five declarations from
teachers is the type of conduct that in and of itself tends to show that teachers remain aware
that the Academy still opposes unionization. The Academy’s conduct would likely affect the
vote of employees, and, thus, the outcome of the election. (Children of Promise Preparatory
Academy (2015) PERB Order No. Ad-428, p. 9, citing Pleasant Valley Elementary School
District (1984) PERB Decision No. 380.) However, the Academy’s conduct with respect to its
response to the OSC is not determinative. What is determinative is the lack of any facts to
demonstrate that the conditions now are neutral as required for a fair election. Therefore, the
Decertification Petition is dismissed.
Right of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar days
following the date of service of this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
filed, the original and five (5) copies of any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered “filed” when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; Gov. Code, § 11020, subd. (a).) A
document is also considered “filed” when received by facsimile transmission before the close
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
The appeal must state the specific issues of procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking

LA-DP-403-E
September 11, 2018
Page 5
a stay of any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If a timely appeal is filed, any other party may file with the Board an original and five (5)
copies of a response to the appeal within ten (10) calendar days following the date of service of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Service
All documents authorized to be filed herein must also be “served” upon all parties to the
proceeding and on the Los Angeles Regional Office regional office. A “proof of service” must
accompany each copy of a document served upon a party or filed with the Board itself (see
Cal. Code Regs., tit. 8, § 32140 for the required contents). The document will be considered
properly “served” when personally delivered or deposited in the mail or deposited with a
delivery service and properly addressed. A document may also be concurrently served via
facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135, subd.
(c).)
Sincerely,
Mary Weiss
Supervising Regional Attorney
MW