Clovis Unified School District (PERB 2904EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION OF CLOVIS EDUCATORS,
CTA/NEA,
Charging Party,
v.
CLOVIS UNIFIED SCHOOL DISTRICT,
Respondent.
CLOVIS UNIFIED FACULTY SENATE,
Joined Party.
ASSOCIATION OF CLOVIS EDUCATORS,
CTA/NEA,
Charging Party,
v.
CLOVIS UNIFIED FACULTY SENATE;
CLOVIS TEACHERS ORGANIZATION,
Respondent.
CLOVIS UNIFIED SCHOOL DISTRICT,
Joined Party.
Case Nos. SA-CE-3040-E
SA-CE-3047-E
SA-CE-3051-E
Case No. SA-CO-655-E
Request for Reconsideration
PERB Decision No. 2904
PERB Decision No. 2904a
October 14, 2024
Appearances: California Teachers Association by Megan Degeneffe, Staff Counsel,
for Association of Clovis Educators, CTA/NEA; Fagan Friedman & Fulfrost by David A.
Moreno, Lynn Beekman, Katy McCully Merrill, and Brandon A. Lallande, Attorneys, for
Clovis Unified School District.
Before Banks, Chair; Krantz and Nazarian, Members.

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DECISION
KRANTZ, Member: The above-captioned unfair practice cases are before the
Public Employment Relations Board (PERB) on a request by Respondent Clovis
Unified School District to reconsider our decision in Clovis Unified School District
(2024) PERB Decision No. 2904 (Clovis). There, we noted that the District had not
filed exceptions to the proposed decision of the administrative law judge (ALJ),
thereby conceding the ALJ’s findings and conclusions. (Id. at pp. 3, 34 & 57.) The
ALJ’s findings, as well as additional findings we reached, demonstrated that the
District violated the Educational Employment Relations Act (EERA) and the Prohibition
on Public Employers Deterring or Discouraging Union Membership (PEDD) by, among
other conduct: (1) dominating and interfering with the administration of the Clovis
Unified Faculty Senate, an employee organization that is a joined party in all three
charges against the District; (2) providing the Senate with preferential treatment and
extensive, unequal support; and (3) encouraging employees to support the Senate
while deterring or discouraging them from joining Charging Party Association of Clovis
Educators (ACE) and from authorizing ACE to represent them. (Id. at pp. 36-48.)1
The disputed questions in Clovis, supra, PERB Decision No. 2904 related to
exceptions filed by ACE, which centered on the appropriate remedy for the District’s
violations, as well as certain claims against the Senate that the ALJ had rejected. As
to the claims against the Senate, we partially reversed the ALJ. Based upon the
violations the ALJ found and additional violations that we found, we concluded that the
1 EERA is codified at Government Code section 3540 et seq., while the PEDD
is codified at Government Code section 3550 et seq. Undesignated statutory
references are to the Government Code.

3
Senate violated EERA by, among other conduct: (1) soliciting and/or accepting
unlawful support from the District; (2) causing or attempting to cause the District to
violate EERA; and (3) otherwise interfering with teachers’ protected activity. (Id. at
pp. 49-53.)2
We also augmented and adjusted the ALJ’s proposed remedial order. First, we
granted the “disestablishment” remedy that is standard in all cases involving employer
domination of a labor organization, thereby directing the District and the Senate to
disestablish all relationships with one another having to do with teachers’ employment
terms and conditions. (Clovis, supra, PERB Decision No. 2904, pp. 55-63.) Second,
we affirmed the ALJ’s decision to require a District representative to read aloud
PERB’s notice of findings and remedial order, but we made multiple adjustments to
this spoken notice order, to avoid remedial disputes and better effectuate the
purposes of EERA and the PEDD. (Id. at pp. 64-65.)
The District’s reconsideration request claims we made prejudicial mistakes of
fact and erred in our remedial order. As part of its request, the District asks us to
consider new evidence that allegedly would alter our remedy, and which we should
not expect the District to have presented earlier, even with the exercise of reasonable
diligence. For the reasons explained below, we find no cause to disturb our
conclusions in Clovis, supra, PERB Decision No. 2904.
2 We use the term “teachers” as a shorthand to include teachers, mental health
professionals, and other certificated educational employees at the District.

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DISCUSSION
Requests for reconsideration are subject to the strict standard set forth in PERB
Regulation 32410.3 Specifically:
“Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider
the decision within 20 days following the date of service of
the decision. The request for reconsideration shall be filed
with the Board itself in the headquarters office and shall
state with specificity the grounds claimed and, where
applicable, shall specify the page of the record relied on.
Service and proof of service of the request pursuant to
Section 32140 are required. The grounds for requesting
reconsideration are limited to claims that: (1) the decision of
the Board itself contains prejudicial errors of fact, or (2) the
party has newly discovered evidence which was not
previously available and could not have been discovered
with the exercise of reasonable diligence. A request for
reconsideration based upon the discovery of new evidence
must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered
prior to the hearing with the exercise of reasonable
diligence; (3) was submitted within a reasonable time of its
discovery; (4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision of the
previously decided case.”
(Id., subd. (a).)
An error or omission in a remedial order can be a proper subject of
reconsideration under the newly discovered evidence standard. (County of Ventura
(2021) PERB Decision No. 2758a-M, p. 2 (Ventura).) However, this represents “a
narrow avenue” allowing corrections to inadvertent errors, and it “does not allow
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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parties to reassert remedy arguments that we have already considered and rejected.”
(Id. at pp. 2-3; see also id. at p. 3, fn. 2 [reconsideration request is proper where
certification order included an incorrect classification, backpay order mistakenly began
relief on day of termination rather than day of administrative leave, or PERB otherwise
made an inadvertent remedial error].) Thus, whether a reconsideration request
focuses on the Board’s remedy or any other aspect of a Board decision, a party may
not use the reconsideration process “to register its disagreement with the Board’s
legal analysis, to re-litigate issues that have already been decided, or simply to ask
the Board to try again.” (Id. at p. 3 [internal quotation marks and citations omitted].)
Here, the District alleges that we made more than a dozen prejudicial factual
errors, and it asks us to consider three newly submitted declarations. The District also
disagrees with our legal analysis, seeking to relitigate decided issues, particularly as
to remedy.
The District’s request is out of bounds to the extent it seeks to relitigate legal
issues or application of law to facts, and it is procedurally invalid in other respects as
well. One such flaw is that the District’s request raises issues that the District has long
since waived. As noted above, the District did not file exceptions to the proposed
decision. Nor did the Senate. They accordingly waived any challenge to the ALJ’s
conclusions, including that the District’s violations were “extensive,” that the Senate “is
literally dependent on the District’s support,” and that the District’s payments to the
Senate were “antithetical to the socio-economic construct of EERA.”
The District now claims it did not agree with the ALJ’s conclusions but filed no
exceptions because it did not object to the ALJ’s proposed remedy. This explanation

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ignores that, pursuant to PERB Regulations and precedent, a party’s failure to file
exceptions on a given issue waives any future challenge to the ALJ’s conclusion on
that issue. (PERB Reg. 32300, subd. (e); Trustees of the California State University
(2014) PERB Decision No. 2400-H, p. 4, fn. 3.) The District therefore does precisely
what we have warned parties not to do—use reconsideration requests “to make up for
shortcomings in their previous filings.” (Alliance College-Ready Public Schools, et al.
(2018) PERB Decision No. 2545a, p. 5.)
The District’s waiver is particularly clear in this instance, as the District and the
Senate each had two distinct chances to file exceptions. They could have done so in
the first instance following the proposed decision. (PERB Reg. 32300, subd. (a).) And
later, a second opportunity arose. When ACE filed its exceptions, the District and the
Senate each had the right to file cross-exceptions as to any issue. (PERB Reg. 32310,
subd. (c).) Thus, even when the District knew full well that ACE was asking the Board
to order disestablishment—and was basing its argument in part on the ALJ’s
conclusions that the District had engaged in extensive violations—the District and the
Senate nonetheless filed no exceptions, which cemented their respective waivers.
Those portions of the District’s reconsideration request that rely on new
evidence suffer from further significant flaws. Assuming for the sake of argument that
the District’s new evidence is relevant, the District has failed to establish PERB
Regulation 32410’s other four requirements for submitting new evidence in a
reconsideration request. Indeed, though the District submitted a declaration stating in
a conclusory manner that its new evidence meets each requirement, it failed to specify
when the District discovered the new facts, how soon thereafter it sought to reopen

7
the record or otherwise bring the facts to the Board’s attention, or why it could not
have done so earlier. And it is clear from the nature of the assertedly new evidence
that it was previously available, could have been discovered with the exercise of
reasonable diligence, and was not submitted close to the time of discovery.4
Accordingly, we exclude from the record the District’s proposed new evidence.
Moreover, as discussed post, the new evidence would not change the outcome even if
we accepted it.
Aside from the above-described global flaws in the District’s reconsideration
request, we also find, in the alternative, that its specific arguments lack merit. We
proceed to explain each of these additional specific reasons for rejecting the District’s
arguments.
I. 	Alleged Prejudicial Factual Errors and New Evidence as to the District’s Conduct
EERA section 3543.5, subdivision (d) makes it unlawful for an employer to
“[d]ominate or interfere with the formation or administration of any employee
organization, or contribute financial or other support to it, or in any way encourage
employees to join any organization in preference to another.” The District did not
challenge the ALJ’s lengthy findings on liability; it belatedly attempts to do so now. As
noted, the District has no right to seek reconsideration of any such findings. Instead, at
4 The District’s new declarations are particularly problematic given the
extensive record the parties created by examining witnesses and introducing exhibits
during a 33-day hearing. While a Board agent has authority to receive evidence by
declaration if warranted (City of Santa Clara (2016) Decision No. 2476-M, pp. 9-10),
we are mindful that witness evidence tends to be more dependable when it is subject
to cross-examination. In this case, the declarations submitted highlight that problem in
that they are self-serving, lacking in context, and otherwise conclusory.

8
most, it may seek reconsideration to the extent it alleges a prejudicial error of fact (or
newly discovered evidence meeting the criteria in PERB Regulation 32410) regarding
Board findings that exceeded those in the proposed decision. The District goes far
beyond that limited right, in two ways: (1) it alleges mistakes as to violations the ALJ
had found and to which the District filed no exceptions; and (2) it challenges findings
without showing any prejudicial mistake of fact or new evidence meeting the criteria
set forth in PERB Regulation 32410. In any event, none of the District’s
reconsideration arguments would be tenable even if they were procedurally proper.
We explain.
A. 	Unlawful Support
The District’s threshold claim is that the Board made prejudicial errors of fact by
treating all of the District’s unlawful support “as still existing,” even though it claims by
the time the hearing closed, “the only support and assistance which continued was the
[Senate] stipends, release time to the [Senate] president, a classroom office for the
[Senate] President, and a cell phone reimbursement.” More specifically, the District
identifies multiple types of support that it provided the Senate but eventually
discontinued or offered equally to ACE. However, the District has failed to show a
prejudicial error of fact, and its efforts to introduce new evidence are unavailing and
would not alter our order.
The first category of support the District mentions is providing the Senate with a
vehicle and related vehicle costs. The District highlights that it stopped providing such
support at the end of the 2020-2021 school year. There is no prejudicial error of fact,
however, as the District’s current contention matches what the Board found. (See

9
Clovis, supra, PERB Decision No. 2904, p. 23 [“Beginning in about 2008 and
continuing through 2020-2021, the District provided the Senate president with a
District vehicle, maintenance, insurance, and gas. The District discontinued this
practice in the 2021-2022 school year.”] (emphasis added).) And this finding aligns
with the ALJ’s conclusion, to which no party excepted. The District’s argument is thus
both procedurally and substantively frivolous. While the District’s other reconsideration
arguments are also largely frivolous, we do not repeat this admonition for the sake of
brevity.
Second, the District notes that it eventually stopped hosting the Senate’s
website. The District neither indicates when it did this nor offers any record citation or
new evidence that might suggest the probable timeframe. Most importantly, the
District ignores that the Board was entirely accurate in characterizing this fact. (See
Clovis, supra, PERB Decision No. 2904, p. 23 [“[T]he District maintains a website at
www.cusd.com, and through the close of the hearing, the District’s website hosted the
Senate’s web page (www.cusd.com/FacultySenate.aspx). To access the Senate’s web
page from the District’s website, a user would click on the ‘Employee Representation’
tab. After the close of hearing, the District replaced the content of the Senate’s web
page with a short message noting: ‘This page is currently not available.’”] (emphasis
added).)
For its third alleged factual error, the District states that the Senate, ACE, and
all other employee groups currently have equal access to staff email lists. The District
ignores that the Board decision found this to be the case. (Clovis, supra, PERB
Decision No. 2904, p. 24 [“After ACE requested such access in August 2021, the

10
District provided ACE comparable access.”] (emphasis added).) Furthermore, the
Board’s finding matches the ALJ’s conclusion, to which no party excepted.
The fourth category of support the District addresses is Senate officers’ use of
District laptops for Senate business. The District takes no issue with the Board’s
factual findings, and those findings match the ALJ’s conclusion, to which the District
filed no exception. Indeed, like the ALJ, we found that Senate officers used
District-provided laptops for Senate business, which was one of the technology-related
forms of support the District provided the Senate. The District instead asks us to
supplement the record with a declaration alleging that the District has also assigned
ACE’s president a District laptop. The District does not explain why its proposed new
evidence was not available earlier, thereby failing to meet its burden to seek to reopen
the record. In any event, the declaration we reject would be immaterial given that it
does not allege ACE’s president uses a District laptop for ACE business, and
senators’ use of District laptops was not a major part of the violations found.5
Fifth, the District submits new evidence and arguments regarding release time
and stipends—the two categories of monetary support comprising the largest part of
the District’s monetary support to the Senate. However, the District does not allege
5 The District’s reconsideration request is not the first time we have reviewed a
request to reopen the record. As part of its exceptions to the proposed decision, ACE
sought to reopen the record to include evidence about conduct by the District and the
Senate after the hearing closed. The District opposed the motion and argued in the
alternative that if we were inclined to reopen the record, then we should consider
additional evidence as well—including evidence that overlaps with the new evidence it
now asks us to consider in its reconsideration request. We denied ACE’s motion, as it
would not have impacted the outcome, meaning there was no need to determine if
ACE had established that it brought the evidence to our attention promptly after it
knew or should have known of the evidence.

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that the Board erred in finding that: (1) the District had been providing the Senate with
release time since at least 2000; (2) the District’s total monetary support to the Senate
reduced from $330,930 in 2020-2021 to $280,052 in 2021-2022; and (3) release time
and stipends were the biggest parts of these expenditures. Furthermore, by not filing
exceptions to the proposed decision, the District has long since acceded to the ALJ’s
conclusion in December 2023 that release time continued in 2023.
While conceding these crucial facts, the District vaguely states as follows with
respect to release time: “Since the hearing concluded in this matter, the circumstances
related to the [Senate] President’s receipt of release time have changed. The District
has discontinued any release time for [Senate] members.” As to stipends, the District
provides a bit more information: “Stipends were last paid in December 2022; none
were paid Spring 2023 or for the 2023-2024 school year. Stipends have been
discontinued permanently.” Notably, the District does not provide any of the
information we would need to consider this motion to reopen the record, such as when
the District knew or should have known about the new evidence as to stipends and
release time. We therefore exclude the new evidence.
Even were we to consider new evidence showing that the District eventually
discontinued paying stipends and release time, such evidence would not have the
effect the District seeks. To begin, it would not show that the District acted promptly
once ACE pointed out its unlawful conduct. Rather, the proposed new evidence would
leave in place the undisputed record evidence that the District continued making such
payments for a long period, while communicating to teachers that the support was
lawful, that ACE was seeking to “shut down” the Senate by challenging the support,

12
and that the District would be staunchly defending against any efforts to discontinue
the support.6
Moreover, for the reasons outlined in Clovis, supra, PERB Decision No. 2904,
disestablishment would still be necessary even if the District had promptly stopped all
illegal conduct when ACE announced its organizing drive, especially because the
District’s longstanding, significant monetary support to the Senate provided it with an
expensive head start that no other organization could match. (Id. at pp. 58-63.) The
Senate received hundreds of thousands of dollars per year from the District, and
because the Senate had no other source of support, it was entirely dependent on the
District, distinguishing it from a dues-supported union that also receives release time.
(Id. at p. 43.) This fact alone amounts to domination, even ignoring the significant
other indicia of domination. As Clovis explains, disestablishment is the standard
remedy for domination violations, even when the domination has ended. (Id. at p. 62.)
Indeed, disestablishment is far superior to ordering the employer to level the playing
field by providing a competing organization with substantial monetary and in-kind
support allowing it to build its organization to the same degree as the formerly
dominated organization. (Id. at p. 59 [“To do so would simply replace one employer -
dominated employee organization with another.”].)
It is futile to order an organization such as the Senate—which is dependent on
the District for funds—to reimburse the employer for the monetary and in-kind support
6 A District witness who testified in August 2022—almost 18 months after ACE
announced its organizing drive and more than a year after ACE filed its first charge—
testified that the District had not yet decided whether to stop providing stipends and
release time during the 2022-2023 school year. As noted, the District had been
making such payments repeatedly over the course of years.

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it unlawfully received. The record does not reflect that the Senate had any
independent source of funds that would allow it to do so. In this respect, we concur
with the gist of ACE’s brief responding to the District’s reconsideration request, which
noted that disestablishment is a modest remedy, as “it does not fully restore the status
quo ante, inasmuch as the District’s unlawfully-spent funds have not been recouped to
be properly used for the benefit of students, rather than the District’s hand-picked
private employee organization.”
Sixth, the District seeks to add new evidence that it eventually stopped
providing the Senate president with office and/or classroom space and reimbursement
for cell phone and food expenses. But as above, the District points to no error in what
the Board found—nor is there one—and the District does not make a showing
sufficient to supplement the record with new facts. In any event, office space and
costs for cell phone and food were not a large part of the support the District
provided.7
Relatedly, the District complains that “the Board prejudicially characterizes
provisions the District made to [the Senate] such as water, snacks, cell phone, as
evidence of ‘one of the most extensive examples of domination’ to appear before
PERB. (Decision, p. 41.).” However, it is specious for the District to claim the Board
found these payments were a significant part of the District’s extensive violations. The
Board found the opposite to be true, noting that they made up a small part of the
7 In contrast, as discussed post, we properly relied on the District’s admission
that it was moving the Senate president’s office to a location within its Human
Resources office to promote “accountability and support” for the Senate’s president
and executive board members. (Clovis, supra, PERB Decision No. 2904, p. 16.)

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monetary support portions of the District’s violations. (Clovis, supra, PERB Decision
No. 2904, p. 22.)
Finally, the District argues there is no evidence that any employee group sought
to compete with the Senate from the Board’s 1984 decision in Clovis Unified School
District (1984) PERB Decision No. 389, until 2021, when ACE announced its
organizing campaign. However, this does not point to any prejudicial error of fact, as
the Board noted that same absence of evidence. (Clovis, supra, PERB Decision
No. 2904, p. 43.) The Board found that the District’s hundreds of thousands of dollars
of annual support to the Senate, the Senate’s lack of any other source of funds, and
the undisputed fact that the Senate was literally dependent on the District, combined
to make the Senate an unlawfully dominated company union even in the absence of
any competing organization. (Ibid.) Indeed, employer domination of a labor
organization infringes on employee free choice—even in the absence of a competing
organization—precisely because it tends to discourage and constrain employees from
acting through representatives of their own choosing. (Electromation, Inc. (1992) 309
NLRB 990, 993-994.)
As of 1984, the District provided the Senate with minimal monetary support,
such as release time only to attend discrete meetings. (Clovis Unified School District,
supra, PERB Decision No. 389, adopting proposed decision at pp. 33, 63 & 71.) The
Board found this minimal support was unlawful in that the District preferentially offered
it to the Senate, but the Board explicitly did not decide whether the District could do so
if there was no competing organization. (Id., adopting proposed decision at p. 63.) But
here, the District’s support was much more substantial. Indeed, because it was so

15
substantial, and the Senate had no other funding, it amounted to domination even
were we to ignore the other extensive evidence of domination.
Moreover, as noted above, the District continued its support for a long time after
ACE began organizing and filed unfair practice charges challenging such support. And
during this time the District and the Senate each attacked ACE for challenging the
District’s unlawful, unequal support, thereby setting up ACE to take the blame among
employees for the District’s eventual, tardy decision to discontinue such support.
Although the remedy in a domination case does not turn on whether the dominated
organization seeks to persuade employees not to join a competing organization, here
the Senate did exactly that, after ACE began organizing.8
B. Encouraging Employees to Join One Organization Over Another
The District had a duty to remain strictly neutral between the Senate and ACE.
(Clovis, supra, PERB Decision No. 2904, pp. 44-45.) The test is whether the
employer’s conduct tends to influence free choice or provide stimulus in one direction
or the other. (Id. at p. 45.) The District filed no exceptions to the ALJ’s findings that it
violated this duty, thereby waiving any challenge to such findings. Thus, while the
District claims we made prejudicial errors of fact, once again the first flaw in the
District’s arguments is that they seek to litigate waived issues.
8 The District claims there is insufficient evidence that the Senate used District
resources to encourage support for the Senate over ACE. However, we reached a
reasonable inference that the Senate had done so. (Clovis, supra, PERB Decision
No. 2904, p. 46.) There is scarcely any other inference that would be reasonable, as
the Senate’s president, at a time when she was 100 percent released from teaching
and instead paid by the District for her Senate work, actively criticized ACE, including
for filing charges challenging the District’s violations.

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Even if the District’s arguments were procedurally proper, they do not show any
prejudicial error of fact. First, the District argues that we made erroneous findings on
two District policies: (1) Policy 0100 and its exhibit, “Doc’s Charge,” which states that
“professionals who work in our district are proud that we do not have collective
bargaining”; and (2) Policy 4118, which provided the Senate privileged status as “the
representative body for teachers of the District.” The District argues that “shortly after
ACE requested the District rescind portions of these policies, the District did so.” Yet
the District shows no error in our findings, much less a prejudicial one. The District
amended Policy 4118 in October 2021, as noted in our decision. (Clovis, supra, PERB
Decision No. 2904, p. 13 [“On October 6, 2021, four months after ACE filed its initial
charge, the District Board revised Policy 4118, removing the Senate’s privileged status
as the sole representative of teachers”].) Our findings regarding Policy 0100 and Doc’s
Charge were equally accurate. We found that while the parties were litigating this
case, “the District removed Doc’s Charge as the exhibit to Policy 0100 and stopped
distributing it to new employees at orientation and training. The District also removed
Doc’s Charge from its website.” (Id. at p, 10) Later, we described the timing: “By the
2021-2022 school year, the District stopped providing Doc’s Charge to new
employees.” (Id. at p. 48.)
Moreover, we noted that the District took only half measures with respect to
Doc’s Charge, as it “continued displaying Doc’s Charge in the District boardroom, the
superintendent’s office, and other locations throughout the District.” (Clovis, supra,
PERB Decision No. 2904, pp. 10 & 48.) Furthermore, the District was not merely slow
in pulling back from certain means by which it had always publicized Doc’s Charge.

17
Even as the District considered whether to do so, it wrote to all District teachers
attacking ACE for trying to stop the District from “[d]isplaying Doc’s Charge on the
walls of learning spaces in the District” and promising to defend its continued posting.
(Id. at p. 32.) This does not come close to the prompt, thorough, and diligent effort an
employer must make if it hopes to erase the effects of its interference via an “honestly
given retraction.” (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 31.)
Indeed, a retraction is irrelevant unless it is: (1) timely; (2) unambiguous; (3) specific in
nature to the coercive conduct; (4) free from other illegal conduct; (5) adequately
publicized to the affected employees; (6) not followed by other illegal conduct; and
(7) accompanied by assurances the employer will not interfere with protected rights in
the future. (Ibid.) The District’s partial, tardy action did not meet any of the above
criteria, much less all of them.
The District does not suggest these findings were wrong. Moreover, they match
the ALJ’s conclusions, to which the District filed no exceptions. This waiver is
particularly noteworthy with respect to Policy 4118. Though the District claims we
should have found that Policy 4118 never prohibited ACE from representing
employees, the District did not except to the ALJ’s findings that this policy designated
the Senate “as the representative body for the teachers[,] which means that any other
union representative cannot represent a teacher,” and that “certificated employees
were limited to the [Senate] as [their] sole representative. In other words, any other
nonexclusive representative was unacceptable to the District.”
Even aside from its waiver, the District offers a weak argument that we erred in
interpreting Policy 4118. The District cites self-serving testimony from a District

18
administrator, in response to leading questions, asserting that he never denied
employees the opportunity to bring representatives of their choice to any meeting with
him, nor directed another District administrator to do so. Even had the District filed
exceptions asking us to credit this testimony, and even had we done so, it would not
undercut the inference that Policy 4118 tended to cause a reasonable employee to
believe that the Senate was the District’s preferred representative. Thus, for instance,
employees facing discipline would have been reasonable to believe that their best
chance for leniency would have been to appear with a Senate representative, given its
preferred status. This is yet another component of why the Senate was a classic
company union.
Second, the District takes issue with our finding that it supported the Senate by
including in its Climate Assessment, from 2017-2018 through 2020-2021, multiple
questions asking teachers their views regarding the Senate and how it represented
them. While the District points out that it discontinued those questions in 2021-2022,
that is exactly what we found. (Clovis, supra, PERB Decision No. 2904, p. 19.) The
District thus challenges no factual findings, but rather disputes what legal conclusions
flow from the facts—a procedurally improper basis for a reconsideration motion. In any
event, the fact that the District included questions on behalf of the Senate illustrated
another respect in which the Senate and the District were integrally entangled and did
not deal with one another at arm’s length over a lengthy timeframe.
Third, the District challenges the Board’s finding that even after ACE
announced its organizing campaign on April 5, 2021, the District did not immediately
include ACE in committee meetings or place ACE representatives on the employee

19
compensation committee (ECC) or other standing committees that recommend actions
to the District Board. The District, citing instances in which ACE representatives
attended meetings in the 2021-2022 school year or later, contends that it has refuted
“the Board’s factually incorrect finding.” There is no prejudicial error of fact, however,
as the District’s contention aligns with the Board’s finding that starting in the
2021-2022 school year, the District allowed ACE representatives to attend such
meetings. (Clovis, supra, PERB Decision No. 2904, pp. 26 & 48.) This finding also
matches the ALJ’s conclusion, to which no party excepted.9
The District notes that during the time when the Senate enjoyed privileged
access to meetings, one or more employees who supported ACE attended certain
committee meetings. As an initial matter, the District waived this argument by failing to
except to the ALJ’s finding that the District was slow to afford ACE representation on
its standing committees. Moreover, even if certain meeting attendees were secret or
9 In Clovis, supra, PERB Decision No. 2904, we found that prior to the
2021-2022 school year, Senate officers enjoyed access to: (1) Executive Cabinet
meetings; (2) superintendent staff meetings; (3) area superintendent meetings; and (4)
monthly school site meetings with principals. (Id. at p. 24.) The District asks us to
consider a new declaration denying that Senate officers ever had access to one of
these four categories of meetings—those of the Executive Cabinet. Although this
declaration does not acknowledge or discuss the District’s November 2020 written
statement that it would “arrange for a joint meeting” between the Executive Cabinet
and the Senate Executive Board (id. at p. 17), and the declaration even if credited
would not materially change our conclusion that Senate officers enjoyed preferred
types of access, there are two important reasons we cannot accept the proffered new
evidence. First, the ALJ found that the Senate “had regular access to the District
administration not only individually, but through regularly scheduled meetings such as
the Executive Cabinet meetings,” and the District and Senate waived any objection by
failing to file any exceptions to the proposed decision. Furthermore, the District has
failed to provide evidence that would establish PERB Regulation 32410’s
requirements for submitting new evidence in a reconsideration request.

20
overt ACE supporters, they attended in their capacity as teachers—not as ACE
representatives—which did not amount to equal access. The District has not shown a
prejudicial error regarding the pace of its decision to afford ACE access to meetings.
In the same vein, the District asserts that it placed two teachers who supported
ACE, Jason Roche and Jaime Arredondo, on a June 2021 panel to interview
candidates for Learning Director at a high school. Thus, the District contends there
was no basis to find that the District designated two Senate representatives, but no
ACE representatives, to serve on the panel. (See Clovis, supra, PERB Decision
No. 2904, p. 31, fn. 8.) The problems with this argument are by now familiar. First, the
District waived it by failing to except to the ALJ’s finding that the District invited
Arredondo and a second employee, Seth Batty, as representatives of the Senate, and
invited Roche in his capacity as an English teacher. Nor did the District except to the
ALJ’s conclusion that the District designated Senate representatives to the interview
panel, but did not designate any ACE representatives to the panel. Likewise, the
District did not except to the ALJ’s conclusion that this unequal representation on the
interview panel, compounded by an interview question that highlighted the Senate’s
“significant role” and rated applicants on how they would work with the Senate,
violated EERA. Second, even had the District not waived its argument, the District did
not appoint anyone to the interview panel in an ACE capacity. Indeed, the District
acknowledges that the two individuals it identifies as ACE supporters “lacked ‘ACE
titles.’” The District fails to acknowledge or attempt to explain its own key document,
drafted on District letterhead, which listed the panel members and their designations,

21
demonstrating the District’s appointment of two Senate representatives and no ACE
representatives. The District has not identified any prejudicial error of fact.10
Fourth, the District claims the Board made “a prejudicial factual assumption”
that the District began efforts to address employee compensation and other concerns
in response to learning about ACE’s formation prior to its April 5 formal
announcement. The District asserts there is no evidence that the District learned of
ACE’s formation prior to April 5. The District ignores that we made no such finding or
assumption. Rather, we correctly paraphrased ACE’s April 5 letter as claiming “that as
the District had learned of their efforts to organize teachers over the preceding
months, discussion of bonuses and other monetary improvements for teachers had
begun.” (Clovis, supra, PERB Decision No. 2904, p. 27.) Thus, Clovis recounted an
assertion ACE made in its April 5 letter but reached no conclusion as to its merits.
Fifth, the District points out that on June 7, 2021, the District met with ACE
regarding the improvements in employment terms that Superintendent O’Brien had
outlined 10 days earlier in an e-mail dated May 27. However, our decision recounted
the June 7 meeting. (Clovis, supra, PERB Decision No. 2904, p. 27, pp. 29-30.) The
District’s reconsideration request does not dispute our critical findings, including:
(1) after ACE’s April 5 announcement of its organizing campaign, District
representatives continued to meet with the Senate about ECC recommendations on
10 There were further circumstances in which the District did not provide ACE
equal representation after it announced its campaign on April 5, 2021. For instance,
the District invited the Senate and other groups to discuss a learning recovery
program on April 12, 2021, while excluding ACE. (Clovis, supra, PERB Decision
No. 2904, p. 26.) Indeed, the ALJ so found based on the District Superintendent’s
admission, and no party excepted.

22
significant changes to salaries, benefits, and schedule; (2) in the same period, the
District did not afford ACE any notice or the opportunity to participate until after the
O’Brien’s May 27 e-mail regarding significant salary, benefit, and schedule
improvements; (3) the May 27 e-mail attributed these improvements to the Senate and
other groups, but not to ACE; (4) on June 1, the District offered to meet with ACE;
(5) on June 4, ACE responded with its meeting availability and requested all financial
information supporting the recommendations that the District had previously shared
with other groups; and (6) when the District met with ACE on June 7, “it was not only
too late, but the District refused to provide ACE with the financial information provided
to other employee groups and which were fundamental to developing the
improvements listed in the District’s May 27 e-mail. The District has never backed
down from this refusal, despite ACE’s repeated requests.” (Id. at pp. 29-30 & 47.)
These findings also track the ALJ’s findings, to which no party excepted.
Lastly, the District addresses its e-mail to teachers dated August 27, 2021. As
an initial matter, the District waived its arguments by failing to file exceptions
challenging the ALJ’s conclusions. The ALJ found that the District sent its e-mail “in
defense of the current status quo between the District and the Faculty Senate, and in
defense of Doc’s Charge.” The ALJ further found that the e-mail “specifically
contended that ACE’s request for a Superior Court injunction threatened the existence
of the Faculty Senate. While the District was indeed free to defend itself . . . this
announcement went beyond that. It announced to all staff . . . that the District was
going to fight to maintain giving the Faculty Senate preferential treatment and status.
Such an announcement only exacerbated the current situation and encouraged

23
employees to join the Faculty Senate over ACE and tended to influence employee free
choice and provide stimulus in one direction or the other as it communicated that the
Faculty Senate will be defended by the District.” The ALJ thus rejected the District’s
affirmative defense, concluding that the announcement served no business necessity.
The District did not except to these findings, and they therefore became binding on the
District.
Even had the District filed exceptions, the District’s arguments regarding its
August 27 e-mail would not succeed. The District claims the Board erred in
characterizing the e-mail as indicating that “stipends and release time were lawful and
would continue,” “defending [the District’s] support of the Senate,” and “castigating
ACE for trying to enforce the law.” (Clovis, supra, PERB Decision No. 2904, pp. 41 &
44.) But that is a fair reading of the e-mail given that it specifically noted ACE was
challenging the District’s provision of stipends and release time, stated the District’s
intention to preserve “the status quo,” and indicated that the District would oppose
ACE’s efforts to “shut down” the Senate. The e-mail therefore cast ACE as bent on
shutting down the Senate, deflected blame away from violations by the District and the
Senate, and clearly indicated an intent to continue stipends and release time while
defending them. Indeed, that is what happened: the District now admits that it
continued stipends for 16 more months thereafter and that it continued release time
even longer than that, providing release time until an unknown date in 2023.
The District also disputes the Board’s legal conclusion that the August 27 e-mail
“chilled ACE’s protected activity” and was further evidence of employer domination.
(Clovis, supra, PERB Decision No. 2904, pp. 41 & 48.) Even if this legal argument

24
were appropriate for reconsideration, and even if the District had not waived it by
failing to file exceptions, the District’s argument would still be untenable. The e-mail
obviously supported the Senate, thereby violating the District’s duty of strict neutrality.
Such conduct contributed to our finding of domination. (Clovis, supra, p. 36 [unlawful
support, preferencing one organization over another, and domination “reinforce one
another”].) Moreover, conduct that violates the duty of strict neutrality is, as a matter of
law, activity that discourages support for one group while encouraging support for
another. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 28-29.) On
this basis, the District’s conduct discouraged support for ACE, chilling protected
activities by employees, non-employee ACE representatives, members, and/or
supporters. Significantly, PERB precedent looks to a tendency to chill protected
activity, without any need to show specific employees who were chilled. (See, e.g.,
City of San Diego (2020) PERB Decision No. 2747-M, p. 43 [holding that news of a
manager’s interfering remark tends to spread].)
Relatedly, the District argues that an employer statement of its views falls within
a legal safe harbor if “the communication does not on its face carry the threat of
reprisal or force, or promise of benefit.” This argument is again improper in a
reconsideration request and in any event waived, and it is wrong for two more
reasons. First, the District’s statement of the safe harbor principle omits that it does
not apply to an employer that encourages support for one organization over another.
(City of San Diego, supra, PERB Decision No. 2747-M, p. 40 [employer statement of
views is unlawful if it “conveys a threat of reprisal or force, a promise of benefit or a
preference for one employee organization over another”] (emphasis added).) And the

25
safe harbor principle does not apply to claims under the PEDD. (Regents of the
University of California (2021) PERB Decision No. 2755-H, pp. 28-34.)
C. 	Interference with Senate Affairs Adding to Evidence of Domination
Conduct that violates EERA section 3543.5, subdivision (d) rises to the level of
domination when it results in less than an arm’s length relationship between the
employer and the labor organization, such that it appears to be a “company union”
relationship. (Clovis, supra, PERB Decision No. 2904, pp. 36-41.) Unlawful support,
encouraging employees to support one organization over another, and interference in
internal affairs may, but need not, be part of such a showing. (Ibid.; see, e.g.,
Redwoods Community College District (1987) PERB Decision No. 650, adopting
proposed decision at p. 65 (Redwoods) [“The [employer’s] assistance in conducting
elections, and in providing photocopying, stationery, mail service, release time,
meeting rooms and even money points to domination, as well. Indeed, one gets the
definite impression that, but for this considerable amount of support at almost every
level of operation, [the employee council] could not generate internally the necessary
machinery to operate”].)
We have already noted that the District’s unlawful support to the Senate was
sufficient to establish domination even absent the District’s extensive other conduct
making its relationship with the Senate not at arm’s length. And as explained above,
we found further evidence of domination in the District’s conduct tending to encourage
employees to support the Senate over ACE. But there was also other substantial
evidence of domination, and the District fares no better in asking us to reconsider our
findings as to such other conduct.

26
As detailed in Clovis, supra, PERB Decision No. 2904, one of the multiple
bases for finding domination was that “the District has reviewed employee complaints
and conducted investigations filed by and against senators and Senate officers in
those capacities.” (Id. at p. 39.) The District does not challenge these factual findings,
instead disputing their legal significance. This is not a valid basis for reconsideration,
and the District waived this argument by failing to except to the ALJ’s finding that: “The
District considers it to be responsible for responding to complaints against District
employees, which includes Faculty Senate Officers/Senators in their capacities as
Faculty Senate Officers/Senators.” The ALJ, noting that “the District reviewed
employee complaints between Faculty Senate Officers/Senators” found this was part
of the District’s extensive, unlawful interference with the Senate’s internal affairs. Yet
the District took no exceptions to the ALJ’s factual or legal conclusions.
In the alternative, even were we to consider the District’s reconsideration
request on this issue, we would reject it. The District admits that it “investigate[d] and
responded[ed]” to employee complaints against Senate officers but contends this does
not show interference and domination because the District merely “documented the
outcome” and “offered recommendations, not directives.” If that were factually true, it
would still show interference in internal affairs. But the record shows more than
offering recommendations. For instance, in the District’s responses to Kristin
Heimerdinger’s two complaints regarding the Senate, the District stated that it “places
high expectations” on Senate officers, and they failed to meet these expectations. And
the District noted that, as a result, it had addressed its expectations with Senate
officers. Moreover, the District promised that the Senate would establish policies and

27
procedures regarding attendance at Senate meetings. The Board’s findings in this
regard are consistent with the ALJ’s findings, to which no party excepted.11
The District suggests a counterexample in which it allegedly offered
recommendations rather than directives. Specifically, the District points to its response
to Stacey Schiro’s complaint about whether a recent election for Senate vice president
had been fair (and about the Senate president’s communications with teachers, as
well as the need for Senate bylaw revisions). The District asserts that the author of the
District’s response, Deputy Superintendent Norm Anderson, believed the Senate must
make its own decisions. Far from showing a prejudicial error of fact, however, this
example supports our original finding. The best evidence is Anderson’s written
response to the complaint, which we quoted in Clovis, supra, PERB Decision
No. 2904. (Id. at pp. 16-17.) The District ignores that in this response, it reached more
than a dozen conclusions, including the District’s decision to move the Senate
president’s office to a location within the District’s human resources office, as well as
the District’s promises that: (1) “Clear expectations for prompt responses from the
[Senate] President to those with inquiries will be communicated. An expectation of a
11 The District claims that at the time that Heimerdinger filed her second
complaint, it did not know that “Heimerdinger was apparently already involved in ACE
activities behind the scenes, which in retrospect raises a serious question about
whether [it] is manufactured evidence.” We reject this argument on both procedural
and substantive grounds. The District does not ask us to supplement the record with
new evidence supporting its argument or explain why its proposed new evidence was
not available earlier. In any event, the District admits that it was following its internal
policy in investigating and resolving employee complaints against the Senate,
meaning there is no serious dispute that the evidence related to both of
Heimerdinger’s complaints did nothing more than lay bare a significant aspect of the
District’s domination and interference in internal affairs.

28
response within 24 hours should be reasonable”; (2) “Prior to the next round of
elections, [the Senate] Executive Board will work in conjunction with the Human
Resources Department to create a standard operating procedure for elections at the
site and district level”; and (3) “Area Superintendents and site Principals will be
thoroughly informed of the current concerns and plans of action. They will work
diligently in their site [Senate] meetings and Area [Senate] meetings to address any
concerns and insights.” (Ibid.)
Even were we inclined to go beyond the content of the District’s response and
consider Anderson’s intent in writing it, this would not help the District. Anderson
testified that the Senate was “sort of self-governing as much as they could until there
were troublesome times.” Thus, even in a litigation posture, the furthest the District’s
own witness was willing to testify was that in non-troublesome times the Senate was
“sort of” self-governing, “as much as they could.” And in the same answer, Anderson
testified that such attempts at partial self-governance gave way when trouble
emerged, and he further acknowledged that he was testifying about such a troubled
time.
The District also takes issue with our finding that “the Senate repeatedly invited
the District to become enmeshed in Senate internal elections, and the District
accepted this invitation each time.” (Clovis, supra, PERB Decision No. 2904, p. 39.)
The District acknowledges multiple types of support it provided in running Senate
elections, including that Associate Superintendent of Human Resources Barry Jager
and Director of Educational Technology Chris Edmondson assisted the Senate in
running four elections in the 2020-2021 school year. In seeking to downplay the

29
significance of such support, the District has identified no prejudicial error of fact, but
rather takes issue with the Board’s legal conclusion on such evidence. This is not a
proper basis for reconsideration and involves another issue the District waived by
failing to file exceptions challenging the ALJ’s conclusions.12
While we do not excuse these procedural errors, in any event the District
entirely misses the mark in its hoped-for application of law to facts. One problem is
that in its 33-page reconsideration brief, the District does not mention or discuss any
precedent prohibiting an employer from playing any role in a labor organization’s
elections. (See, e.g., Poway Unified School District (2015) PERB Decision No. 2441,
adopting proposed decision at p. 45; Redwoods, supra, PERB Decision No. 650,
adopting proposed decision at p. 65.)
Furthermore, the District focuses on the Senate’s April 2021 election, when
Jager provided technical support (as we noted in Clovis, supra, PERB Decision
No. 2904, p. 18), but the District sidesteps Jager’s more significant involvement in the
Senate elections held during October 2020 and February-March 2021. The District
does not challenge our factual findings that in the October 2020 election, Jager
facilitated the use of District personnel and software to conduct the election, sent an
e-mail attaching a link allowing senators to vote, placed the District’s approval on the
process by thanking senators for their participation “with this very important process,”
and then took on the role of tabulating and announcing the election results. (Id. at
12 While the ALJ characterized Jager’s role in one election (held in October
2020) as “more perfunctory than substantive,” the District ignores that the ALJ found
the District’s overall conduct vis-a-vis Senate elections to be an example of the
District’s extensive involvement in the Senate’s internal affairs.

30
pp. 15-16.) Nor does the District challenge our findings that the District ran every part
of the February-March 2021 Senate elections—beginning with Jager’s “e-mail
announcing and describing the nomination process, the timeline, and the election
procedures, while assuring senators that voting ‘will be completed with support from
Technology and Human Resources to ensure a fair and transparent election
process’”—all the way through receiving the nominations and lastly tabulating and
announcing the election results. (Id. at pp. 17-18.)
The District next contends that we erred in finding that “Senate elected officers
are subject to the District’s Professional Conduct clause.” (Clovis, supra, PERB
Decision No. 2904, p. 14.) Yet, that is exactly what the Senate’s bylaws provide. This
finding also matches the ALJ’s findings, to which no party excepted.
With respect to our observation that the District had "significant involvement in
important internal Senate affairs, including Senate elections, efforts to revise Senate
bylaws, and misconduct complaints against Senate officers” (Clovis, supra, PERB
Decision No. 2904, p. 14), we have already addressed the District’s extensive
involvement in Senate elections and in resolving complaints against Senate officers.
Regarding the other example in the above-noted observation, the District took a strong
position on the need for bylaw revisions and on the revision process that should
ensue. Specifically, in responding to Schiro’s complaint, the District wrote that:
“• A thorough revision of the FS Bylaws should occur. This
should be led by the FS Vice-President, per the existing
bylaws. The process for this should be fully transparent and
include members from all Areas and teaching levels of the
District. If all Areas and levels are not represented, then
district administration can help recruit members. In addition,

31
the FS will have the full support of our Human Resources
Department and legal resources to assist, as needed . . .”
(Clovis, supra, p. 16.)
The District notes that bylaw revisions had not occurred as of the close of the
record, and there was no evidence that the District took any action regarding revisions
beyond what it said in response to Schiro’s complaint. Indeed, that is what we found
as well, noting that as of the close of the record, the 2008 Senate bylaws were
unchanged. (Clovis, supra, PERB Decision No. 2904, p. 13.) Thus, the District’s
conduct with respect to bylaw revisions (as noted in the above-quoted passage from
its response to Schiro’s complaint) was certainly milder than its involvement in Senate
elections and in complaints against Senate officers. But not every aspect of the
District’s conduct must be severe for us to conclude that the Senate appeared to be a
company union. The District’s statement about the need for bylaw revisions—including
details as to the consultative process that should occur—adds to the overall evidence,
and it does not remotely allow the District to discount its more significant involvement
in Senate elections and complaints against Senate officers.
The District claims that there is “no evidence” supporting our conclusion that the
District moved the Senate president’s office to the District’s administration building, in
the human resources department, to improve collaboration between the Senate and
District human resources staff. But the District admitted that fact in writing. Its
response to Schiro’s complaint, made close in time to the decision to move the Senate
president’s office, stated as follows:
“• The position of the FS President, and the important
support this person provides, would be better served by
centrally locating the President in the Human Resources

32
office at the District Office East building that will enable
more accountability and support for the position and other
Executive Board members with release time.”
(Clovis, supra, PERB Decision No. 2904, p. 16.) Moreover, our finding was in accord
with the ALJ’s findings, to which the District acceded when it failed to file exceptions.
The District asserts that we accepted unsupported allegations in finding that
“District organizational charts show the Senate president reporting to the District
superintendent.” (Clovis, supra, PERB Decision No. 2904, p. 24.) This claim is
puzzling, as the District’s organizational charts from multiple school years show the
Senate president reporting to the District superintendent, which also matches the
ALJ’s conclusion, to which no party excepted.
The District points to other charts that did not show such a reporting
relationship, and the District also cites Schiro’s testimony denying that the
superintendent was her supervisor. However, even had the District timely filed
exceptions on these points rather than waiving its argument, there are multiple factors
that would cause us not to disregard the charts showing the Senate president as being
under the District superintendent. For instance, the District’s budget showed all its
monetary support to the Senate under an accounting category labeled “0400
Superintendent.” (Clovis, supra, PERB Decision No. 2904, p. 20.) And there is other
supporting evidence that helps to explain why the District created organizational
charts showing the Senate president as under the superintendent. For example, we
found that Associate Superintendent Jager “advised the Senate on myriad internal
Senate issues.” (Id. at p. 25.) While the District disagrees with this phrasing, its
reconsideration request admits that Jager “answer[ed] questions presented to him” by

33
Senate leaders and that he responded to “questions from [Senate] Executive Board
members requesting assistance.” The record demonstrates that Jager and Senate
officials discussed internal election issues, bylaws, and the application of Roberts
Rules of Order to Senate meetings, and more generally Jager’s availability to serve as
a “sounding board” for internal Senate issues. On these points, too, the District waived
any argument to the contrary by not excepting to the ALJ’s corresponding conclusions.
The District’s reconsideration request repeats its earlier admissions that it
reviewed and corrected draft Senate meeting minutes. The District explains that it did
so to ensure the accuracy of information provided by District administrators. That is,
indeed, exactly what we found. (See Clovis, supra, PERB Decision No. 2904, p. 24
[“Senate leaders share drafts of their meeting minutes with District administrators.
Indeed, before the Senate distributes such minutes to teachers, the District makes
corrections regarding District statements as well as regarding policies and laws.”].)
This finding also tracks the ALJ’s conclusion, to which no party excepted. Although the
District believes it is prejudicial to rely on the fact that the Senate shared all parts of its
draft minutes (not just those involving information the District provided the Senate), we
disagree. If the Senate wished to check certain facts with the District, there were ways
for it to do so without sending the District its entire draft minutes. For instance, it could
have sent only a draft excerpt related to information the District provided.
The District’s reconsideration request comments as follows: “To the extent that
the facts in the Decision refer to the District as responsible and/or directly involved in
directing or assisting in the content of any [Senate] communications to teachers,
including, but not limited to: written correspondence, announcements, written

34
statements, [Senate] Weekly Wrap-Ups, emails, or website announcements (see
Decision, pp. 27-32) any such suggestion is factually incorrect and prejudicial to the
District.” But we did not suggest that the District was responsible for the content of the
Senate’s communications. Rather, we explained that: (1) in the months after ACE’s
April 5 announcement of its organizing campaign, the District and the Senate each
took pains to publicize to teachers their mutual, unlawful understanding of the
Senate’s favored position; and (2) these communications from the Senate and the
District each tended to interfere with employee free choice.13
Along the same lines, the District takes issue with our observation that the
Senate’s violations of EERA were “synergistic” with the District’s violations. (Clovis,
supra, PERB Decision No. 2904, p. 52.) Our findings vis-à-vis the Senate, briefly,
were that it falsely held itself out as teachers’ sole representative and took the same
tack as the District by criticizing ACE for working to take away Senate stipends and
Senate officers’ release time. (Id. at pp. 49-53.) Contrary to the District’s claim of
factual inaccuracy, we did not attribute the Senate’s statements to the District, nor did
we find the District liable for them. Rather, we observed there was a reinforcing effect
between the District’s violations and those of the Senate. Each entity conveyed a
similar false and unlawful message to teachers: the Senate is the teachers’ sole
13 We also noted that the Senate did not oppose disestablishment or, indeed,
file any document in response to ACE’s exceptions, thereby waiving its position and
reaffirming its dependence on the District by relying on the District to argue against
disestablishment. (Clovis, supra, PERB Decision No. 2904, p. 57.) The same pattern
has recurred in the reconsideration context, where the Senate has again failed to
submit any filing of its own.

35
representative unless and until teachers vote otherwise, and ACE is disrupting the
status quo and threatening the Senate’s financial support.
Lastly, the District contends our decision was “highly prejudicial” because we
allegedly inferred that the District had a “nefarious intent” when it signed a 2014
Memorandum of Understanding (MOU) with the Senate. The MOU purported to create
a “collectively bargained alternative ratio” of students to teacher in the early grades,
which was higher than the default of 24:1 that would otherwise be required for the
District to obtain class-size reduction funds from the state, and the District relied on it
to maintain an average class size in its early grades that exceeded 24 students, while
still receiving the aforementioned funds. We made no mention of “nefarious intent,”
and noted that intent is irrelevant to employer domination. (Clovis, supra, PERB
Decision No. 2904, p. 36.)
Moreover, the District’s reconsideration request concedes multiple points about
the MOU, which support our finding that it was additional evidence lending the Senate
the appearance of a company union. First, the District admits that “the MOU was not
actually collectively bargained,” even though “it was reflected as such” in that its terms
specifically stated it was creating a collectively bargained alternative ratio, and the
District relied on it for that purpose. The District further admits that if “the District did
not have the MOU and failed to meet the 24 to 1 ratio, there would have been a
significant financial penalty on the District. The District was under the impression that
if this MOU was in place, it would not have to worry about class size audits and
possible penalties.” These admissions evidence employer domination, as the Senate
signed off on a purported collectively bargained alternative ratio that was not, in fact,

36
collectively bargained. Indeed, we found it telling that this MOU, signed to allow the
District to obtain class size reduction money while maintaining higher class sizes, was
the only MOU between the District and the Senate. (Clovis, supra, PERB Decision
No. 2904, p. 40.) While non-employer-dominated labor organizations across California
engage in true collective bargaining over class size among other terms and conditions
of employment, typically with teachers’ preference for lower class sizes in mind, the
Senate signed off on a single MOU without engaging in collective bargaining, because
it benefitted the District financially. In sum, this reconsideration argument is
substantively meritless in that the District admits the very facts underlying our
conclusion. It is also procedurally improper in a reconsideration request because it
challenges our legal analysis, and it belatedly challenges a conclusion the ALJ
reached that became binding when neither party excepted to it.
II. 	The District’s Reconsideration Request as to Remedy
As noted above, one reason the District’s reconsideration request is
procedurally improper is the District uses it to challenge how the Board applied the law
to the facts, as well as to argue points of law that the District previously argued (or
could have argued but instead waived). These flaws are especially apparent in the
District’s challenge to the Board’s choice of remedy. While an error or omission in a
remedial order can be a proper subject of reconsideration, this represents “a narrow
avenue” allowing corrections to inadvertent errors and “does not allow parties to
reassert remedy arguments that we have already considered and rejected.” (Ventura,
supra, PERB Decision No. 2758a-M, pp. 2-3.)

37
Even were we to assume for the sake of argument that the District’s challenge
to our remedy were procedurally proper, it would nonetheless be unmeritorious. As
explained in Clovis, supra, PERB Decision No. 2904, the Legislature has vested
PERB with broad authority to decide what remedies are necessary to effectuate the
purposes and policies of EERA and the PEDD. (Id. at p. 53.) Here, the District’s
reconsideration request does not challenge this principle. Instead, the District first
asks us to reconsider our spoken notice order and then asks us to reconsider our
disestablishment order. We address each issue in turn.
A. 	Spoken Notice
As explained in Clovis, supra, PERB Decision No. 2904, spoken notice is
appropriate if customary notice methods, in combination with other remedies, are
insufficient. (Id. at p. 65.) The ALJ found spoken notice was proper, and the District
took no exceptions. ACE, however, excepted to certain details of the ALJ’s spoken
notice order, which required three events at which a District representative would read
PERB’s notice, within 30 days after the order becomes final (irrespective of whether
that occurs during summer break, winter break, or the fall or spring semesters), unless
“otherwise scheduled by mutual agreement.” The proposed decision further indicated
that the three events could be in person and/or by videoconference, “or in any other
manner designed to reach the greatest number of certificated employees.”
We adjusted this order for multiple reasons, including to reduce the likelihood
that the parties would bring appeals to us over the District’s compliance with the order,
and to tailor it to efficiently reach the greatest number of teachers given the reality of
teaching schedules. Indeed, because the District operates more than 50 schools, the

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proposed decision erred if it allowed the District to hold three in-person events with no
remote options. Although one could alternately interpret the ALJ’s proposed order to
require remote options—since three in-person events would not reach the greatest
number of teachers—that ambiguity made further appeals likely. And the ALJ’s order
allowed the District to choose who would read the notice, thereby potentially
delegating the role to a low-level employee. Also, it is unknown when our order will no
longer be subject to appeal, and there is a chance that the 30-day period after this
decision becomes final may fall wholly or partially during a summer or winter break. In
certain circumstances, the District may be able to control the timing given its ability to
file and/or withdraw appeals. We comprehensively addressed these myriad issues by
directing the District to create a video showing the superintendent reading the notice,
and to play the video at regularly scheduled meetings of teachers at each school,
during the school year. (Clovis, supra, PERB Decision No. 2904, pp. 64-65.)
The District argues that the Board’s remedial order “would serve to minimize,
undermine, publicly shame, humiliate, and/or punish” its current superintendent, that
the order compels her “to read a verbatim statement of guilt for matters she was not
involved in and based on findings with which she disagrees,” and that “[c]ompelling a
specific individual to read the Appendix verbatim is coercive and raises First
Amendment issues.” While the District does not flesh out its constitutional argument, it
is not a proper basis for reconsideration and is contrary to precedent. (See, e.g.,
Barke v. Banks (9th Cir. 2022) 25 F.4th 714, 719 [public officials’ statements in their
official capacities do not implicate individual constitutional rights].) To the extent the
District asks us to consider new evidence—the fact that the District changed

39
superintendents a year ago—the District did not timely seek to reopen the record
when it knew that fact, nor would taking note of that fact change our order. Choosing
the superintendent to read the notice does not reflect any finding of bad intent on the
superintendent’s part, as intent is irrelevant to the violations found. (Clovis, supra,
PERB Decision No. 2904, p. 36.) Rather, the superintendent is the District official
whose participation in the spoken notice will have the greatest tendency to convince
listeners that the District will, in fact, comply with the law going forward.
We do not agree that the person responsible for fulfilling the spoken notice
order will suffer humiliation, and the District does not explain why a lower-level District
employee, rather than the District’s highest official, should be the one to suffer such
hypothetical humiliation. To the extent the District relies on the fact that its current
superintendent was merely an associate superintendent when ACE filed this charge
and the ALJ held the formal hearing, the District fails to demonstrate that having new
leadership undertake a fresh start is fundamentally inconsistent with having its new
leader responsible for fulfilling the spoken notice order. Indeed, the opposite appears
more likely. The superintendent’s spoken notice will clarify that the District will no
longer become enmeshed with or prop up any employee organization, circulate
communications that violate its duty of strict neutrality, preferentially deploy public
funds and in-kind support to an employer-dominated organization, or otherwise
interfere with employee free choice.
The District also points out that the Board’s only other spoken notice order did
not specify video recording or a particular speaker. (Mt. San Jacinto Community
College District (2023) PERB Decision No. 2865, p. 43.) However, that case involved

40
a smaller employer with fewer sites, and the violation was retaliation against two
faculty members. We specifically noted that we would “stop short in these
circumstances from ordering a particular reader,” though we directed that the charging
party union should have the right to decide whether spoken notice should occur within
60 days of the order becoming final or at the start of the next semester, and we
directed the District to “ensure the widest possible attendance." (Id. at pp. 43 & 45.)
Here, in contrast, the District is larger with far more sites, and the violations are more
longstanding and wide reaching. These circumstances warrant a video recording by
the District’s superintendent.14
B. 	Disestablishment
As explained in Clovis, supra, PERB Decision No. 2904, disestablishment is the
appropriate remedy if a school district dominated a nonexclusive representative. (Id. at
pp. 55-57.) The District does not take issue with this principle. Instead, it focuses on
the Board’s alternative ground for ordering disestablishment—the fact that the
14 While we consider decisions of the National Labor Relations Board (NLRB)
only for their persuasive value, NLRB precedent supports specifying exactly how an
employer must provide notice of a decision against it. (See, e.g., HTH Corporation
(2014) 361 NLRB 709, 713-716 [specifying the high level executives, supervisors, and
managers who must attend spoken notice readings, with sign-in sheets required; and
further requiring that notice of NLRB’s findings and separate explanation of rights be
electronically posted and physically posted at worksite for three years, mailed to all
employees, supervisors, and managers, published twice weekly for eight weeks in two
local publications chosen by the NLRB, and provided to all new employees,
supervisors, and managers within 7 days of hiring, for three years); United States
Service Industries (1995) 319 NLRB 231, 232 [requiring that notice must be translated
to Spanish, and specifying that operations manager must read the notice or be
present while NLRB agent reads it, “because the record indicates that the employees
view him as the personification of the Company.”])

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District’s other violations were egregious, recurrent, and persistent. (Id. at p. 4.) While
we have already addressed the main problems with the District’s argument (see ante
at pp. 12-13 and Clovis, supra, pp. 57-63), we note additional aspects of the District’s
reconsideration request that we have not yet discussed.
The District argues that we improperly assumed the District would not comply
with a cease-and-desist order, and that there is no evidence that the Board’s 1984
remedial order was ineffective. However, we did not presume that the District would
fail to comply with any order. Rather, we noted that disestablishment is necessary
even when domination has ended. (Id. at pp. 58 & 62.)
Nor is there any doubt that the District is a repeat violator. In its 1984 decision
in Clovis Unified School District, supra, PERB Decision No. 389, the Board found the
District failed to remain neutral as between competing organizations seeking to
represent teachers, in part by preferentially providing the Senate with “typing and
distribution of minutes, the gift of stationery and the provision of released time to
attend meetings.” (Id., adopting proposed decision at pp. 63 & 71.) Almost four
decades later, in contrast, the support the District provided the Senate, while
withholding from ACE, amounted to $280,052 in 2021-2022 alone, even ignoring
in-kind support. Thus, after decades of dominating the Senate, when the District once
again faced competing employee organizations, its unequal support was exponentially
larger than it was in the early 1980s.
Other facts also show recurrence. For instance, the Board’s 1984 decision
details how the District credited the Senate with eliminating a “much-disliked workday.”
(Clovis Unified School District, supra, PERB Decision No. 389, p. 20 & adopting

42
proposed decision at p. 71.) Forty years later, the District credited the Senate with
improvements while attacking ACE for seeking an injunction “to stop the District from
providing such support to our teachers,” including stipends for senators, release time
for Senate officers, and other forms of support. (Clovis, supra, PERB Decision
No. 2904, p. 32.)
While aspects of the District’s violations in this case differ from the violations
found in the Board’s 1984 decision, it is still accurate to characterize the District as a
repeat violator. And there is a central through-line running through both the repeat
violations and those which are new: in each instance, the violations supported the
Senate over a competitor affiliate of the California Teachers Association.
The District argues that our disestablishment order bars employees from
supporting any alternative to ACE. Not so. The order specifically and equally protects
free organizing by any alternative organization that is not the Senate or its alter ego or
alias. Among other options, this includes Independent Clovis Unified Educators
(ICUE), the organization that anti-ACE employees formed when they abandoned their
plan to create an alias to the Senate. (Clovis, supra, PERB Decision No. 2904, pp. 33,
59 & 62) Indeed, the Board’s order affords ICUE the same expanded period as ACE
for collecting proof of support. (Id. at pp. 63-64 & 69.)
Finally, the District claims disestablishment infringes on its employees’
associational rights. As with its constitutional argument regarding spoken notice, the
District fails to cite supporting authority for this argument, which PERB has long since
rejected. (Redwoods, supra, PERB Decision No. 650, p. 67). Moreover, the District
has no standing to raise such a claim, and it is not a proper basis for reconsideration.

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For all the reasons set forth in this decision and in Clovis, supra, PERB
Decision No. 2904, disestablishment is the proper remedy.
ORDER
Respondent Clovis Unified School District’s request for reconsideration of the
Public Employment Relations Board’s decision in Clovis Unified School District (2024)
PERB Decision No. 2904 is DENIED.
Chair Banks and Member Nazarian joined in this Decision.