Clovis Unified School District (PERB I063E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION OF CLOVIS EDUCATORS,
CTA/NEA,
Charging Party,
v.
CLOVIS UNIFIED SCHOOL DISTRICT,
Respondent.
Case Nos. SA-CE-3040-E
SA-CE-3047-E
PERB Order No. IR-63
December 16, 2021
Appearances: Bush Gottlieb by Erica Deutsch and Michael Plank, Attorneys, and
California Teachers Association by Megan Degeneffe, Staff Counsel, for Association
of Clovis Educators, CTA/NEA; Fagen Friedman & Fulfrost by David A. Moreno,
Katy McCully Merrill, and Lynn Beekman, Attorneys, for Clovis Unified School District.
Before Banks, Chair; Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: These cases are before the Public Employment Relations
Board (PERB or Board) on a request for injunctive relief filed by the Association of
Clovis Educators, CTA/NEA (ACE). ACE is engaged in ongoing efforts to organize
certificated employees of the Clovis Unified School District. ACE contends that
injunctive relief is necessary to prevent the District from continuing to hamper its
organizing campaign by, among other things, financially supporting and granting
preferential treatment to a rival employee organization, the Clovis Unified Faculty
Senate, in violation of the Educational Employment Relations Act (EERA), and
sending communications that deter or discourage employee support for ACE in

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violation of the Prohibition on Public Employers Deterring or Discouraging Union
Membership (PEDD).1 As explained below, we grant the request because there is
reasonable cause to believe the District violated—and continues to violate—EERA
and PEDD and, due to the nature of the alleged violations and their potential impact
on ACE’s organizing efforts, an injunction is necessary to preserve the efficacy of any
final Board order.
FACTUAL BACKGROUND
In evaluating ACE’s request for injunctive relief, we rely on the allegations in
ACE’s unfair practice charges, as well as information contained in sworn declarations
submitted by ACE and the District (to the extent such information does not conflict with
ACE’s charge allegations), exhibits attached to those declarations, and other
information obtained by the Office of the General Counsel (OGC) during its
investigation of the request. (Sweetwater Union High School District (2014) PERB
Order No. IR-58, p. 2; City of Fremont (2013) PERB Order No. IR-57-M, p. 19, fn. 8.)
While at this stage of the proceedings we presume ACE’s allegations and information
to be true, they “will be subject to verification or contradiction” at a formal evidentiary
hearing. (Sweetwater Union High School District, supra, PERB Order No. IR-58, p. 2.)
Accordingly, our preliminary determinations in this decision are not binding on PERB
or the parties in subsequent proceedings in these cases. (San Mateo County Superior
1 EERA is codified at Government Code section 3540 et seq. PEDD is codified
at Government Code section 3550 et seq. All statutory references are to the
Government Code unless otherwise indicated.

3
Court (2019) PERB Order No. IR-60-C, p. 3, fn. 1; City of Fremont, supra, PERB
Order No. IR-57-M, p. 19, fn. 8.)
I. 	The Relationship between the Senate and the District
The District has distributed a document called “Doc’s Charge” to its teachers
upon hire.2 Doc’s Charge, which appears to serve as the District’s mission statement,
provides in pertinent part that the District is “proud that we do not have collective
bargaining.” Consistent with this statement, the District tells newly-hired employees
that the District is a nonunion district and they are represented by the Senate. Doc’s
Charge is also posted in the District’s Boardroom.
The Senate has acted as a nonexclusive representative of District teachers
since 1977. (Clovis Unified School District (1984) PERB Decision No. 389, adopting
proposed decision at pp. 31-32 (Clovis).)3 The Senate’s bylaws provide that it is “to be
an effective advocate for teachers at all levels of policy making, procedures, and
expenditures, in partnership with our administrators, fellow employees, and community
2 In this decision, we use the term “teachers” as a shorthand to include
teachers, mental health professionals, and other certificated educational employees of
the District.
3 EERA differentiates between employee organizations based on whether they
have been formally certified or recognized as an exclusive representative. An
exclusive representative is “the employee organization recognized or certified as the
exclusive negotiating representative of public school employees, . . . in an appropriate
unit of a public school employer.” (§ 3540.1, subd. (e).) Thus, “nonexclusive
representative” refers to an employee organization, as defined by section 3540.1,
subdivision (d), that has not been recognized or certified as the exclusive
representative. (See, e.g., Mt. Diablo Unified School District (1978) PERB Decision
No. 68, pp. 9-10.)

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as a quality educational team.” The District views the Senate as the representative for
teachers, as evidenced in the District’s Board Policy No. 4118:
“The Clovis Unified School District Faculty Senate is the
representative body for teachers of the District. When a
teacher is called to a meeting with his/her administrator(s),
irrespective of the purpose of the meeting, the teacher may
request to have a Faculty Senate representative or other
person of his/her choosing present at the meeting.”
The District and Senate do not have a negotiated collective bargaining agreement, but
the Senate participates in numerous District committees and meetings where input
from various employee organizations is shared as part of the District’s decision-
making process.
Senators are school site representatives who are elected every two years by
teachers from that school. The District pays Senators an annual stipend of $889. The
Senate is led by an Executive Board consisting of a President, Vice President,
Parliamentarian, Secretary, and two Communication positions. The members of the
Executive Board are elected by Senators and serve two-year terms. The District pays
each Executive Board member a $1,538 annual stipend. The Senate President is
relieved from teaching duties full-time to work on Senate business. The Vice President
and Secretary receive 40 percent release time from their teaching duties to perform
Senate duties. The District considers these three Executive Board members to be
“teacher[s] on special assignment.”
II. 	Additional District Support of the Senate
The Senate does not collect any dues or other monies from teachers to cover
representation or operating expenses. Instead, the District provided the Senate with its

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entire operating budget of $3,764 for the 2020-2021 school year. The Senate has
used a District credit card to purchase refreshments for meetings. The Senate submits
the receipts for these purchases to the Superintendent’s office for approval.4
After a teacher complained to the District about the Senate’s cancellation of
meetings, the Associate Superintendent agreed with her that the meetings should not
have been cancelled, and then moved the Senate President’s office in order to keep
an eye on the President. This office space is within the District’s headquarters and is
used to meet with teachers and conduct other Senate business. The District has
permitted the Senate President to use a District vehicle for traveling to work sites.5
The Senate does not reimburse the District for the salary and benefits its members
receive while performing Senate business or for its operating expenses, office space,
and other resources and services the District provides.
The Senate conducts its business at monthly meetings. District representatives
regularly attend Senate meetings and provide updates and presentations to teachers.
The Senate President, Vice President, and Secretary are included in standing
meetings with District administrators, including the District Superintendent, Deputy
Superintendent, and Associate Superintendent of Human Resources. The Senate
President was included in the 2019-2020 organizational chart for the District.
4 According to the District’s opposition papers, filed on August 13, 2021, it no
longer allows the Senate to use this credit card.
5 According to the District’s opposition papers, it no longer allows the Senate
President to use the vehicle.

6
The District maintains a website at www.cusd.com. The Faculty Senate website
is a part of the District’s website at www.cusd.com/FacultySenate.aspx. As recently as
June 2021, the Senate published its meeting minutes on this website.
In September 2020, following a dispute over the validity of an internal Senate
election, the Senate requested that District Associate Superintendent for Human
Resources and Employee Relations Barry Jager assist the Senate with a revote. Jager
assured Senate members that the vote would be done fairly and properly, and
arranged for the District’s Technology Department to provide a link to be used by
Senate members to cast their votes.
In Spring 2021,6 following multiple resignations in the Senate, the Senate again
asked Jager to assist with its election. Jager was asked to reassure the group
regarding the integrity of the election, and again arranged for the District’s Technology
Department to provide a link for Senate members to cast their votes. On February 26,
Jager e-mailed Senators soliciting nominations for the Senate President. The e-mail
included a timeline and a job description, and stated: “I want to ensure you that this
process will be taken with tremendous pride and all necessary provisions are in place
for a fair and accurate voting process.” An attachment to the e-mail directed that all
nominations were to be sent to Jager.
On March 1, Jager presided over an emergency meeting of the Senate held to
discuss electing a new President. On March 5, the Senate distributed a Senator
6 All further dates are 2021, unless otherwise indicated.

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Elections notice, which quoted language from Doc’s Charge that the District is “proud
that we do not have collective bargaining.” The notice included the District’s logo.
In 2018, a Senate member sought to make changes to the Senate’s bylaws and
had to clear the proposed changes with the District. In 2021, the Senate undertook
some revisions to its bylaws. One proposed revision provides for the removal of
Senators and Officers from office for unprofessional conduct as defined in District
policies and that such conduct shall be referred to the District’s Human Resources
Department. The proposed revisions had not been implemented when ACE filed its
injunctive relief request.
ACE alleges that the Senate receives legal support from the District, citing an
e-mail from a member of the Senate’s Executive Board stating that she had just met
with “legal” in Human Resources. The District admits that it did offer to have its legal
counsel review the Senate’s bylaws, but the offer was not accepted.
Each year the Senate and the District’s Human Resources Department jointly
develop a “Climate Assessment” survey, which is intended to solicit teacher input
about their working conditions and views on representation. Teachers receive the
survey via their work e-mail. They are not required to participate but are permitted to
answer the survey during paid time.7 For at least the past five years, the survey has
included the following five questions asking teachers to provide their views and
opinions regarding the Senate and how it represents teachers:
7 The District asserts that employees “are not identified” when answering the
survey, though the information before us at this stage does not specify what types of
anonymity protections may be in place.

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1. 	“Does Faculty Senate support teachers?
2. 	“Do I have access to Faculty Senate through my
Senator?
3. 	“Does my Senator represent our staff without
personal bias?
4. 	“Does my Senator keep our staff informed?
5. 	“Do I want Faculty Senate to continue as my
representative group?”
The District’s Human Resources Department disaggregates the results for each
site, showing both the results of the multiple-choice selections and written comments.
Senators then follow up at their site on the issues identified as problems by teachers.
They typically do so in two stages. First, Senators meet with their school principals to
review the results. Soon thereafter, Senators discuss the results with teachers without
any administrator present. Senators are then expected to establish Quality
Improvement Teams to address concerns.
III. 	ACE’s Organizing Campaign and the District’s Response
ACE began organizing around July 2020 but did not officially notify the District
of its efforts at that time. On August 21, 2020, then-Senate Vice President Amy Kilburn
met with some teachers who expressed their concerns about the Senate not
adequately representing them. When Kilburn later met with District administrators,
they were upset that Kilburn had met with the teachers and asked for details about
who attended the meeting. Kilburn later heard that the District believed ACE
representatives attended this meeting. Consequently, Senate representatives now ask
District administration before meeting with teachers in large groups if District

9
administrators will not be present. In at least one case, the District denied such a
request.
In January, Jager reached out to Kilburn, telling her that he knew teachers were
unhappy and “talking about things.” He asked what the teachers want and “what does
Amy Kilburn want to stop or to feel better about Faculty Senate.”8 When Kilburn met
with Jager again, she told him she wanted to create a “safe space” for teachers to
learn about unionizing and she wanted administrators to stop asking Senators about
who was supporting unionization.
On or about January 25, the Senate held a meeting where there was a
discussion about the lack of leadership within the Senate and the “threat” of
employees unionizing. The parliamentarian unilaterally decided to table the issue until
the next meeting. On March 22, the Senate tabled a discussion about questions
Senators received from teachers regarding unions pending “guidance from
administration on what could be discussed during a Faculty Senate meeting.”
On April 5, more than 70 teachers sent an open letter to the District and the
broader community in which they formally announced they had created ACE; they
identified themselves as the ACE Organizing Committee. The letter stated 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. The
letter also asked the District to respect their “legally protected, collective decision to
8 Jager submitted a declaration disputing this allegation and asserting that he
asked Kilburn if teachers were concerned that they did not have a strong enough
voice through the Senate.

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unionize and to not exercise influence, interference or intimidation around [their]
efforts.” Shortly thereafter, District administrators shared the letter amongst
themselves, with one commenting “this makes me sick.”
In April, at the Senate President’s request, the District’s Technology
Department created a new e-mail list that improved the Senate’s ability to send
targeted e-mails to teachers on a regular basis, including weekly updates. On April 9,
Jager e-mailed teachers explaining that it is legal for outside representation groups to
send e-mails to teachers, but anyone who does not wish to receive such
communications can ask to be removed from the ACE’s e-mail list. On May 11, a
teacher responded and asked Jager if a request to remove her from the ACE’s e-mail
list required the sender to do so. Jager responded that the representation group
should honor the request, and when the teacher said they did not, Jager asked the
teacher to send the group’s response to him so he could “look into their language.”
On April 30, the ACE Organizing Committee wrote to the District that it intended
to file a petition for recognition with PERB in the upcoming months. ACE expressed its
concerns about the District showing “clear favoritism” toward the Senate and using
District resources to oppose ACE. Jager responded on May 14 on behalf of the District
and assured ACE that the District “intends to adhere to [its legal] obligations [under
EERA] during the ongoing activities” and that it “wish[es] to correct this impression”
that it practices “clear favoritism.” Jager stated that the Senate “has served as
advocates and representatives for teachers as a non-exclusive representative.” Jager
wrote that the District has “worked collaboratively” with the Senate, just as it has with

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other employee organizations, and that is “simply a fact of how business has been
conducted.”
On May 27, Superintendent Eimear O’Farrell sent an e-mail to employees
announcing a $4,000 one-time payment to employees. She also stated that the
Employee Compensation Committee (ECC), which includes Senate representatives,
was recommending a 5.5 percent increase to salary schedules, a two-day decrease in
duty days for the 2021-2022 school year, and an increase in the District’s contribution
to its health benefits fund. The Superintendent credited these recommendations to the
priorities identified on behalf of “employee groups” including the “Faculty Senate,
Classified Unit Business Support Senate, and CSEA Chapter 250.”
On June 1, after ACE filed an unfair practice charge regarding the District’s
failure to give ACE notice of these changes, the District offered to meet and discuss
them. On June 7, the parties met to discuss the recommendations, which were on the
District Board’s June 9 meeting agenda. ACE expressed concern over discussing
predetermined recommendations which had already been discussed with other
employee groups.9 ACE requested representation equal to the Senate on all
committees and at any events. ACE also asked the District for financial information
shared with other employee groups since April 5. As of the date of the injunctive relief
request, the District had not provided the requested information.
On June 9, the District’s Board held a meeting where it considered and
approved an action item entitled “Public Disclosure of Collective Bargaining
9 The District contends that ACE did not propose any changes, and notes that
the District’s Board did not act on the recommendations until after this meeting.

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Agreement Related to Employees,” which contained a notation that the “Certificated”
unit agreement was “Settled.”
On June 23, Jager notified Kilburn by e-mail that the District would “provide
ACE and Faculty Senate the same representation at meetings once they resume.”
On July 13, representatives from ACE and the District met to discuss a neutral
process for organizing. One of the items discussed was the District permitting the
Senate to give presentations at new employee orientation. The District stated that
because the orientation would be virtual this year, the Senate would not be presenting,
and thus ACE would also be excluded to observe neutrality. When ACE asked to be
present when the District meets with the Senate, the District instead offered ACE
separate meetings on the same agenda. ACE also requested time to present at the
District’s governing board meetings, as the Senate has done in the past, but the
District refused as there were no plans for the Senate to be part of those meetings any
longer. ACE also raised concerns over the unequal financial and material support the
District was providing the Senate. The District did not address these concerns or
provide a timeline for correction.
On August 6, ACE again met with District administrators and asked about the
District’s efforts to address the unequal organizing environment, including financial
support for the Senate. The District was unable to provide any information regarding
any steps it had taken in response to ACE’s concerns.
That same day, ACE representatives asked Jager for equal access to the
“CUSD Sender” e-mail list, which the Senate President uses to send e-mails to the

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entire district, because the District’s other e-mail lists are not as accurate. As of
August 13, the District had not provided ACE access to this e-mail list.
IV. 	Effects of District Support of the Senate on ACE’s Organizing Campaign10
The District’s continuing support for the Senate after the announcement of
ACE’s organizing campaign has caused confusion about the legal status of ACE
vis-à-vis the Senate. On approximately April 1, ACE organizer Laura Riley spoke to a
teacher who believed that the Senate already represented teachers and was “our own
type of union” that made decisions with the District. Riley spoke to another teacher
who thought the Senate was already the elected representative of teachers. In April or
May, Riley met with another teacher who also believed the Senate was an elected
representative and asked if ACE’s attempt to unionize teachers was “breaking the
law.” The teacher remained confused even after Riley discussed the law regarding
unionization. Since April, Riley has received an average of two or three questions
every week from teachers who are confused about the legal status of the Senate and
ACE.
10 The District argues that the statements alleged in this section cannot be
considered because they are hearsay. It is generally accepted that hearsay evidence
may be considered in deciding whether temporary injunctive relief is appropriate in an
unfair labor practice case. (Coffman v. Queen of the Valley Medical Center (9th Cir.
2018) 895 F.3d 717, 729; Asseo v. Pan American Grain Co., Inc. (1st Cir. 1986) 805
F.2d 23, 26.) Moreover, testimony that employees feared retaliation by their employer
for supporting a union is subject to the hearsay exception for the declarant’s existing
state of mind. (Hirsch v. Corban Corporations, Inc. (E.D. Pa. 1996) 949 F.Supp. 296,
303-304; Lightner v. Dauman Pallet, Inc. (D.N.J. 1992) 823 F.Supp. 249, 252, fn. 2.)
Such testimony is “not accepted to establish the employer acts which caused fear, but
simply that the fear existed. That fear is highly relevant to the propriety of injunctive
relief.” (Lightner v. Dauman Pallet, Inc., supra, 823 F.Supp. at p. 252, fn. 2.)

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In addition to causing confusion, the District’s continuing support for the Senate
has led multiple teachers who initially expressed support for ACE to later revoke their
support. One teacher who supported ACE in February said in March that the “new”
Senate needed a chance, and then he himself became a Senator. Another teacher
told Kilburn she supported ACE, but then in April changed her mind because she was
impressed with the District’s response to ACE and wanted to see how things turned
out.
Teachers also fear that the District will retaliate against them for supporting
ACE. At the end of April, teachers reported hearing of a District principal telling
teachers that if employees sign a petition in support of ACE, they must want to work at
a particular school site where students with behavior issues are sent, and that if Area
Superintendent Steve France found out he would transfer employees there.
Employees understood this as a threat and became reluctant to sign a petition in
support of ACE.
One teacher who supported ACE before its efforts to organize became public
later told Kilburn she “wanted her signature back” so the District would not be able to
know she supported ACE. One teacher reportedly told an ACE organizer that “signing
for ACE was like signing a death sentence.” One teacher arranged to sign his support
for ACE in private so that no one would see him meeting with an ACE supporter. Other
teachers requested that ACE organizers keep their association with ACE secret so
that a family member applying for a position with the District would not face retaliation.

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On June 4, the last day of the school year, a Senator told Kilburn she should go
to a so-called “union district.” Many other teachers have simply opted not to support
ACE because it is “not the Clovis way.”
PROCEDURAL HISTORY
On June 1, ACE filed its unfair practice charge in Case Number SA-CE-3040-E.
On August 6, ACE amended that charge and filed a separate unfair practice charge in
Case Number SA-CE-3047-E. On August 11, ACE filed an injunctive relief request as
to both cases. The parties filed briefs and numerous declarations over the ensuing
week. On August 19, the Board granted the injunctive relief request, and OGC issued
complaints in each case.
The complaint in Case Number SA-CE-3040-E mainly alleges that the District
violated EERA when it, among other things: (1) failed to remain neutral between ACE
and the Senate; (2) dominated, interfered with the administration of, and contributed
financial or other support to the Senate; (3) limited the rights of ACE and employees to
communicate with teachers; and (4) acting through the Senate, issued several
communications that interfered with protected rights. That complaint also alleged that
the District violated PEDD section 3550 by deterring and discouraging employees from
supporting ACE.
The complaint in Case Number SA-CE-3047-E alleges that the District violated
EERA by, among other things: (1) failing to provide financial information that the
District had shared with other employee organizations; (2) interrogating, surveilling,
surveying, and/or polling teachers concerning their beliefs, positions, or intentions
regarding unionization, collective bargaining, goals or aims of employees favoring or

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disfavoring unionization, or the reasons employees may favor or disfavor certain
organizations; (3) unilaterally improving teachers’ working conditions thereby granting
them a benefit; (4) failing to address ACE’s concerns about providing preferential
treatment to the Senate; and (5) retaliating against Kilburn for protected activities by
discontinuing an extra class and associated stipend that she had enjoyed for 15 years.
DISCUSSION
“Upon issuance of a complaint charging that any person has engaged in or is
engaging in an unfair practice, the board may petition the court for appropriate
temporary relief or restraining order.” (EERA, § 3541.3, subd. (j).) “PERB cannot seek
an injunction unless it finds (1) ‘reasonable cause’ to believe an unfair practice has
been or will be committed; and (2) that injunctive relief is ‘just and proper.’” (San
Mateo County Superior Court, supra, PERB Order No. IR-60-C, p. 2, citing Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881,
895-896 (Modesto).) Even when both prongs of the Modesto test are satisfied, the
Board retains substantial discretion to decide whether injunctive relief should be
sought and, if so, the appropriate scope of such relief. (El Rancho Unified School Dist.
v. National Education Assn. (1983) 33 Cal.3d 946, 961; Modesto, supra, 136
Cal.App.3d at p. 895 [PERB “carefully considered and investigated the situation” and
sought a “rational, practical” combination of interim injunctive relief measures]; San
Mateo County Superior Court, supra, PERB Order No. IR-60-C, pp. 2-3.)
As the above procedural history indicates, these cases involve numerous
alleged violations, implicating a wide variety of legal theories. Several of the alleged
violations, however, are the type that tend to erode support for ACE if not enjoined.

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We therefore exercise our discretion to seek a narrow injunction based on this subset
of alleged violations because it is the least amount of interim relief necessary to
prevent irreparable harm and preserve our remedial authority.
I. 	Reasonable Cause
To establish the “reasonable cause” prong of the Modesto test, the Board must
sustain “a minimal burden of proof.” (Modesto, supra, 136 Cal.App.3d at p. 902.) “It
need not establish an unfair labor practice has in fact been committed[,] nor is the
court to determine the merits of the case.” (Ibid.) “[T]he key question is not whether
PERB’s theory would eventually prevail, but whether it is insubstantial or frivolous.”
(Id. at p. 897, italics omitted.)
One category of ongoing alleged conduct that must be enjoined, because it
infringes on employee free choice in a long-lasting manner that cannot be remedied
after-the-fact, involves the District violating EERA section 3543.5, subdivision (d) by:
(1) dominating or interfering with the administration of the Senate; (2) contributing
financial or other support to the Senate; and (3) violating its duty of strict neutrality by
favoring the Senate over ACE. A second category of alleged conduct creates a similar
problem: the District has communicated with teachers in a way that deters or
discourages support for ACE in violation of PEDD. As set forth below, ACE has
established reasonable cause to believe that the District committed—and continues to
commit—such unfair practices in violation of EERA and PEDD.
A. 	Reasonable cause exists to believe the District has violated—and
continues to violate—EERA section 3543.5, subdivision (d).
EERA section 3543.5, subdivision (d) makes it unlawful for a public school
employer to “[d]ominate or interfere with the formation or administration of any

18
employee organization, or contribute financial or other support to it, or in any way
encourage employees to join any organization in preference to another.” To show a
prima facie violation of EERA section 3543.5, subdivision (d), the charging party must
allege facts which demonstrate that the employer’s conduct tends to interfere with the
internal activities of an employee organization or tends to influence employees’ choice
between employee organizations. (Santa Monica Community College District (1979)
PERB Decision No. 103, p. 22 (Santa Monica); Redwoods Community College District
(1987) PERB Decision No. 650, adopting proposed decision at p. 53 (Redwoods).)
Whether an employer has violated EERA section 3543.5, subdivision (d) is based on
the totality of the circumstances. (Redwoods, supra, PERB Decision No. 650, adopting
proposed decision at p. 54.) Proof that an employer intended to unlawfully dominate,
assist, or influence employees’ free choice is not required. (Id., adopting proposed
decision at pp. 56-57.) Nor is it necessary to prove that employees actually changed
their support as a result of the employer’s conduct. (Santa Monica, supra, PERB
Decision No. 103, p. 22.)
The charges allege that the District violated all three prohibitions in section
3543.5, subdivision (d). We consider each in turn.
1. 	Allegations that the District is dominating or interfering with the
administration of the Senate
EERA section 3543.5, subdivision (d)’s prohibition on “[d]ominat[ing] or
interfer[ing] with the formation or administration of any employee organization” looks to
whether the employer’s conduct tends to interfere with the employee organization’s
ability to maintain an arm’s length relationship with the employer. (City of Arcadia
(2019) PERB Decision No. 2648-M, pp. 24-25 (Arcadia); Azusa Unified School District

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(1977) EERB Decision No. 38, adopting recommended decision at p. 6, fn. 3
(Azusa).)11 In such cases, PERB considers the level of the employer’s involvement in
the employee organization’s internal affairs. (Arcadia, supra, PERB Decision
No. 2648-M, p. 23; see Poway Unified School District (2015) PERB Decision
No. 2441, p. 54 [“an employer must not intervene to address the lawfulness of a
union’s internal procedures affecting voting or to police the union’s actions, lest it be
held liable for interfering in the administration of the union”].)
At this stage, the information before us does not resolve whether the District
created the Senate.12 But the available information does show that the District is
intimately involved in the Senate’s internal affairs.
The District’s official policy holds the Senate out as the representative for
teachers, thereby giving it the District’s imprimatur. For example, the District’s official
disciplinary policy provides that a teacher may have a Senate representative present
at disciplinary meetings. The District’s organizational chart shows that the Senate
President reports to the District Superintendent. The District and the Senate jointly
develop the yearly Climate Assessment Survey, which is administered by school site
Senators.
11 Prior to January 1, 1978, PERB was known as the Educational Employment
Relations Board or EERB.
12 The District’s superintendent sent a letter to faculty in 1977 endorsing the
Senate concept after it had been proposed “as an alternative to exclusive
representation and collective bargaining.” (Clovis, supra, PERB Decision No. 389,
adopting proposed decision at pp. 31-32.) It is unclear who made the proposal the
Board referenced in Clovis, or what steps were then taken to create the Senate.

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As a result of a teacher’s complaints to the District regarding the conduct of the
Senate, the District performed an investigation, and informed the teacher that the
Senate determined it would take action, including amending its bylaws to address the
issue. One of these proposed revisions provides that removal from office of Senators
and Officers for unprofessional conduct—as defined in District policies—would be
referred to the District’s Human Resources Department.
Following concerns by members of the Senate regarding the validity of the last
two internal elections, the Senate asked Associate Superintendent Jager to step in to
assure members that the vote would be done fairly and properly. While the District
downplays its involvement as only providing links for members to vote, the fact that
the District involved itself to alleviate Senate members’ concerns over the election
indicates that the Senate is able to receive assistance from the District in internal
organizational matters and creates the impression that the District is directly involved
in administering the Senate.
When questions regarding unionization arose at a Senate meeting, a motion
was made “to table [the] Union conversation until we could receive guidance from
administration on what could be discussed during a Senate meeting.” A former
member of the Executive Board needed the District’s permission to revise the
Senate’s bylaws, and likewise needed the District’s permission before meeting with
teachers in large groups at school sites. The Senate thus seeks the District’s
permission and advice on various internal and organizational matters.
District administrators regularly attend and give presentations at Senate
meetings. The Senate also sits on several committees with other employee

21
organizations and administrators that provide recommendations to the District Board
on employment matters. After a teacher complained to the District about the Senate’s
cancellation of meetings, the Associate Superintendent agreed with her that the
meetings should not have been cancelled, and then moved the Senate President’s
office in order to keep an eye on the President.
The District’s de facto recognition of the Senate has continued since ACE gave
notice of its organizing campaign, including the continued domination of and
interference with the Senate’s internal affairs, further contributing to the unmistakable
conclusion that the Senate is a “company union,” by: (1) hosting the Senate’s
webpage on the District’s website; (2) directing its Technology Department to assist
the Senate in two elections; (3) offering to have its legal counsel review the Senate’s
bylaws; (4) allowing the Senate to use the District’s Climate Assessment Survey to
poll teachers about their views on the Senate; and (5) setting up an e-mail list for the
Senate President to communicate with teachers via the District’s e-mail system.
Taken together, the totality of the circumstances establishes reasonable cause
to believe that the District has had—and continues to have—pervasive involvement in
the affairs of the Senate in violation of EERA section 3543.5, subdivision (d). (Arcadia,
supra, PERB Decision No. 2648-M, p. 24; Redwoods, supra, PERB Decision No. 650,
p. 2 and adopting proposed decision at pp. 54-55.)
2. 	Allegations that the District is providing financial support and other
assistance to the Senate
EERA section 3543.5, subdivision (d) prohibits contributing “financial or other
support” to an employee organization. In determining if an employer has violated this
prohibition, we examine the totality of the employer’s conduct to determine whether its

22
support would tend to inhibit employees in their free choice regarding a bargaining
representative or interfere with the representative’s maintenance of an arm’s length
relationship with the employer. (Arcadia, supra, PERB Decision No. 2648-M, pp. 24-
25.) This is an objective test; it is not necessary to look into the employer’s intent or
the employees’ subjective reaction to the employer’s assistance to the employee
organization. (Arcadia, supra, PERB Decision No. 2648-M, pp. 24-25; NLRB
v. Vernitron Elec. Components, Inc., Beau Products Div. (1st Cir. 1977) 548 F.2d 24,
26.)13
The most common type of unlawful support case involves an employer that
provides support to one of two competing nonexclusive representatives. The Board
usually resolves such cases by deciding whether the employer failed to remain strictly
neutral between the two competing organizations. Here, ACE and the Senate are both
nonexclusive representatives and the District therefore must treat them equally with
respect to financial or other support. (Redwoods, supra, PERB Decision No. 650,
adopting proposed decision at pp. 54-57; Clovis, supra, PERB Decision No. 389, p. 9.)
We thus must decide whether the District failed to remain strictly neutral by providing
support to the Senate but not to ACE.14
13 Federal judicial and administrative precedent is not binding on PERB, though
we may find such precedent persuasive in construing California’s public sector labor
relations statutes. (City of Sacramento (2020) PERB Decision No. 2702-M, p. 9,
fn. 13.)
14 As an early Board decision recognized, “it may be an unfair practice to render
assistance to an employee organization even if there is no other organization in
competition with it.” (Azusa, supra, EERB Decision No. 38, adopting recommended
decision at pp. 6-7.) Because that situation is not present here, we need not decide

23
Clovis, supra, PERB Decision No. 389, is instructive. There the Board found
that the District violated EERA by giving assistance and support to the Senate that it
did not also provide to the Clovis Unified Teachers Association (CUTA), a competing
nonexclusive representative. (Id. at p. 8.) The assistance and support consisted of
typing and distribution of minutes, and provision of stationery and release time to the
Senate, which was not offered to CUTA. (Ibid.) The Board also found that the District’s
crediting the Senate with being responsible for teachers not having to work the final
Saturday of the school year, reorganized grievance procedures, and a proposed
salary increase demonstrated further favoritism toward the Senate. (Id. at p. 10.)
Given that the District unlawfully favored the Senate by not affirmatively offering the
same support to CUTA, the Board found it “not necessary to decide whether, as the
District claims, its conduct constituted ‘permissible cooperation’ rather than unlawful
support.” (Id. at p. 9.) Consistent with its decision not to reach that issue, the Board’s
remedial order prohibited the District from preferencing one nonexclusive
representative over another, but it did not bar the District from providing equal support
to both nonexclusive representatives. (Id. at p. 21.) Thus, while the Board noted that
the District’s “relationship of support for the Faculty Senate [] not only exceeded its
statutory obligations [to a nonexclusive representative], but tended to create the
what level of employer support is unlawful in the absence of a competing employee
organization. Board decisions also have recognized that an employer may provide
support to an exclusive representative without having to provide the same support to a
competing nonexclusive representative. (See, e.g., County of San Bernardino (2018)
PERB Decision No. 2556-M, pp. 10 & 18; West Contra Costa Healthcare District
(2010) PERB Decision No. 2145-M, p. 22.) Because the Senate is not an exclusive
representative, that line of cases does not apply here.

24
appearance, if not the fact, of an ‘in-house’ or ‘company’ union” (id. at p. 19), the
Board’s overall approach suggested that the District may not have violated EERA
section 3543.5, subdivision (d) had it affirmatively offered the same support to CUTA.
In Redwoods, supra, PERB Decision No. 650, lack of neutrality combined with
other factors led the Board to order the employer to cease supporting the preferred
nonexclusive representative. There, the employer formed a Classified Employees
Council and provided it with release time and a revolving fund for social and
recreational activities. The Council was 100 percent employer funded; it did not
receive dues from employees.15 The employer also conducted elections for the
Council, allowed it to use district stationery and copying facilities, and sometimes
distributed its questionnaires to employees. (Id., adopting proposed decision at p. 58.)
Although the employer’s financial assistance was limited, the Board nonetheless found
it was “impermissible activity under Section 3543.5[, subdivision] (d)” (id., adopting
proposed decision at p. 57) and ordered the employer to disestablish the Council. The
Board reached this conclusion in a context in which the employer failed to offer the
same support to the charging party (an exclusive representative), the Council was
100 percent employer-funded, and the employer dominated the Council by forming it
and assisting with administration. (See id., adopting proposed decision at pp. 54-57.)
15 Just as offering support equally to competing nonexclusive representatives
makes it less likely that either organization appears to be a company union, so too
does an organization having a dues structure as a primary means of funding make it
look less likely that some level of employer financial support equates to employer
control.

25
As noted in Redwoods, PERB precedent does not clearly demarcate the line
between permissible and impermissible employer support. (Redwoods, supra, PERB
Decision No. 650, adopting proposed decision at p. 53.) But neither Redwoods nor
any other Board decision has held that financial or other support is unlawful when it is
not accompanied by other conduct indicating preferential treatment, domination, or
interference. Indeed, in Redwoods the Board considered all the assistance in its
totality: “[w]hile any of these forms of assistance, standing alone, may not rise to the
level of unlawful conduct, when considered in their totality they present a pattern of
employer assistance which cannot realistically be described as mere cooperation.”
(Id., adopting proposed decision at p. 59.) Board precedent thus does not absolutely
bar an employer from providing release time and other support, either as a result of
bargaining with an exclusive representative or by offering such support on an equal
basis to all nonexclusive representatives.
In the present case, the information before us suggests the District provides a
high level of support, in absolute terms, to the Senate because the Senate is
100 percent employer-funded. Also, as discussed ante, the District dominates and
interferes with the Senate’s internal affairs and, as discussed post, expresses a
preference for the Senate over ACE, while failing to offer ACE the same support the
Senate receives. Under existing Board precedent, this is sufficient to establish
reasonable cause to believe the District violated—and continues to violate—EERA

26
section 3543.5, subdivision (d)’s prohibition on contributing financial or other support
to an employee organization.16
3. 	Allegations that the District breached its duty to observe strict
neutrality
In cases where two employee organizations are competing for the right to
represent the same employees, the employer must remain neutral. (County of
Monterey (2004) PERB Decision No. 1663-M, adopting proposed decision at
pp. 17-18.) To establish a violation of EERA section 3543.5, subdivision (d)’s
prohibition on “encourag[ing] employees to join any organization in preference to
another,” the test is “whether the employer’s conduct tends to influence [free] choice
or provide stimulus in one direction or the other.” (Santa Monica, supra, PERB
Decision No. 103, p. 22.)17
On April 5, ACE notified the District that it was an employee organization that
represented certain District teachers. On April 30, ACE informed the District that it
intended to file a recognition petition with PERB and asserted its rights and the
District’s obligations under EERA. ACE requested that the District provide it with
16 Since we make no conclusive factual findings at this preliminary stage, we
express no opinion as to whether the District could lawfully provide such support to the
Senate had it offered equal support to ACE and avoided other dominating, interfering,
and preferential conduct.
17 When one organization is an exclusive representative and the other is not,
remaining neutral may include continuing to bargain with the incumbent union and to
honor contractual and legal obligations to that union. (RCA Del Caribe, Inc. (1982) 262
NLRB 963, 965-966; West Contra Costa Healthcare District, supra, PERB Decision
No. 2145-M, p. 22.) But if the employer goes beyond such commitments, it must be
careful to do so equally. Here, since neither the Senate nor ACE is an exclusive
representative, they are owed exactly equal treatment.

27
notice and the opportunity to meet and discuss any changes to teachers’ terms and
conditions of employment the District contemplated. ACE expressed its concern that
the District and Senate had incorrectly represented to teachers that the Senate was
their representative, existing policies demonstrated favoritism by the District for the
Senate, the District continued to provide the Senate with resources including paid
release time, and the Senate was using that time to oppose ACE.
Around this same time, Senate representatives participated in the ECC and
recommended changes to the working conditions of teachers. Then the
Superintendent credited these recommendations to the Senate and the other
organizations participating on the committee. During April and May, the Senate made
statements to teachers that it is the representative for teachers, and that it opposes
unionization at the District.
In opposing the injunctive relief request, the District claims it will include ACE in
committee meetings and asserts it met multiple times with ACE over the summer.
While the District further asserts that it will treat both organizations equally, it has not
done so. Since ACE announced its organizing campaign, the District stopped
providing a vehicle and credit card for Senate use, but continues to provide stipends to
Senate members, release time for Executive Board members, an operating budget,
and use of an office to perform Senate duties.
Likewise, the District continued to maintain policies declaring that the Senate is
the representative of teachers, including for disciplinary matters. In April, the Senate
assisted the District with distribution of the Climate Assessment Survey, which
solicited teachers’ views on the Senate’s representation.

28
District representatives also continued to meet with the Senate about matters
fundamental to the employment relationship (e.g., length of the school year, wages,
health benefits), and made a significant change in benefits without first notifying or
meeting with ACE. Senate representatives participating in the ECC prepared
recommendations for the District’s Board on compensation and other employment
issues. The District, despite being aware of ACE’s status as a nonexclusive employee
organization, did not notify ACE that this committee was meeting. On May 27,
Superintendent O’Farrell sent an e-mail to employees announcing a $4,000 payment
and informed them that the ECC was also recommending a 5.5 percent increase to
salary schedules, two fewer duty days, and an increase in the District’s contribution to
its health benefits fund. The Superintendent credited these recommendations to the
priorities of employees represented by the Senate and the other organizations
participating on the committee.
An employer that does not maintain strict neutrality in the face of competing
employee organizations is deemed to encourage employees to prefer one
organization over another, in violation of employees' right to choose an organization
free of employer interference. (Azusa, supra, EERB Decision No. 38, pp. 7-8.) Here, it
is undisputed that the District continues to provide financial support and other
assistance to the Senate and is not offering the same level of support to ACE. As we
observed in Clovis, supra, PERB Decision No. 389, “strict neutrality clearly required
the District either to discontinue these practices, . . . or, to the extent that its conduct
constituted ‘permissible cooperation,’ to affirmatively make similar assistance available
to all employee organizations.” Its failure to do either sends the message that it favors

29
the Senate over ACE, thereby unlawfully tending to influence employee choice
between the two organizations. The District’s history of disregarding our decision in
Clovis, and in failing to treat the two competing organizations equally again in 2021,
further belies its promises to do so.
Additionally, just as in Clovis, supra, PERB Decision No. 389, the District
credited the Senate with securing a benefit for certificated employees—here, a $4,000
payment, 5.5 percent salary increase, two-day decrease in duty days, and an increase
in the District's contribution to its health benefits; there, eliminating the last Saturday of
the school year as a workday, reorganized grievance procedures, and a proposed
salary increase. This conduct has the tendency to encourage employees to support
the Senate over ACE in order to continue receiving Senate-negotiated benefits from
the District. (Id. at pp. 19-20.) Thus, there is reasonable cause to believe the District
breached its duty of strict neutrality in violation of EERA section 3543.5,
subdivision (d).
A charging party union need not establish employer intent or actual diminution
in its level of support in order to succeed in a charge under EERA section 3543.5,
subdivision (d). (West Contra Costa Healthcare District (2011) PERB Decision
No. 2164-M, p. 6.) Nonetheless, as discussed post, there is substantial information
before us suggesting that the District’s conduct has led to diminished support for ACE,
thereby further supporting our conclusion that there is reasonable cause to believe the
District violated—and continues to violate—EERA section 3543.5, subdivision (d) by
showing preference for the Senate over ACE.

30
B. 	There is reasonable cause to believe the District has deterred and
discouraged support for ACE in violation of PEDD section 3550.
PEDD section 3550 provides that “[a] public employer shall not deter or
discourage public employees or applicants to be public employees from becoming or
remaining members of an employee organization, or from authorizing representation
by an employee organization, or from authorizing dues or fee deductions to an
employee organization.” “‘Deter or discourage’ means to tend to influence an
employee’s free choice regarding whether or not to (1) authorize union representation,
(2) become or remain a union member, or (3) commence or continue paying union
dues or fees.” (Regents of the University of California (2021) PERB Decision
No. 2755-H, p. 21 (Regents).) To establish a prima facie case of a section 3550
violation, the charging party need only show that the challenged conduct or
communication is reasonably likely to deter or discourage employee free choice, not
that the conduct actually did deter or discourage employees. (Id. at p. 24.) In cases
that involve union organizing, section 3550 leaves it to employees on opposite sides of
the organizing debate to lobby their colleagues without the employer’s involvement,
except where a business necessity compels the employer to take some action that
may also incidentally influence employee free choice. (Alliance Marc & Eva Stern
Math & Science High School, et. al. (2021) PERB Decision No. 2795, pp. 70-71
(judicial appeal pending).)
1. 	Content of the District’s Communications
We begin by examining the content of the District’s communications during
ACE’s organizing campaign. (Regents, supra, PERB Decision No. 2755-H, pp. 41-42.)
Several days after ACE announced its organizing campaign to the District, Associate

31
Superintendent Jager sent an e-mail to teachers stating that anyone who does not
wish to receive communications from ACE should request to be removed from their
ACE’s e-mail list.
On May 14, in response to a letter from ACE expressing its concern that the
District was showing clear favoritism to the Senate, Jager responded that the Senate
“has served as advocates and representatives for teachers as a non-exclusive
representative.” He also said the District’s close relationship with the Senate is “simply
a fact of how business has been conducted.”
On May 27, Superintendent O-Farrell sent an e-mail to employees crediting the
Senate with securing a $4,000 one-time payment to employees, and recommending a
salary increase, a two-day decrease of duty days, and increased District contributions
to healthcare premiums.
The content of these communications tends, in several ways, to influence
employees’ choice whether or not to authorize representation by ACE. First, they
create the impression that the Senate is already the teachers’ established bargaining
representative, causing teachers to doubt ACE’s status as a legitimate employee
organization. Such communications have led some teachers to question whether there
would be any point to organizing since they are already represented and have left
others confused about the relative status of the Senate and ACE.18 Some teachers
question whether ACE is an “illegal” interloper that they should not support. By casting
18 Although the charging party need not allege or prove that the employer’s
conduct actually deterred or discouraged employee support for a union (Regents,
supra, PERB Decision No. 2755-H, p. 24), we are not required to ignore such
information when it is present.

32
doubt on ACE’s legitimacy, the District’s communications tend to deter or discourage
support for ACE.
Second, the communications suggest that it is the Senate, not ACE, that can
achieve better working conditions for teachers because of its close relationship with
District administration. The District Superintendent’s e-mail to teachers gave the
Senate credit for securing a $4,000 one-time payment to employees, and
recommending a salary increase, a two-day decrease of duty days, and increased
District contributions to healthcare premiums. In Regents of the University of California
(2021) PERB Decision No. 2756-H, the university sent a flyer to unrepresented
employees who were the target of a union organizing campaign. The flyer suggested
that the wage increases of employees represented by the union were less substantial
than unrepresented employees’ wage increases, and that unrepresented employees
“already have sufficient job protections.” (Id. at p. 9.) We found this communication
tended to influence employee free choice because it suggested employees would be
better off without union representation. (Ibid.) The same tendency is present here,
where the Superintendent’s e-mail implies that ACE would not be able to obtain the
same benefits for teachers as the Senate.
Third, the communications evince the District’s animus toward unionization.
According to Doc’s Charge, which is given to newly-hired teachers and posted in the
District’s Boardroom, the District is “proud that we do not have collective bargaining.”
Additionally, in April 2021, teachers reported hearing of a principal telling teachers that
if employees signed in support of ACE’s petition, and if Area Superintendent Steve

33
France found out, he would transfer employees to a particular school site where
students with behavioral issues are sent.
The District’s communications, viewed as a whole, tended to influence
employee choice about whether or not to authorize representation by ACE by strongly
suggesting that unionization is against the District’s longstanding viewpoint and has no
place when the Senate provides the representation ACE could provide. Based solely
on the content of the communications, reasonable cause exists to believe the District
violated PEDD section 3550.
2. 	Contextual Circumstances
In addition to the content of the communications, several contextual factors
further support finding a prima facie section 3550 violation here. (Regents, supra,
PERB Decision No. 2755-H, p. 43.) First, the communications occurred against the
backdrop of the District’s longstanding opposition to collective bargaining. For
decades the District has distributed Doc’s Charge to its teachers upon hire. Doc’s
Charge, which appears to serve as the District’s mission statement, provides in
pertinent part that the District is “proud that we do not have collective bargaining.”
Consistent with this statement, the District tells newly-hired employees that the District
is a nonunion district.
Second, the communications occurred in the context of the District’s
longstanding support of the Senate as an alternative to collective bargaining. The
Senate’s bylaws provide that it is “to be an effective advocate for teachers at all levels
of policy making, procedures, and expenditures, in partnership with our administrators,
fellow employees, and community as a quality educational team.” Similarly, District

34
Board Policy No. 4118 states: “The Clovis Unified School District Faculty Senate is the
representative body for teachers of the District.” The District’s official disciplinary
policy provides that a teacher may have a Senate representative present at
disciplinary meetings. The Senate and the District thus both hold out the Senate as
the teachers’ representative in dealing with the District. This, in turn, colors teachers’
perception of the District’s communications about ACE and the Senate.
Third, the timing and repetition of the communications would tend to influence
employee free choice about supporting ACE. Many of the communications described
ante occurred in the two months after ACE announced its organizing campaign on
April 5. This timing strengthens their impact, as does circulating similar messages on a
repeated basis, which would tend to cause a reasonable employee to believe “the
message[s were] particularly urgent and important” to the District. (Regents, supra,
PERB Decision No. 2755-H, p. 44.)
Finally, as discussed ante, the District provides essentially all the resources
needed for the Senate to operate, including paying employees to engage in Senate
activities, paying the organization’s expenses, providing office space, and providing
professional services. Not only did the District administer the Senate’s internal
elections, but the District also exercised oversight of the Senate’s representational
functions, and prompted the Senate to revise its bylaws which, in their current
proposed form, would increase District control and assistance to the organization.
Although the content of the communications themselves tended to influence
employee choice, that tendency was strengthened by the context in which the
communications occurred—shortly after ACE announced its organizing campaign, by

35
high-ranking administrators of the District, which has long supported the Senate as the
District’s preferred alternative to collective bargaining. This context further supports
finding reasonable cause that the District deterred or discouraged support for ACE in
violation of PEDD section 3550.19
II. 	Just and Proper
To meet the second prong of the Modesto test, PERB must demonstrate to the
court that injunctive relief is “just and proper.” “Although [interim] injunctive relief is an
extraordinary remedy, it may be used whenever an employer or union has committed
unfair labor practices which, under the circumstances, render any final order of the
Board meaningless or so devoid of force that the remedial purposes of [EERA] will be
frustrated.” (Modesto, supra, 136 Cal.App.3d at p. 903.) The “just and proper”
standard is met “[w]here there exists a probability that the purposes of [EERA] will be
frustrated unless temporary relief is granted or the circumstances of a case create a
reasonable apprehension that the efficacy of the [Board’s] final order may be nullified,
or the administrative procedures will be rendered meaningless.” (Id. at p. 902, internal
brackets and quotations omitted.) Injunctive relief is just and proper here because
certain of the District’s alleged unfair practices have the foreseeable effect of causing
employee support for ACE to vanish before PERB’s administrative adjudication
procedures are complete.
19 When a charging party establishes a prima facie violation of section 3550,
“the burden then shifts to the employer to plead and prove a business necessity as an
affirmative defense.” (Regents of the University of California, supra, PERB Decision
No. 2756-H, p. 7.) Because we make no conclusive factual findings at this preliminary
stage, any affirmative defense the District may raise to the section 3550 allegation
must be resolved at a formal evidentiary hearing. (Id. at p. 9.)

36
“PERB’s injunctive relief authority, when invoked by employees or employee
organizations, serves two purposes: to protect the integrity of the collective bargaining
process, including the right of employees to choose their representative organizations
and the right of employee organizations to organize in the workplace; and to preserve
the effectiveness of PERB’s remedial power while the merits of the case are being
decided.” (Trustees of the California State University (East Bay) (2013) PERB Order
No. IR-56-H, p. 4 (Trustees), citing Frankl v. HTH Corp. (9th Cir. 2011) 650 F.3d 1334,
1355 (Frankl).) Like the authority vested in the National Labor Relations Board by the
National Labor Relations Act (NLRA) section 10, subdivision (j), “PERB’s injunctive
relief authority seeks to vindicate the public interest, rather than purely private
rights.”20 (Trustees, supra, PERB Order No. IR-56-H, p. 4, citing Miller v. California
Pacific Medical Center (9th Cir. 1994) 19 F.3d 449, 455, overruled on other grounds,
Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7.) In labor board
injunction cases, “the public interest is to ensure that an unfair labor practice will not
succeed because the [b]oard takes too long to investigate and adjudicate the charge.”
(Frankl, supra, 650 F.3d at p. 1365.) “In this way, the injunctive relief available through
collective bargaining statutes differs from traditional injunctive relief available through
the civil judicial system.” (Trustees, supra, PERB Order No. IR-56-H, p. 4.)
20 The NLRA is codified at 29 U.S.C. section 151 et seq. NLRA section 10,
subdivision (j) provides, in relevant part: “The Board shall have power, upon issuance
of a complaint as provided in subsection (b) [of this section] charging that any person
has engaged in or is engaging in an unfair labor practice, to petition any United States
district court, within any district wherein the unfair labor practice in question is alleged
to have occurred or wherein such person resides or transacts business, for
appropriate temporary relief or restraining order.” (29 U.S.C. § 160, subd. (j).)

37
As provided for in collective bargaining statutes, “interim relief is designed to
prevent employers from using unfair labor practices in the short run to permanently
destroy employee interest in collective bargaining. To allow such interference with a
unionization effort would make the [b]oard’s remedial process ineffective simply
because it is not immediate.” (Pye v. Excel Case Ready (1st Cir. 2001) 238 F.3d 69,
75.) Courts consequently have recognized that “the disappearance of the ‘spark to
unionize’ may be an irreparable injury for the purposes of” injunctive relief. (Ibid.; see
Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1192 [“[a]s time
passes, the benefits of [representation] are lost and the spark to organize is
extinguished. The deprivation to employees from the delay in bargaining and the
diminution of union support is immeasurable”].)
Injunctive relief is just and proper when an employer is using a company union
to hinder an outside union’s efforts to organize its employees. For example, in Fuchs
v. Jet Spray Corp. (D. Mass. 1983) 560 F.Supp. 1147 (Fuchs), the court granted an
injunction where the employer established a committee to resolve employee
grievances and then negotiated a collective bargaining agreement with the committee
in the face of an outside union’s organizing campaign. (Id. at pp. 1155-1156.) The
company’s president created the committee, had his secretary take notes during its
meetings that occurred on company time, and gave committee members free run of
the plant and ready access to supervisors. (Id. at pp. 1150.) Company management
also told employees that their complaints could be resolved without the help of
“outsiders.” (Ibid.) As a basis for granting injunctive relief, the court observed that “the
[company’s] recognition confers upon the [committee] a certain favored status, and the

38
contract it negotiated serves to solidify its position as employee representative.” (Id. at
p. 1156.) As the court recognized, failure to grant injunctive relief “may make a fair
election in the future impossible.” (Ibid.)
As in Fuchs, the employer in Hirsch v. Trim Lean Meat Products, Inc. (D. Del.
1979) 479 F.Supp. 1351 (Hirsch), recognized and collectively bargained with one
union, United, while another union campaigned to represent its employees. (Id. at
p. 1354.) The court found reasonable cause to believe that the employer unlawfully
assisted United and discharged over twenty supporters of the rival union, which “most
likely had a drastic impact upon the [rival union’s] organizational support.” (Id. at
p. 1361.) The court then explained why an injunction was just and proper:
“The longer these violations go unremedied, the less likely
it is that the policies of the Act, such as according
employees a free and unhampered right to choose their
own collective bargaining representatives, and allowing
employees to reap the benefits of collective bargaining
conducted by these representatives, can be effectuated.
Absent injunctive relief, the employer will be free to deal
with United as though that union had been properly
selected by a majority of its employees, while further
undermining the strength of [the rival union] through its
unlawful conduct.”
(Ibid.)
As in Fuchs and Hirsch, injunctive relief is necessary here to prevent the
District’s ongoing unfair practices from eroding support for ACE while PERB
adjudicates the underlying unfair practice charges. There has never been an election
or other determination that a majority of the District’s teachers support the Senate as
their representative. Nonetheless, since 1977 the District has treated the Senate as
the representative of its teachers. The District negotiates wage and benefit changes

39
with the Senate, and grants it preferential access to meetings, school sites, and the
District’s e-mail system—access it has not granted to ACE. The District also fully
funds the Senate’s operations, pays Senators and Officers stipends, and provides the
Senate with office space. Unlike the hastily recognized company unions in Fuchs and
Hirsch, the Senate is deeply entrenched as the District’s longstanding preferred
employee organization. Against this backdrop, the District’s recent communications
suggest that the Senate would be a better representative because of its existing close
relationship with District administration, and explicitly state the District remains
opposed to true collective bargaining. Without an injunction, the District can continue
to use the Senate as a cudgel to crush ACE’s organizing efforts. If those efforts are
extinguished before PERB can resolve the underlying unfair practice charges, any
remedy PERB could order at the conclusion of its adjudication process would be
meaningless.
Here, diminution of support for ACE resulting from the District’s alleged unfair
practices is not merely speculative or threatened; the declarations submitted in
support of the request for injunctive relief show that loss of support has already
occurred because of the District’s current course of action.21 Several teachers who
supported ACE prior to its public announcement have since revoked their support.
Some teachers did so out of fear that the District would know they supported ACE,
and another because he received a position on the Senate. Other teachers remain
21 To succeed in an injunctive relief request, a charging party employee
organization need not establish actual diminution in its level of support. (County of San
Joaquin (Health Care Services) (2001) PERB Order No. IR-55-M, pp. 13-14.)
Nonetheless, we are not required to ignore allegations of such diminution.

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confused about the legal status of ACE and the Senate, due in part to the District’s
and the Senate’s statements about the Senate’s role in representing teachers. And
various teachers have expressed their concern over District retaliation if it discovers
their support for ACE. This information suggests that the District’s conduct has already
negatively impacted ACE’s organizing campaign and that it will continue to be
negatively impacted if the District is allowed to continue on the same course while
PERB adjudicates the unfair practice charges.
For all these reasons, it is necessary to obtain an affirmative order for the
District to place ACE on equal footing with the Senate while ACE pursues its
organizing campaign during the pendency of PERB’s adjudication of ACE’s unfair
practice charges. Such an affirmative order “is appropriate to prevent irreparable harm
to the rival union by the defection of its supporters and to prevent the recognized
union’s entrenchment.” (Fuchs, supra, 560 F.Supp. at p. 1156; see Brown v. Pacific
Tel. & Tel. Co. (9th Cir. 1955) 218 F.2d 542, 544 [injunctive relief is appropriate when
a union may suffer irreparable harm from the “drifting away of [its] members to the
union favored by the employer[]”].) Injunctive relief is also necessary here because it is
typically not possible to provide employees retroactively the monetary and non-
monetary benefits they might have achieved had they been exclusively represented.
(See Small v. Avanti Health Systems, LLC, supra, 661 F.3d at p. 1192 [“The value of
the right to enjoy the benefits of union representation is immeasurable in dollar terms
once it is delayed or lost”].)
Without an injunction, it is likely that ACE’s organizing efforts will be further
irreparably harmed and “there exists a probability that the purposes of [EERA] will be

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frustrated [because] the efficacy of the Board’s final order may be nullified, or the
administrative procedures will be rendered meaningless” by the District’s continuing
conduct. (Modesto, supra, 136 Cal.App.3d at p. 902.) An injunction thus is necessary
to preserve PERB’s ability, if it finds the District committed the alleged unfair practices,
to restore the situation as nearly as possible to what it would have been had the
District not committed the violations.
ORDER
For the foregoing reasons, the Board GRANTS the Association of Clovis
Educators, CTA/NEA’s request for injunctive relief in Case Nos. SA-CE-3040-E and
SA-CE-3047-E.
Chair Banks and Members Krantz and Paulson joined in this Decision.