Right of Individual Representation Restored Under EERA

On June 28, 2007, the Governor signed AB 1194 (Karnette) which restores language in EERA section 3543 granting individuals a protected right of representation. In 2000, for reasons never explained (in reality, it was most likely a careless drafting error), the Legislature deleted the following language from EERA when it approved unrelated amendments:

Public school employees shall also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.

Based on the deletion of this critical language, PERB held in Woodland Joint Unified School District (2004) PERB Dec. No. 1722E, that the Legislature must have intended to eliminate the individual right of representation under EERA. Even if the Legislature did not so intend, PERB held that because of the change in statutory language, it was the Legislature’s responsibility to correct the error. Accordingly, PERB held that prior cases recognizing such a right (See Pleasant Valley School District (1988) PERB Dec. No. 708) were no longer valid in light of the change to section 3543.

Sponsored by the California Teachers Association, AB 1194 was intended to restore the individual right of representation under EERA and to statutorily abrogate PERB’s decision in Woodland Joint Unified. Under AB 1194, the following language has been added to section 3543:

Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.

Note that AB 1194 does not completely restore the language that was deleted in 2000. Not surprisingly, CTA did not see fit to restore the individual right to “refuse to join or participate in the activities of employee organizations . . .”

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