Long Beach Community College District (PERB 0765E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
LONG 	BEACH 	COMMUNITY COLLEGE
DISTRICT,
Employer,
and
CERTIFICATED HOURLY INSTRUCTORS
LONG BEACH CITY COLLEGE, 	CTA/NEA,
Employee Organization.
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) 	Case No. 	LA-R-916
PERB 	Decision No. 	765
September 	14, 	1989
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Appearances: 	O'Melveny & Myers, 	by Virginia L. 	Hoyt, 	Attorney,
for Long Beach Community College District; 	Reich, 	Adell & Crost,
by Glenn Rothner, 	Attorney, 	for Certificated Hourly 	Instructors
Long Beach City College, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions, 	filed by the Long
Beach Community College District 	(District), 	to the attached
proposed decision of 	a PERB administrative 	law judge 	(ALJ). 	The
ALJ 	found 	that 	a 	separate unit 	of 	certificated hourly 	instructors
would be 	appropriate. 	The 	District opposed the 	request 	for
recognition 	filed 	by 	the 	Certificated 	Hourly 	Instructors 	Long
Beach City College, 	CTA/NEA, 	claiming that the only appropriate
unit 	is 	a 	comprehensive one which 	includes 	all 	faculty.
The 	full-time 	faculty 	are 	in an existing bargaining 	unit
represented by the California 	Teachers Association, 	Long Beach
City College 	(CTA-LBCC), 	which was 	certified as 	the exclusive
representative on May 23, 	1978. 	In 	1977, 	CTA-LBCC sought to
_____ )

represent 	a 	comprehensive 	unit which 	included both 	full-time 	and
part-time 	faculty,1 but 	later 	agreed 	to 	drop 	the part-time
faculty 	from 	its 	request 	in the 	face 	of 	strong opposition 	from
both the 	District 	and a 	rival 	employee 	organization. 	CTA-LBCC
has 	never 	filed 	a 	unit 	modification petition nor 	taken any
official 	position 	seeking 	to 	add 	the part-time 	faculty 	to 	the
existing 	full-time unit. 	Efforts 	by one CTA-LBCC 	official 	to add
the part-time 	faculty to 	the 	unit 	have 	been rebuffed by 	the
organization.
We have reviewed the 	entire record in this 	case, 	including
the 	District's 	exceptions 	to 	the proposed decision and 	the
response thereto and, 	finding the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free of prejudicial 	error, 	we adopt the
proposed decision as 	the decision of 	the 	Board 	itself. 	In the
following discussion, 	we will address 	those of 	the District's
exceptions which we 	believe warrant 	comment.
DISCUSSION
This 	case presents 	the 	issue 	of 	how to 	resolve disputes 	over
representation petitions 	filed by 	residual 	groups 	of
unrepresented 	employees 	who were 	excluded 	from 	existing 	units 	via
voluntary recognitions 	or 	consent 	election agreements, 	but would
likely have 	been 	included 	in the unit had 	the 	issue 	been before
the 	Board at that time. 	A dilemma arises when, 	sometime 	later,
the 	excluded 	employees 	seek bargaining rights 	through 	a 	petition
1Throughout these proceedings, 	the parties 	have used the
term 	"part-time" 	faculty as 	synonymous 	with 	certificated 	hourly
instructors. 	That practice will be repeated here.
N	
2

for a 	separate unit. 	Such petitions 	are 	filed because there 	is
no mechanism 	for being 	added to the 	existing unit 	if 	the
exclusive 	representative 	of 	that unit 	chooses 	not 	to 	file 	a 	unit
modification petition.
First, 	the District excepts 	to the transfer of the case to a
different Board agent 	for decision 	subsequent 	to hearing. 	PERB
Regulation 	32168(b)2 specifically provides 	for the 	substitution
of Board agents. 	Moreover, 	in this 	case, 	there was no choice but
to 	reassign the 	case because 	the 	Board 	agent who 	conducted 	the
hearing 	resigned before 	a 	decision 	could be 	rendered.
Consequently, 	we 	find no merit 	in the District's 	exception to 	the
reassignment of 	the 	case 	subsequent to 	the hearing.
Several 	of 	the 	District's 	exceptions 	involve 	factual
findings. 	As we believe 	those 	findings 	are 	amply 	supported by
the record and, 	even if erroneous, 	are not prejudicial, 	we need
not 	address 	them further. 	The 	remaining exceptions 	may be
summarized 	as 	taking 	issue with 	the ALJ's 	weighing 	of 	relevant
factors 	in determining the appropriateness 	of 	a 	separate part-
time unit. 	Primarily, 	the District asserts 	that the ALJ erred by
2PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	Regulation 32168(b), which
has 	since been amended, 	provided, 	at all times 	relevant to this
case, that:
A 	Board 	agent 	may 	be 	substituted 	for 	another
Board 	agent 	at 	any time during 	the proceeding
at 	the discretion of 	the Chief Administrative
Law Judge 	in unfair practice 	cases 	or the
General 	Counsel 	in representation matters.
Substitutions 	of Board agents 	shall be
appealable 	only 	in accordance with 	sections
32200 or 32300.
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giving 	too 	much weight 	to 	the potential 	of 	denying 	bargaining
rights 	to 	the part-time 	faculty, 	while 	failing to properly give
the 	greatest weight 	to the 	existence 	of 	a 	strong 	community of
interest between the two 	groups 	of 	faculty.
First, 	it is 	important to note that, 	while community of
interest 	is 	undoubtedly a 	critical 	factor 	in unit determinations,
it 	is 	not the only factor to be considered. 	Section 	3545,
subdivision 	(a) 	of 	the Educational 	Employment Relations Act
(EERA)3 states:
In each 	case where 	the appropriateness 	of 	the
unit 	is 	an issue, 	the board shall decide the
question on the basis 	of 	the 	community of
interest between and 	among the 	employees 	and
their established practices 	including, 	among
other things, 	the extent to which 	such
employees 	belong to 	the 	same 	employee
organization, 	and the effect of the 	size of
the unit 	on the 	efficient 	operation of 	the
school district.
The 	District 	cites 	Peralta 	Community College 	District 	(1978)
PERB Decision No. 	77 and Modesto City Schools 	(1986) 	PERB
Decision No. 	567 	for the proposition that 	community of 	interest
is 	the paramount 	factor to be 	considered and that 	the 	lack
thereof 	must be proven 	in order to 	establish the 	appropriateness
of 	a unit that does 	not 	include all 	"classroom teachers" 	(see
EERA 	section 3545, 	subdivision 	(b)(l).) 	In Peralta Community
College 	District, 	supra, 	the Board did 	focus 	on the 	community of
interest question, 	but made a point of 	commenting that 	in other
3EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
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cases, 	particularly where 	there was 	an established negotiations
history, 	other 	factors 	might be given greater weight.
In Modesto, 	the Board did 	state 	in one passage that 	"there
must be 	a 	showing and a 	finding of 	lack of 	community of 	interest
. 	. 	." 	(in order to establish the appropriateness of a separate
unit of 	substitute teachers). 	However, 	when viewed in context,
it 	is 	clear that the Board 	fell prey to the common habit of
referring to all 	of 	the 	relevant 	criteria 	for determining
appropriate units 	as 	"community 	of 	interest." 	Any confusion
created 	by 	the passage 	cited 	above 	is 	eliminated by 	the
concluding paragraph of 	that 	opinion, 	in which the 	Board remanded
the 	case 	and 	expressly directed 	that 	all 	of 	the 	criteria 	listed
in EERA section 3545, 	subdivision 	(a) 	be considered.
The ALJ 	correctly 	found that, 	given the unwillingness 	of
CTA-LBCC to 	file a unit modification petition, 	the 	failure 	to
establish 	a 	separate 	unit 	of part-time 	faculty would 	effectively
deny 	the part-time 	faculty 	their 	statutory bargaining 	rights.4
4EERA section 3540 	states, 	in pertinent part:
It 	is 	the purpose of this 	chapter to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within the public
school 	systems 	in the 	State of California by
providing a uniform basis 	for 	recognizing 	the
right of public 	school 	employees 	to 	join
organizations 	of their own choice, 	to be
represented by 	such 	organizations 	in their
professional 	and 	employment 	relationships
with public 	school 	employers, 	to 	select one
employee organization as 	the 	exclusive
representative of 	the 	employees 	in an
appropriate unit, 	and to afford certificated
employees 	a voice 	in the 	formulation of
educational policy. 	. 	. 	.
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He 	further 	found that this 	factor must be 	given great weight 	in
determining whether a 	separate unit 	of part-time 	faculty 	is
appropriate. 	We agree. 	The District asserts 	that this 	factor
should be given little weight and, 	in any event, 	the Board 	could
sua 	sponte decide 	that 	the 	existing 	full-time unit was
inappropriate 	and order the 	inclusion of 	the part-time 	faculty.5
There 	is 	no 	established mechanism 	for 	forcing upon an
existing unit 	an additional 	group 	of 	employees 	the unit does 	not
want. 	Nor do we 	see how it would effectuate the purposes 	of 	the
statute 	to order 	such a 	forced 	expansion of 	the unit, 	assuming we
have 	the 	authority 	to 	order 	such 	action.6 We are mindful 	this
5The 	District points 	out 	the 	possibility that 	another 	union,
more 	friendly to the 	inclusion of part-time 	faculty, 	could
decertify 	CTA-LBCC 	and 	then 	file 	a unit 	modification petition
seeking to add the part-time faculty. 	This 	scenario, 	while
theoretically possible, 	is highly unlikely to occur and 	is,
therefore, 	of 	little or no relevance to the resolution of 	this
dispute.
6We 	are 	not 	necessarily unsympathetic 	to our 	concurring
colleagues' 	criticism of 	the analysis underlying the Board's
decision in Peralta Community College District, 	supra, 	PERB
Decision No. 	77. 	However, 	the wisdom of overruling that decision
at this 	time, 	when it has 	been applied to 	innumerable unit
determinations, 	is a separate question. 	We will address 	that
question 	in 	full when we are 	faced with a more 	appropriate 	case.
For the purposes of this decision, 	it is 	sufficient to point out
that the proscription of 	EERA 	section 	3545, 	subdivision 	(b)(l)
assumes 	that the placement of all 	"classroom teachers" 	in the
same unit is 	an available option. 	Here, 	where the approximately
300 	full-time 	faculty are 	in a unit 	that was 	established 	in 	1978
in accordance with 	existing regulations 	and 	case precedent, 	and
are hostile 	to 	the 	inclusion of 	the 	some 	700 part-time 	faculty,
no 	such option exists.
To 	require CTA-LBCC 	to 	seek modification of 	the 	existing
unit to 	include a 	large group of 	teachers 	it does 	not want 	to
represent, 	and who wish to be 	represented by another employee
organization, 	would 	foment disruption and disharmony and would
interfere with the teachers' 	paramount right to be represented by
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case presents 	the 	anomaly of 	creating a 	separate unit of
employees 	who 	likely would be 	included 	in the 	existing unit were
the 	issue before us 	as part of an initial unit determination.
However, 	we 	cannot 	ignore the bargaining history nor the
relationship between the 	two 	groups 	that 	has 	developed 	since 	the
unit determination in 1978. 	In fact, 	as 	indicated above, 	the
statute 	requires 	that the 	Board consider 	such 	factors.
Therefore, 	we 	find that the ALJ was 	correct 	in giving great
weight 	to the 	fact 	that denial 	of 	the petition 	for a 	separate
unit would 	effectively preclude 	the 	part-time 	faculty 	from
exercising 	their 	statutory 	bargaining 	rights.
ORDER
Based upon the 	foregoing 	Decision and 	the 	entire 	record 	in
this 	case, 	it is hereby ORDERED that:
A unit 	consisting 	of 	certificated hourly 	instructors 	is
appropriate 	for 	negotiating 	in 	the 	Long 	Beach 	Community 	College
District, 	provided that an employee 	organization becomes 	the
exclusive 	representative 	of 	the unit.
an exclusive representative 	of 	their own 	choice. 	(See 	Peralta
Community College District 	(1987) 	PERB Decision No. 	Ad-164, 	at
pp. 	8-9.) 	More 	importantly, 	we can find no authority, 	express 	or
implied, 	for the 	Board to 	force an employee 	organization to
represent employees 	against 	its will.
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This 	matter is 	REMANDED to the Los Angeles 	Regional
Director, 	who 	shall 	take appropriate 	action consistent with 	this
Decision.
Member Camilli 	joined 	in this 	Decision.
Chairperson Hesse's 	and Member Porter's 	concurrence 	begins 	on
page 	9.
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Hesse, 	Chairperson, 	concurring: 	Although I agree with the
majority's result that, 	in this case, 	the unit consisting of
certificated 	hourly 	instructors 	in 	the 	Long 	Beach 	Community
College District 	(District) 	is appropriate, 	I disagree with the
statutory interpretation of 	section 3545(a) 	and 	(b) 	of the
Educational 	Employment Relations Act 	(EERA) 	in Peralta Community
College District 	(Peralta) 	(1978) 	PERB Decision No. 	77. 	I do not
concur with 	the 	majority 	opinion relating 	to 	the 	unit
determination of 	residual units.
. .'
The 	relative 	statutory 	criteria 	for 	appropriate 	unit
determination is 	included 	in 	section 	3545 	as 	follows:
(a) 	In each case where the appropriateness
of the unit is 	an issue, 	the board shall
decide 	the 	question on the basis 	of 	the
community 	of 	interest 	between and 	among the
employees 	and 	their 	established 	practices
including, 	among other things, 	the extent to
which 	such employees 	belong to 	the 	same
employee organization, 	and the effect of 	the
size of 	the unit on the 	efficient operation
of the 	school district.
(b) 	In all cases:
(1) 	A negotiating unit 	that 	includes
classroom 	teachers 	shall 	not 	be 	appropriate
unless 	it at least 	includes all of the
classroom 	teachers 	employed by 	the public
school employer, 	except management employees,
supervisory employees, 	and confidential
employees.
In 	Peralta, 	the 	Board 	found 	a 	conflict between the 	mandatory
"[i]n each case" 	language of 	section 	3545(a) 	and the mandatory
"[i]n all cases" 	language of 	section 3545(b). 	In order to
harmonize 	this 	conflicting 	language, 	the 	Board 	established 	a
rebuttable 	presumption:
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Reading 	subsection 	3545(b) 	together with 	its
companion subsection 	(a) 	gives 	rise to the
presumption that 	all 	teachers 	are to be
placed 	in a 	single unit 	save where 	the
criteria of the 	latter 	section cannot be met.
In this way, 	the legislative preference, 	as
the Board perceives 	it, 	for the largest
possible viable unit 	of 	teachers 	can be
satisfied. 	Thus, 	we would place the burden
of proving the 	inappropriateness 	of 	a
comprehensive teachers' 	unit on those
opposing 	it.
(Peralta, p. 	10.)
The 	Board's 	statutory 	interpretation 	in Peralta 	ignores 	the
express 	language of the 	statute. 	Specifically, 	section 3545(b)
applies 	to 	"all cases" while 	section 3545(a) 	applies 	to 	"each
case where the appropriateness 	of the unit is 	an issue." 	If 	the
appropriateness 	of 	a proposed 	negotiating unit 	is 	mandated 	by
section 3545(b), 	then there is no issue of appropriateness to be
determined under section 3545(a). 	However, 	if the
appropriateness 	of 	a proposed 	negotiating unit 	is 	not 	governed by
the proscription and/or mandates 	of 	section 3545(b), 	then the
proposed 	unit's 	appropriateness 	is 	determined under 	section
3545(a). 	I 	reject the rebuttable presumption standard created in
Peralta 	and would apply the plain meaning of 	the 	statute 	to
cases, prospectively.
A threshold 	issue 	is 	whether 	community 	college 	teachers 	are
classroom teachers within the meaning of 	EERA 	section 	3545(b)(l).
Previously, 	the 	Board 	construed 	classroom teachers 	to
include 	full-time 	classroom teachers. 	(Belmont 	Elementary 	School
District 	(1976) 	EERB Decision No. 	7.) 	In response to the
10

District's 	argument 	that 	the 	Legislature 	did not 	intend 	section
3545(b)(l) 	to apply to community college teachers, 	the Board
indicated 	the 	terminology 	applied 	to 	community 	college 	faculty
was 	confusing and overlapping. 	(Los 	Rios 	Community College
District 	(1977) 	EERB Decision No. 	18.) 	Later, 	the Peralta Board
rejected 	the 	Belmont 	definition 	and held 	that 	classroom 	teachers
simply referred to 	all 	employees who 	teach 	in a 	classroom 	for any
period of 	time.
However, 	the 	legislative 	references 	to 	classroom teachers
are 	not 	overlapping with 	classroom 	instructors 	or 	faculty
members.1 For 	example, 	where the Education Code refers 	to
permanent 	classifications 	and 	positions 	requiring 	certification
qualifications, 	certificated 	employees 	of primary and 	secondary
schools 	are referred to as 	classroom teachers 	(Ed. 	Code 	secs.
1At the time EERA was 	enacted in 	1975, 	the Education Code of
1959, 	as amended, 	was in effect. 	In 	1976, 	the Education Code of
1959 was 	reorganized. 	Unlike the Education Code of 	1959, 	which
referred 	to 	elementary 	and 	secondary 	schools 	and 	junior 	or
community colleges 	in the 	same 	sections using the 	same terms, 	the
Education Code 	of 	1976 differentiates 	between the 	employees 	of
elementary 	and 	secondary 	schools 	and 	community 	colleges 	(as 	well
as 	California 	State 	University and Colleges, 	University of
California, 	and private Postsecondary 	and higher 	education
institutions).
While an 	intention to 	change 	the 	law is 	usually 	inferred
from a change 	in the language of the 	statute, 	I believe that a
consideration of 	the 	inherent differences 	between the 	elementary
and 	secondary 	schools 	and 	community 	colleges 	indicate 	that 	the
reorganization of 	the Education Code was 	the result 	of 	a
legislative 	attempt 	to 	clarify 	the 	true 	meaning 	of 	the 	Education
Code of 	1959. 	(See Balen v. 	Peralta Junior College District
(1974) 	11 Cal.3d 821, 	828; 	Martin v. 	California Mutual Building
and Loan Association 	(1941) 	18 Cal.2d 478, 	484.) 	Therefore,
references to the Education Code of 	1976, 	as amended and
supplemented, 	are applicable to attempt to define the term
"classroom teachers."
11

44897, 	44898, 	44854), and certificated employees of community
colleges 	are 	referred to 	as 	classroom 	instructors 	or 	faculty
members 	(Ed. 	Code secs. 	87458 and 87459). 	Furthermore, 	a
distinction 	is 	made 	in the reference 	to 	the 	accounting of
salaries of classroom teachers 	(Ed. 	Code 	sec. 	41011) 	and
classroom instructors 	(Ed. 	Code sec. 	84031). 	The term 	"classroom
teachers" 	is 	not 	synonymous with classroom instructors 	or 	faculty
members. 	Based on the foregoing, 	I 	conclude that certificated
employees 	employed by 	community 	college districts 	are 	not within
the definition of 	EERA 	section 	3545(b)(l). 	To the 	extent Peralta
holds 	that 	community 	college 	certificated 	employees 	are 	also
classroom teachers, 	I would overrule Peralta and 	its progeny.
The 	issue here 	is whether approximately 	500 	to 	700 	part-time
faculty 	employees 	alone 	constitute 	an appropriate 	unit.2 This
case 	is 	distinguishable 	from Los 	Rios 	Community College District.
supra, 	EERB Decision No. 	18, 	Rio Hondo Community College District
(1979) 	PERB Decision No. 	87, 	and Hartnell Community College
District 	(1979) 	PERB Decision No. 	81, 	in that there is already an
established unit of 	full-time 	faculty members 	in place. 	As 	I 	do
not 	find that EERA 	section 	3545(b)(l) 	is 	applicable to the
employees 	of 	the proposed negotiating unit, 	I would apply the
unit criteria of EERA section 3545(a). 	However, 	I disagree with
2Although 	the 	District 	opposes 	the 	request 	for recognition
claiming that the appropriate unit 	is 	a 	comprehensive unit of 	all
faculty, 	at the time of CTA-LBCC's 	original request 	for
recognition, 	the District vehemently opposed the 	inclusion of part-
time 	faculty in the unit. 	Thus, 	CTA-LBCC changed its position and
agreed to 	exclude part-time 	faculty 	from 	its 	request 	for 	recognition,
.. . .
12

the 	administrative 	law 	judge's 	application of 	section 	3545(a)
using the 	Peralta 	rebuttable presumption 	standard. 	While 	I 	find
that there 	is 	a 	community 	of 	interest between the 	full-time 	and
part-time 	faculty, 	I 	also 	find a 	community of 	interest among the
part-time 	faculty. 	Under the unit criteria of 	section 3545(a),
the 	community of 	interest 	among the part-time 	faculty, 	the 	fact
that 	the part-time 	faculty do 	not belong 	to 	other 	employee
organizations, 	and the 	lack of 	any credible evidence that a
separate part-time 	unit would have 	a 	negative 	effect 	on the
efficiency 	of 	the 	District's 	operations 	(see proposed decision,
p. 	20), 	supports the appropriateness of a part-time faculty unit.
For 	the 	foregoing reasons, 	I 	find that the proposed part-time
faculty unit 	is 	an appropriate unit.
I 	disagree with the 	majority's 	discussion of 	unit
determination 	for 	residual 	groups 	of 	unrepresented 	employees
because this 	Board has an overriding duty to determine, 	in each
instance, 	which unit is appropriate. 	(EERA secs. 	3541.3,
3544.5.) 	Any arrangement 	requiring the 	Board's 	automatic
deference 	to 	established 	exclusion of 	a 	residual 	group 	of
employees 	would 	impermissibly permit 	employees 	and 	employee
organizations 	to 	substitute 	their preferred unit 	configurations
for 	those which 	are 	appropriate under 	the 	statutory 	criteria.
(Centinela Valley Union High 	School 	District 	(1978) 	PERB 	Decision
No. 	62.)
. . .
In making unit determinations, 	the Board must 	consider the
general 	statutory 	intent of promoting 	stable, 	harmonious
13

employer-employee relations 	(EERA sec. 	3540), 	the exclusive right
of 	employees 	to 	select 	one 	employee organization as 	the 	exclusive
representative of an appropriate unit 	(EERA secs. 	3540, 	3543),
and, 	more 	importantly, 	the 	statutory criteria 	for unit
determination 	(EERA sec. 	3545). 	The fact that the exclusive
representative 	has 	not 	intervened 	or has 	declined 	to 	represent 	a
group of residual employees does not, 	by itself, 	warrant a
separate unit. 	The desires 	of 	the 	employees 	and other parties,
while relevant, 	are not paramount. 	Where the proposed
negotiating unit 	of 	residual 	employees 	is 	found to be
inappropriate by the 	Board, 	residual 	employees 	are 	entitled to
vote 	as 	to whether they desire 	to be 	included 	in the 	appropriate
bargaining unit that is already in place. 	(See, 	e.g., 	Camden
Board of Education 	(1986) 	12 NJPER para. 	17326; 	Eaton Rapids
Public Schools 	(Child Care Program) 	(1988) 	MERC Lab.Op. 	511.)
Member Porter 	joined 	in 	this 	Concurrence.
14

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CERTIFICATED 	HOURLY
INSTRUCTORS 	LONG 	BEACH
CITY C O L L E G E , 	CTA/NEA,
Petitioner,
and
LONG 	BEACH 	COMMUNITY
COLLEGE 	D I S T R I C T ,
Employer.
Representation
Case 	N o . 	LA-R-916
PROPOSED 	DECISION
(7/15/87)
A p p e a r a n c e s ; 	Reich, 	Adell 	& C r o s t , 	by Glenn Rothner 	for
Certificated 	Hourly 	Instructors 	Long 	Beach 	City 	College,
CTA/NEA; 	O'Melveny 	& Myers 	by Virginia 	L. 	Hoyt 	for 	Long 	Beach
Community 	College 	District.
Before 	James 	W. 	Tamm, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On 	July 	1 7 , 	1986, 	the 	Certificated 	Hourly 	Instructors 	Long
Beach 	City C o l l e g e , 	CTA/NEA 	(hereafter 	CHI 	or 	Petitioner) 	filed
a 	request 	for 	recognition 	for 	a 	unit 	of 	certificated 	hourly
i n s t r u c t o r s 1 at 	the 	Long 	Beach 	Community 	College 	District
(hereafter 	D i s t r i c t ) . 	The 	District 	has 	opposed 	the 	request,
1 Throughout 	the 	hearing, 	the 	parties 	used 	the 	term
part-time 	faculty 	as 	synonymous 	with 	the 	term 	certificated
hourly 	instructors.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
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)
)
)
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)

arguing 	that 	a unit 	comprised 	solely of 	hourly 	faculty 	is
inappropriate. 	According 	to 	the District, 	the only appropriate
unit 	consists 	of 	a 	comprehensive unit 	including 	all 	full-time
and 	hourly 	faculty 	in the 	District. 	The 	full-time 	faculty 	are
currently 	represented 	by 	the 	California 	Teachers 	Association,
Long 	Beach 	City College 	(hereafter 	CTA-LBCC).)
A unit 	determination hearing was 	held 	before 	a 	hearing
officer 	of 	the 	Public Employment 	Relations 	Board 	(hereafter
PERB or Board) 	on January 27 	and 28, 	1987. 	Although CTA-LBCC
was 	aware of 	the hearing, 	it chose not 	to participate. 	A
transcript was 	prepared, 	briefs were 	filed, 	and 	the case was
transferred 	to 	the undersigned 	for 	a 	decision on
May 13, 	1987.2
FINDINGS OF 	FACT
Representation 	History
The District 	is 	comprised 	of 	two 	campuses 	and numerous
off-campus 	teaching 	sites. 	The District 	employs 	approximately
300 	full-time 	instructors 	and 	700 	part-time 	hourly 	faculty.
2 The
hearing was 	held with Ronald 	Hoh presiding. 	Mr.
Hoh has 	since 	resigned 	from PERB 	and 	the 	case was 	reassigned
for a decision.
N	2

In 	1977, 	CTA-LBCC3 sought 	recognition of 	a comprehensive
bargaining 	unit, 	including 	both 	full-time 	and 	part-time
faculty. 	The 	District's 	administration 	strenuously 	opposed 	the
inclusion of part-time 	faculty 	in the unit 	at 	that 	time.
At 	the 	time 	the 	original 	request 	for 	recognition was
filed, 	the personnel director was 	furious 	about 	inclusion of
part-timers 	in the 	request. 	He 	responded 	to 	the 	issue 	saying
"I will 	hang up your 	request 	for 	the next century" 	if
part-timers 	continued 	to 	be 	included 	in 	the 	request. 	He 	also
responded 	that 	the 	administration would 	fight 	the 	request with
all 	the 	resources 	available 	to 	it 	because 	they would never
permit 	a comprehensive unit.
At 	that 	same 	time 	the 	Faculty Association of 	the
California Community Colleges 	(FACCC), 	a 	rival organization,
intervened 	and 	sought 	a 	unit 	limited 	to 	full-time 	faculty.
Faced with vehement 	opposition 	from 	the 	District 	and 	pressure
from full-time 	faculty members, 	CTA-LBCC changed 	its 	position
and 	agreed 	to 	exclude part-time 	faculty 	from its 	request 	in
order 	to 	get 	to 	a 	representation election. 	A consent 	election
was held 	and on May 23, 	1978, 	CTA-LBCC was 	certified as 	the
exclusive 	representative 	of 	a 	unit 	excluding 	part-time
3Originally, 	the organization was 	known as Associated
Teachers 	Long 	Beach City College, 	CTA/NEA.
3

faculty.4
Eric David, 	the chief negotiator 	for CTA-LBCC, 	testified
that 	at 	the 	time of 	the 	initial 	organizing drive 	an 	internal
CTA-LBCC election was 	held 	resulting 	in the 	exclusion of
part-time 	faculty.55
Lowell 	Johnson, 	president 	of 	CTA-LBCC during 	the original
organizing 	drive 	and holder 	of 	several 	other 	offices within
CTA-LBCC since 	then, 	testified that 	at 	the time of 	the
organizing 	drive 	it 	became 	clear 	that 	the 	full-time 	faculty did
not want part-timers 	in the unit. 	That was, 	according to
Johnson, 	one of 	the 	reasons 	CTA-LBCC decided to 	amend 	its
request 	for 	recognition to 	exclude part-time employees.
In approximately 1982 	to 	1984, 	Johnson also made efforts
to 	include 	part-time 	faculty 	in 	the 	established 	unit 	but 	his
efforts were once 	again rebuffed. 	According to 	Johnson,
neither 	CTA-LBCC's 	executive 	board 	nor 	the 	representative
council 	favored 	including 	part-timers 	in the unit. 	On that
issue, 	Johnson was 	a minority of one.
4Consent 	elections 	are 	entered 	into 	by voluntary
agreement 	regarding 	the unit 	configuration. 	The unit 	question
was 	therefore 	never 	litigated 	before 	the 	Public 	Employment
Relations 	Board.
5It 	is unclear 	from the 	record whether 	this 	was 	a 	vote
of 	the membership or 	the governing 	board.
A4

The 	current 	CTA-LBCC 	president 	supported 	the 	testimony
that most 	full-time 	faculty opposed 	inclusion of 	part-timers 	in
the unit. 	This 	opposition 	is 	based upon a belief 	that 	such 	a
move might 	increase 	competition 	for 	the 	District's 	shrinking
resources 	and 	anxiety that, 	because of 	their numerical
superiority, 	part-time 	faculty would be 	able to 	dominate 	the
organization.
Since the 	time of 	its certification as 	exclusive
representative of 	the full-time unit, 	CTA-LBCC has 	never 	filed
any unit 	modification petition nor 	taken 	any position 	seeking
6to 	include part-time faculty in the unit 	it 	represents. 	At
one time, 	the CTA-LBCC executive board 	allowed 	a 	part-time
faculty member to 	sit 	in on its meetings 	as 	a 	liaison, 	however,
that 	is 	no 	longer 	the case.
While 	the 	evidence 	relating 	to 	organization membership was
vague and confusing, 	it 	appears 	that only a small 	handful of
part-timers 	have ever belonged to 	CTA-LBCC.
There was 	one 	instance where 	CTA-LBCC 	filed 	an unfair
practice 	charge 	on behalf 	of 	faculty members who were 	thought
to 	be 	full-time employees. 	When 	the District 	pointed out 	that
the 	individuals 	in question were part-time 	faculty, 	and
therefore not part 	of 	the bargaining unit, 	CTA-LBCC withdrew
its 	charge 	and did not 	represent 	the employees 	before 	PERB.
6CTA-LBCC 	also did not 	intervene on CHI's 	request 	for
recognition. 5

There was 	also 	some 	testimony 	about 	an 	attempt 	several
years 	ago 	by the Academic 	Senate 	to 	meet 	informally with 	the
employer 	on behalf 	of part-time 	faculty. 	It 	is 	unclear 	from
the 	record 	if 	anything 	resulted 	from that 	attempt.
The 	full-time 	faculty 	and 	the District 	are 	in 	the middle
of 	a multi-year 	collective 	bargaining 	agreement which expires
June 30, 1988.
Current 	Working 	Conditions
Regarding 	actual 	teaching duties, 	part-timers 	are
identical 	to 	full-time 	faculty. 	Both 	are expected 	to prepare
and present courses, 	develop 	and conduct tests, 	assess 	student
competence 	and 	issue grades, 	and provide 	a good environment 	for
educating 	students.
Part-time 	faculty possess 	the 	same 	teaching 	credentials 	as
do 	their 	full-time counterparts. 	Although part-timers 	are
often 	assigned 	less 	desirable 	subjects 	to 	teach,
•7
they do
often teach the same classes, 	utilize the same textbooks, 	grade
students 	in the 	same manner, 	and 	follow the 	same 	reporting
procedures, 	such as for attendance, 	as full-timers. 	Both
part-time 	and 	full-time 	faculty 	are 	supervised 	by 	the
department 	chairpersons. 	They also 	share 	the 	same District
facilities 	such as classrooms, 	cafeterias, 	and the 	library.
1Full-time 	faculty 	are 	generally 	given 	priority 	over
part-timers 	in 	selecting 	course 	assignments.
6

The work week 	for 	full-time 	faculty 	is 	considered 	40
hours. 	Approximately 15 	hours 	comprises 	their classroom
teaching 	assignment. 	Five hours 	is 	for college service such as
involvement with various 	college committees 	and 	five 	hours 	is
reserved 	for 	office hours. 	The 	remainder 	is 	for 	preparation
time 	for 	their 	teaching 	assignments.
Approximately two-thirds 	or 	200 	of 	the 	full-time
instructors 	also 	teach on an hourly basis 	as 	an overload-
Full-time 	faculty 	are 	limited 	to 	teaching 	no more 	than 	six
hours 	of 	overload 	above 	and 	beyond 	their 	regular 	full-time
course 	load. 	Full-time 	faculty 	are 	generally given the option
of 	first 	priority over 	part-time 	teachers 	in 	assigning 	extra
hours. 	When 	full-time 	faculty are 	assigned 	classes 	on 	an
hourly basis, 	they receive the 	same 	rate of pay as 	part-time
faculty 	and 	sign 	the 	same 	contract 	as 	part-time 	faculty.
Because 	full-time 	faculty are usually given 	some 	say 	in
their 	assignment 	to various 	classes, 	full-time 	faculty
generally teach during 	the day. 	Part-time 	faculty generally
teach night classes, 	however, 	this 	is by no means consistent.
There 	exist 	numerous 	examples 	of 	part-time 	faculty teaching
during 	the day 	and 	full-time 	faculty 	teaching 	at 	night.
Full-time 	faculty 	are 	also 	usually given preference 	regarding
work location, 	however, 	there was 	ample evidence of both
full-time 	and 	part-time 	faculty teaching 	at 	the campus 	sites,
as well 	as 	at the 	less desirable offsite 	locations.
7

The salaries 	of 	full-time 	faculty, 	for time 	spent 	in their
full-time 	assignment, 	is 	negotiated between the District 	and
the 	exclusive 	representative. 	The 	lower 	hourly 	rate 	for
part-time 	faculty 	is 	set 	unilaterally by the District.
Part-timers 	and 	full-time teachers 	on 	an overload basis 	are
paid only for 	their 	actual 	teaching 	time. 	Part-timers 	are
therefore not 	paid 	for 	any office 	hours 	or 	committee work.
There was evidence, 	however, 	that part-timers 	sometimes counsel
students before 	and 	after class 	or during breaks, 	even though
they receive no 	extra pay. 	The 	same holds 	true 	for
participation 	in committee work. 	While part-timers 	are 	not
assigned 	to 	committees 	and 	are 	not 	paid 	for 	such 	involvement,
they do 	on occasion take part 	in committee 	activities 	such as
curriculum 	development.
There 	are 	substantial 	differences 	between 	the 	benefits
received by part-time 	and 	full-time 	faculty. 	Part-time 	faculty
do not 	receive medical, 	dental, 	vision, 	or life insurance
benefits 	as do 	full-time 	faculty. 	Full-timers 	are eligible 	for
numerous 	types 	of 	paid 	leaves which 	are not 	available 	or 	only
partially available 	to part-timers. 	Part-timers 	also do not
receive 	reimbursement 	for 	costs 	in connection with professional
development which 	is 	available 	to 	full-time 	faculty.
Part-time 	faculty enjoy no 	job 	security within 	the
District. 	Their classes may be dropped without 	notice 	if
enrollment 	is 	insufficient. 	Part-timers may also 	be bumped 	out
of 	an 	assignment 	if 	any full-timer 	needs 	additional 	classes 	to
8

meet 	their 	full-time 	teaching 	load. 	Full-timers 	have 	job
security 	from year 	to 	year 	based upon 	seniority 	and may be
dismissed 	only for 	cause 	or 	layoffs 	pursuant 	to 	the Education
Code 	and 	contract 	provisions.
Both 	full-time 	and 	part-time 	faculty 	receive 	performance
evaluations, 	although the procedures 	differ greatly for 	each
group. 	Full-timers 	are evaluated pursuant 	to Education Code
provisions 	calling 	for 	peer 	review every 	two years.
Part-timers 	are evaluated by the department 	chairs 	on 	a 	less
formal 	basis. 	The District's 	policy calls 	for 	an evaluation
during 	the 	first year 	of 	employment of 	a 	part-time 	teacher 	and
every three years 	thereafter.
Unlike 	the 	full-time 	faculty, 	part-timers most 	often hold
other 	full-time or 	part-time 	jobs 	outside 	the District. 	There
was 	testimony that most 	part-timers 	had 	no 	desire 	for 	full-time
employment within 	the District. 	That 	testimony was 	speculative
at best 	and 	is not given any weight. 	In fact, 	during the past
five years, 	approximately 55% of the 46 new full-time faculty
hires 	have 	come 	from the 	part-time 	faculty 	ranks.
There 	is 	evidence of 	conflicting 	practices 	regarding
attendance 	at department meetings. 	It 	appears 	that 	in some
departments, 	part-timers 	are 	invited 	and 	are 	expected 	to 	attend
department meetings; 	in others, 	meetings 	are held without any
expectation of 	part-timer's 	involvement.
9

Full-timers 	are 	assigned 	offices 	and 	telephones.
Part-timers 	are not 	assigned offices 	or 	telephones, 	although
there was 	testimony that 	if 	it were necessary, 	a part-timer
could arrange access to 	an office or 	a telephone.
Full-time 	faculty 	are 	eligible 	for membership 	in 	the
Academic Senate. 	Part-time 	faculty are not 	eligible 	for
regular 	Senate membership but 	are 	instead 	limited 	to
representation 	by 	two 	nonvoting 	part-timers 	appointed 	by 	the
Academic 	Senate. 	Other 	part-time 	faculty 	are 	allowed 	to 	attend
Senate meetings 	and may be heard on various 	issues 	but 	have no
official 	status 	as part-time representatives. 	Three or 	four
years 	ago 	there was 	an 	attempt 	to 	allow part-time 	faculty to
become 	eligible 	for 	full 	Senate membership. 	That 	attempt was
not 	successful.
Department 	chairpersons 	are 	selected pursuant 	to 	a
negotiated 	provision 	in 	the 	collective 	bargaining 	agreement
between 	full-timers 	and 	the District. 	The provision calls 	for
an election process 	among 	full-time faculty. 	Thus, 	part-timers
play no 	role 	in the selection of department chairs. 	Part-time
faculty also 	have no 	access 	to 	the contractual 	grievance
procedure.
ISSUE	
ISSUE
Is 	a 	separate unit 	comprised of 	certificated hourly
employees 	of 	the Long 	Beach Community College District
appropriate?
10

DISCUSSION
The 	relevant 	statutory criteria 	for 	appropriate 	unit
determination 	is 	included 	in 	section 3545 	of 	the Educational
Employment Relations Act 	(EERA) 	(Government Code 	section 3540,
et 	seq.), 	as 	follows:
(a) 	In each case where the appropriateness
of the unit 	is 	an issue, 	the board shall
decide 	the question on the basis 	of 	the
community of 	interest 	between 	and 	among 	the
employees 	and 	their 	established 	practices
including, 	among other things, 	the extent to
which such employees 	belong 	to 	the 	same
employee organization, 	and 	the effect of 	the
size of 	the unit 	on the efficient 	operation
of 	the school district.
(b) 	In all cases:
(1) 	A negotiating 	unit 	that 	includes
classroom teachers 	shall 	not 	be
appropriate unless 	it 	at 	least 	includes
all 	of 	the classroom teachers 	employed
by the public 	school 	employer, 	. . . .
Interpreting 	the 	above 	statutory 	language 	in 	Peralta
Community College District 	(1978) 	PERB Decision No. 	77, 	the
Board 	found 	a 	conflict 	between 	the mandatory 	"In each case"
language of 	section 3545(a) 	and the mandatory "In all cases" 	of
section 3545(b). 	In harmonizing the conflicting 	language, 	the
Board 	found 	that 	the Legislature meant 	to minimize 	the
dispersion of 	school district 	faculty 	into 	unnecessary
negotiating units, 	while 	at 	the 	same time 	recognizing 	the
possibility 	that 	critical 	negotiations 	related 	differences
between groups 	of 	teachers might 	compel unit 	separation.
11

In 	order 	to 	satisfy the 	legislative 	preference 	for 	the
largest possible viable unit of teachers, 	the Board established
a 	rebuttable 	presumption that 	all 	teachers were 	to 	be placed,
prospectively, 	in a 	single unit. 	The burden of 	rebutting the
presumption 	and proving 	the 	inappropriateness 	of 	a
comprehensive unit would be upon 	the 	party opposing 	it.
Peralta Community College District 	(1978) 	Board Decision No. 	77
(pp. 	9-10).
While 	the 	Board went 	on 	to 	decide 	Peralta 	almost
exclusively upon 	a 	lack of 	community of 	interest 	between 	the
groups 	of 	teachers 	involved, 	the Board 	specifically cautioned
that 	other 	criteria 	contained 	in 	section 3545(a) 	should 	not 	be
disregarded. 	This may include 	factors 	such as 	the extent 	to
which employees belong 	to 	the 	same employee organization, 	the
effect upon the efficient 	operations 	of 	the school 	district,
the 	negotiating 	history 	and 	impact 	upon 	established 	negotiating
relationships, 	and the harm caused by potential 	loss 	of
collective bargaining 	rights 	if 	the petition 	is 	denied.
In Peralta. 	the Board gave 	little weight to 	established
past 	practices 	or 	negotiating 	history prior 	to 	the enactment 	of
the EERA. 	Since 	the EERA had been 	in effect 	for 	less 	than two
full years when the Peralta 	hearing was 	held, 	history 	after 	the
enactment 	of 	the EERA was 	also 	of 	limited value. 	In the case
at hand, 	the 	record establishes over ten years 	of 	labor
relations 	history within the District. 	This 	evidence must
12

therefore 	be 	taken 	into 	consideration 	and 	balanced 	along 	with
traditional 	community of 	interest 	criteria 	in determining 	the
appropriate unit.
Community of 	Interest
By all 	traditional community of 	interest 	standards, 	the
part-time hourly employees 	should be 	included within 	a unit 	of
full-time 	employees. 	Part-time 	and 	full-time 	faculty 	are
equally responsible for course preparation, 	presentation, 	and
evaluation of 	students' 	progress. 	Even though the hiring
procedures 	are 	less 	formal 	for part-timers, 	both are 	required
to 	possess 	the 	same 	teaching credential. 	Over 	the past 	five
years, 	the majority of new full-time hires have come 	from the
part-time 	ranks.
Although 	full-time 	faculty 	are 	given 	a 	scheduling 	priority
over part-time 	faculty, 	both teach the 	same type of courses;
both teach night 	as well 	as 	day courses, 	and both teach on
campus 	as well 	as 	at off-campus 	locations.
Two-thirds 	of 	the 	full-time 	faculty have 	taught on 	an
hourly overload basis. 	When they do 	so, 	they are paid 	at 	the
same 	rate 	and work under 	the 	same 	employment 	contracts 	as
part-time employees.
Both 	full-time 	and 	part-time 	faculty 	are 	supervised 	by
department 	chairpersons 	and 	both 	receive 	evaluations. 	Although
the evaluation process 	is different, 	that difference does 	not
seem to 	impact 	the 	employment 	relationship 	of 	each group.
13

While 	part-timers 	are not 	assigned offices 	or 	telephones,
access 	to 	them is 	available 	if 	needed. 	There were 	also
examples 	of 	part-timers 	participating 	in committee work,
attending 	academic 	senate meetings, 	and counseling 	students
even 	though 	they 	received 	no 	such 	specific 	assignment 	or
compensation 	for 	such 	activities.
Most of 	the major differences between the groups, 	such as
salary, 	fringe benefits, 	seniority and layoff protection, 	and
access 	to grievance procedures, 	occur 	in areas which are
legitimately the 	subject 	of 	negotiations 	and 	are 	therefore not
controlling 	as 	to unit placement. 	The Board has 	held that
terms 	and conditions 	of 	employment 	for 	a 	nonorganized work
force which 	are wholly within 	the 	control 	of 	the District 	are
not enough to 	establish 	a 	lack of community of 	interest. 	Los
Rios Community College District 	(1977) 	EERB No. 	18;
g
Redwood
City Elementary School District 	(1979) 	PERB Decision No. 	107.
Where the Board has 	been faced with similar, 	if 	not
identical, 	full-time versus part-time disputes, 	and has had the
unit placement of 	both groups 	to decide, 	the Board has 	found 	a
strong 	community of 	interest 	and 	placed 	both groups 	in one
comprehensive unit. 	Los 	Rios 	Community College District,
8Prior to January 1978, 	PERB was 	known as 	the
Educational Employment Relations Board 	(EERB).
14

supra; 	Hartnell Community College District 	(1979) 	PERB Decision
No. 	81; 	Rio Hondo Community College District 	(1979) 	PERB
Decision No. 	87. 	Thus, 	as 	a single factor which must be
balanced with other 	criteria, 	community of 	interest 	is 	balanced
strongly 	in 	favor 	of 	the District's 	position that 	one
comprehensive 	faculty unit 	is 	appropriate 	and 	a 	part-time unit
inappropriate.
The District 	relies 	upon Modesto City Schools 	(1986) 	PERB
Decision No. 	567 	for the proposition that the Petitioner, 	in
order 	to 	rebut the Peralta presumption, 	must prove 	a 	lack of
community of 	interest 	between 	full-time 	and 	part-time 	faculty.
Such reliance is misplaced, 	however, 	for Modesto 	is
distinguishable 	from the case 	at 	hand. 	The Modesto Teachers
Association 	(MTA) 	was 	the exclusive 	representative of 	a
certificated unit 	excluding 	substitute 	teachers. 	MTA had 	filed
two 	conflicting 	representational 	petitions 	for 	substitutes:
One 	to 	modify 	the 	existing 	unit 	by 	including 	substitutes 	and
one to create a separate unit of 	substitutes. 	Prior to 	a unit
determination hearing, 	MTA decided 	to withdraw the unit
modification petition and pursue 	a 	separate unit 	of
substitutes. 	Thus, 	the same employee organization was 	seeking
to 	represent 	teachers 	in two 	separate units. 	The MTA was 	on
notice 	that 	the 	Peralta 	presumption 	applied 	and 	it 	could 	have,
instead, 	pursued the unit modification. 	The Peralta
presumption would 	then have 	led 	to 	the 	inclusion 	of 	substitutes
in the 	existing unit.
15

The 	option of 	filing 	a unit modification petition 	to
include part-timers 	into 	the 	existing 	full-time unit 	is 	not,
however, 	available to CHI. 	As will be discussed more fully in
the 	following 	section, 	because the CHI 	is 	not 	the exclusive
representative 	for 	the existing unit, 	PERB 	regulations 	do 	not
give 	it 	standing 	to 	seek 	inclusion of 	part-time 	teachers 	in the
full-time unit. 	If CHI were the exclusive 	representative of
full-timers, 	then, 	pursuant to Modesto, 	CHI would have to prove
a 	lack of 	community of 	interest 	between the two 	groups 	in order
to establish a 	separate unit.
Disenfranchisement 	of 	Bargaining 	Rights
The EERA explicitly guarantees 	in 	section 3540:
. 	. 	. 	the right of public school employees
to 	join organizations 	of 	their 	own choice,
to 	be 	represented by 	such organizations 	in
their 	professional 	and 	employment
relationships with public 	school 	employers,
to 	select 	one employee organization 	as 	the
exclusive 	representative 	of 	the 	employees
in an 	appropriate unit, 	. . .
To 	exercise these 	rights, 	the part-time faculty must
either 	be granted 	a 	separate unit 	or CTA-LBCC must 	seek a
modification of 	its 	existing unit. 	Absent one of 	these two
actions 	the 	part-time 	faculty will 	remain excluded 	from a
bargaining 	unit 	and 	be denied 	bargaining 	rights.
Neither 	the 	employer 	nor 	CHI 	has 	standing 	to 	modify the
existing 	unit 	by 	adding 	part-time 	faculty. 	PERB 	regulations
provide 	that 	only the exclusive 	representative of 	a unit may
file 	a 	unit modification petition 	seeking 	to 	add employees 	to
16

the unit.
g
The 	Board has 	held 	that 	changing 	unit 	composition
only upon 	a 	petition by the exclusive 	representatives 	is
consistent with the 	statutory scheme 	and 	serves 	the purp 	e 	of
protecting 	the 	stability of 	the 	bargaining 	relationship.
os	10	10
No 	unit 	modification petition has 	been 	filed 	by CTA-LBCC,
nor did 	it 	intervene 	in CHI's 	request 	for 	recognition. 	Both
CTA-LBCC's 	executive 	board 	and 	representative 	council 	have
rejected proposals 	to 	include part-timers 	in the unit. 	Given
CTA-LBCC's 	history of unwillingness 	to 	include part-timers 	in
the established unit, 	it 	is unlikely CTA-LBCC will 	seek to
represent part-timers in the future. 	Therefore, 	absent 	a
separate unit 	of 	part-time faculty, 	those employees will be
denied 	collective bargaining 	rights. 	That 	result 	is 	abhorrent
to 	the very purposes 	of 	the 	EERA 	and must 	be weighed 	heavily 	in
deciding whether 	the 	Peralta 	presumption has 	been 	rebutted.
Pleasanton Joint School District 	(1981) 	PERB Decision No. 	169.
9California Administrative Code, 	title 8, 	section 32781
provides 	in pertinent part:
(a) 	A 	recognized 	or 	certified 	employee
organization may 	file with 	the 	regional 	office
a 	petition 	for unit modification:
(1) 	To 	add to 	the unit unrepresented
classifications 	or 	positions 	which
existed prior 	to 	the 	recognition or
certification of 	the 	current 	exclusive
representative of 	the unit.
10Riverside Unified 	School 	District 	(1985) 	PERB Decision
No. 	512; 	Riverside Unified School District 	(1985) 	PERB Order
No. 	Ad-148a; 	Mt. 	San Antonio Community College District 	(1983)
PERB Decision No. 	334.
17

Impact 	of 	Established 	Practices
Several 	factors 	should 	be 	examined 	to 	determine 	the 	impact
of 	established practices. 	With 	approximately 	700 	employees
comprising the petitioned-for unit, 	it 	is 	large enough to be a
viable unit. 	However, 	because of 	the substantial number of
part-timers, 	limiting their 	representation to 	a 	single
comprehensive 	faculty unit 	could 	have 	a 	negative 	impact 	upon
the established unit. 	In forcing 	700 	part-timers upon a
300-member 	full-time unit which does 	not want 	them, 	the 	stable
10-year 	old 	bargaining 	relationship 	between 	CTA-L3CC 	and 	the
District would 	be 	disrupted. 	Mendocino 	Community College
District 	(1980) 	PERB Decision No. 	144.11
The 	Petitioner 	argues 	a 	comprehensive unit would 	also 	be
unworkable because 	of 	the 	divergent 	negotiations 	priorities
between 	full-timers 	and 	part-timers. 	Very 	little weight 	should
be given to 	this 	argument. 	There 	always 	exists 	naturally
competing 	interests 	between various 	employees 	in 	any given
unit. 	As 	long 	as 	there is 	a 	strong community of 	interest, 	as
has 	been demonstrated here, 	any divergent priorities 	should 	be
manageable.
11In 	Mendocino, 	the Board 	found 	that 	it would 	be 	too
disruptive 	to 	the 	existing 	bargaining 	relationship 	to merge 	130
part-timers 	into 	a 	31-member 	full-time 	faculty unit.
18

The District 	argues 	a 	separate unit 	of 	part-timers would
damage 	the 	efficiency of 	the District's 	operations 	by 	requiring
additional 	bargaining with yet 	another 	union 	and more 	time 	at
the bargaining table. 	However, 	regardless of where part-timers
are placed, 	if 	they exercise bargaining 	rights 	the District
would have to negotiate part-time 	issues. 	Therefore, 	the
issues 	of 	concern to part-timers will 	no doubt 	prolong
bargaining whether 	they 	are 	included with 	full-timers 	or 	are
placed 	in a 	separate unit.
As 	the 	Board 	noted 	in Antelope Valley Community College
District 	(1981) 	PERB Decision No. 	168, 	and Pleasanton Joint
School District, 	supra, 	the potential 	loss 	of 	time which must
necessarily be 	spent 	in negotiations was 	a 	burden considered 	by
the Legislature but 	found not 	to 	outweigh the benefits 	of 	an
overall 	scheme 	of 	collective bargaining.
Another District 	argument 	is 	that 	a 	separate part-time
unit would create 	a 	great 	potential 	for 	"whipsawing". 	Because
full-time 	faculty 	also 	perform work 	as 	hourly employees 	on 	an
overload basis, 	the District would have to manage two 	groups 	of
employees 	doing 	the 	same work under 	different 	sets 	of 	personnel
policies. 	This would, 	according to the District, 	"place an
unacceptable 	burden upon 	school 	district 	management."
Moreover, 	the District 	argues 	that 	in attempting 	to 	avoid a
"whipsaw" 	by seeking 	a 	single 	set of policies 	for both groups,
the District 	could be 	subject 	to 	the 	filing of unfair practice
charges.
19

112	2While this may be 	a persuasive 	argument 	in some cases,
it 	is 	flawed under 	the circumstances 	present 	in this 	case. 	The
District 	has 	for 	the past 	10 years managed 	two 	groups 	of
employees 	under 	two 	sets 	of 	personnel 	policies without 	any
great 	burden upon 	school 	district management. 	The only
difference 	if 	a 	part-time unit 	is 	granted would be 	that 	the
District would 	have 	to 	bargain over 	part-time 	issues 	rather
than unilaterally 	implementing 	new part-time policies. 	The
requirement 	that 	the District must 	first 	bargain over 	changes
to matters within the scope of 	negotiations 	has 	never 	been
found to 	be 	an 	"unacceptable burden" 	to District management.
The District's 	arguments 	are 	also 	seriously undercut 	by
its 	earlier vehement opposition to 	a comprehensive unit. 	At
that time, 	the District 	saw no potential 	"unacceptable burden"
upon the District, 	or problems with being 	"whipsawed," 	which
would 	require 	a wall-to-wall unit. 	Quite the contrary was
true. 	There 	is 	nothing 	in the 	record demonstrating major
changes 	in circumstances 	since the 	initial organizing drive.
Yet 	the District 	now argues 	that 	the 	only way to 	avoid 	this
burden 	and 	the potential 	of 	being 	"whipsawed" 	is 	to establish
the very unit 	it 	so 	adamantly opposed 	in the past. 	On this
issue, 	the District's credibility suffers 	from unexplained
inconsistency.
12See 	San Diego Unified 	School 	District 	(1981) 	PERB
Decision No. 	170 where the Board denied 	a petition for 	a
separate unit 	of hourly bus 	drivers 	in part because of 	the
potential 	"whipsawing" 	effect 	upon 	the 	employer.
20

Therefore, 	while the District's 	efficiency of 	operation
would 	not 	be 	improved by creation of 	a 	part-time 	faculty unit,
the 	record 	indicates 	that 	any 	resulting 	harm to 	it would be
slight.
The District 	argues 	that 	no disruption would occur 	if 	the
petition was 	denied 	and part-timers were put 	into 	the 	full-time
unit. 	It points 	out 	that 	at one 	time CTA-LBCC had 	actually
considered 	representing 	a 	comprehensive unit; 	that part-timers
are currently members 	of 	CTA-LBCC 	and had been 	in the past; 	and
that 	there 	is 	no 	history of unwillingness 	of 	CTA-LBCC 	to
cooperate with part-time 	faculty. 	According 	to 	the District,
that 	is 	further 	evidenced 	by the 	academic 	senate's 	informal
attempts 	to 	represent part-time 	faculty.
This 	argument 	is not persuasive. 	Because there 	is no
authority for placing part-timers 	into 	the 	established unit, 	it
is 	not 	relevant whether CTA-LBCC has 	been cooperative with
part-timers. 	Even if 	it were relevant, 	the District's
assessment 	of 	CTA-LBCC's 	relationship 	is 	incorrect. 	CTA-LBCC
has 	almost 	no 	part-time members13 and 	has 	decided 	against
pursuing 	part-time 	representation 	every 	time 	the 	issue 	has
arisen.14	14
13	13since	s ince 	there 	is 	little evidence of membership by
full-time 	and part-time 	faculty in 	a common organization, 	this
factor 	also balances 	in favor of 	a 	separate part-time unit.
14The 	only evidence 	of 	part-timers 	receiving
representation 	from CTA-LBCC was 	when 	the 	organization 	filed 	an
unfair 	practice 	charge on behalf 	of 	employees 	it mistakenly
believed were 	in the 	full-time unit. 	When the District 	argued
that 	the 	individuals 	in question were 	part-time 	employees,
CTA-LBCC dropped 	the unfair 	practice 	charge.
21

The 	informal 	attempt 	to 	represent 	part-timers 	by the
academic 	senate 	is 	also meaningless. 	The 	academic 	senate 	is
not 	the 	bargaining 	agent 	for 	the 	full-time employees 	and 	is 	not
synonymous with CTA-LBCC. 	Even if 	it were, 	its 	attitude toward
part-time 	faculty is 	not much different 	than CTA-LBCCs. 	It
has 	denied membership 	to 	part-time 	faculty 	and 	has 	limited
representation of 	all 	700 	part-timers 	to 	two nonvoting
part-time 	representatives 	selected 	unilaterally by 	the 	academic
senate. 	This 	hardly evidences 	a willingness 	to 	carry the
part-time 	banner.
The District 	also 	argues 	that 	since 	the current 	bargaining
agreement 	is 	expiring 	in June of 	1988, 	now is 	an ideal 	time to
place 	part-timers 	into 	the 	established 	full-time unit. 	Because
the 	part-timers 	cannot 	be 	added 	to 	the 	existing 	unit 	via 	this
decision, 	the current 	stage of negotiations 	in that unit 	is
irrelevant.
Since 	the Peralta 	decision, 	the Board has 	dealt with 	the
placement 	of 	residual groups 	of 	employees 	on 	a 	case-by-case
15	15basis 	with occasional 	conflicting 	results. 	The District
cites San Diego Unified School District, 	supra, 	for 	support
that 	the petition 	should 	be dismissed.
15Pleasanton Joint School District, suprapra.
22

There 	are 	several 	similarities 	between San Diego 	and 	the
case 	at 	hand. 	There was 	a community of 	interest between the
hourly bus 	drivers 	and 	the 	regular 	bus 	drivers 	included 	in 	the
established unit. 	There 	also 	existed 	a 	potential 	for
"whipsawing" 	the 	employer 	by competing 	organizations
representing employees 	performing 	the 	same work. 	The Board
additionally noted 	concern 	that 	attempts 	to 	manage 	employees
doing 	the 	same work under different 	sets 	of 	personnel
procedures 	presented 	a 	burden upon the 	employer.
Mendocino Community College District, 	supra, 	is, 	however,
more closely on point to 	the 	facts 	at 	hand than 	is 	San Diego.
There the Board had before 	it 	a petition for 	a unit of
part-time 	faculty who were 	excluded 	from a unit 	of 	full-time
faculty granted voluntary 	recognition by the District. 	In
applying 	the 	Peralta 	presumption 	regarding 	the 	appropriateness
of 	a comprehensive 	teacher unit, 	the Board presumed 	a community
of 	interest 	between 	full-time 	and part-time 	faculty. 	Despite
that community of 	interest, 	the Board 	found 	facts 	sufficient 	to
refute 	the presumption of 	appropriateness 	of 	a 	single 	faculty
unit.
Attempts 	by part-time 	faculty to 	be 	included 	in 	the
full-time unit 	had been 	rebuffed. 	There was 	a very small
number 	of 	part-time 	faculty who 	had ever 	held membership 	in 	the
full-time organization. 	Including 	a 	large number of 	part-time
faculty 	into 	a 	significantly smaller 	full-time 	unit was 	likely
23

to 	create 	severe disruption of 	the 	existing negotiating
relationship. 	In 	finding 	no 	adverse effect 	on the 	efficiency
of District 	operations, 	the Board noted 	that while 	the District
may now have wanted 	to 	deal 	with 	a 	single 	comprehensive 	faculty
unit, 	it was 	the District which voluntarily recognized 	a
full-time 	faculty unit 	earlier. 	At 	the 	time 	it 	granted
recognition, 	the District 	raised no 	objection 	to 	the division
of 	its 	teaching 	staff 	for 	purposes 	of 	dealing with personnel
relations.
All of 	the 	above factors 	are present 	in the case 	at hand.
CTA-LBCC has 	declined 	to 	include 	part-time 	faculty 	into 	its
unit, 	and has 	a 	limited part-time membership. 	Even if 	it were
possible to order part-timers 	into 	the existing unit, 	it could
severely disrupt 	the 	stable 	bargaining 	relationship 	between
CTA-LBCC 	and 	the District. 	No 	overriding potential 	for 	adverse
effect 	on the efficiency of 	District 	operations 	exists,
particularly 	in 	light of 	the District's 	failure 	to 	raise 	any
such objections 	at 	the 	time 	it 	staunchly insisted upon
excluding 	part-time 	faculty 	from the 	original 	certificated 	unit.
Those 	factors, 	combined with the disenfranchisement of
bargaining 	rights 	of part-timers 	if 	the petition 	is 	dismissed,
outweigh 	the 	community of 	interest 	between 	full 	and part-time
faculty 	and 	are 	sufficient 	to 	rebut 	the 	presumption that 	only
one 	faculty unit 	is 	appropriate.
24

PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in
this case, 	it 	is hereby ORDERED that:
A unit 	consisting 	of 	certificated 	hourly 	instructors 	is
appropriate 	for 	negotiating 	in 	the Long 	Beach Community College
District, 	provided that 	an employee organization becomes 	the
exclusive 	representative of 	the unit.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a 	party files 	a 	timely statement of
exceptions with the Board 	itself 	at 	the headquarters 	office 	in
Sacramento within 20 days of 	service of 	this Decision. 	In
accordance with PERB Regulations, 	the 	statement of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of the 	record, 	if 	any, 	relied upon for such exceptions. 	See
California Administrative Code title 	8, 	part 	III,
section 	32300. 	A document 	is 	considered 	"filed" 	when 	actually
received before the close of business 	(5:00 p.m.) 	on the 	last
day set 	for filing, 	". 	. 	. o r when sent by telegraph or
certified or Express United 	States 	mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil Procedure section 	1013 	shall 	apply. 	Any statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served concurrently
with 	its 	filing upon each party to 	this 	proceeding. 	Proof 	of
25

service 	shall 	accompany each copy served 	on 	a 	party or 	filed
with 	the 	Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 33450, 	the Employer shall post 	a copy of the
Notice of Decision no 	later 	than 	10 	days 	following 	service of
the 	final decision 	in this 	case. 	The Notice shall 	remain
posted for 	a minimum of 	15 workdays.
Pursuant 	to 	section 33480, 	the Employer may grant
voluntary 	recognition to 	CHI. 	The Regional Director 	shall
conduct 	an election 	if 	the Employer does 	not 	grant voluntary
recognition.
Dated: 	July 15, 	1987 JAMES W. 	TAMM
Administrative 	Law 	Judge
26