State of California (Department of Personnel Administration) (California Correctional Peace Officers Association) (PERB 0776S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	PERSONNEL ADMINISTRATION,
Charging 	Party,
v.
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS ASSOCIATION,
Respondent.
Case No. 	S-UM-301-S
(S-SR-6)
PERB Decision No. 	776-S
October 6, 	1989
Appearance: 	Neyhart, Anderson, 	Nussbaum, 	Reilly & Freitas by
Victoria Chin, 	Attorney, 	for the California Correctional Peace
Officers 	Association.
Before Porter, 	Shank and Camilli, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the California
Correctional 	Peace Officers Association 	(CCPOA) 	of the PERB
regional director's 	dismissal 	of 	its 	petition for unit
modification. 	CCPOA challenges 	the regional director's
determination 	that proof 	of 	majority 	support 	among 	employees
in the 	classifications 	to be 	added 	to 	the unit was 	required.
The Board, 	upon a full review of the record herein, 	adopts
the regional 	director's 	attached order 	in 	its 	entirety,
consistent with the discussion below.
BACKGROUND
CCPOA, 	the 	exclusive 	representative 	for 	state bargaining
Unit 	6 	(Corrections), 	filed a unit modification petition alleging
that 	various 	Corrections 	classifications 	should be 	added 	to 	the
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unit 	on 	the 	ground 	that 	changed 	circumstances 	made 	their
exclusion as 	"supervisory employees"1 no 	longer appropriate. 	The
proposed 	modification would 	add 	approximately 	2,000 	employees 	to
a 	unit 	of 	approximately 	9,000 	employees.
Subsequent to the 	filing of 	the petition, 	the PERB regional
director 	informed 	CCPOA 	that 	the petition 	raised 	a 	question
concerning representation which, 	pursuant 	to PERB 	Regulation
32781(a)(1) 	and 	(f),2 required the filing of proof of 	support.
1Government Code 	section 	3522.1 provides 	as 	follows:
"Supervisory employee" 	means 	any 	individual,
regardless 	of 	the 	job description or title,
having authority, 	in the 	interest of 	the
employer, to hire, transfer, 	suspend, 	lay
off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
responsibility to direct them, 	or to adjust
their grievances, 	or effectively to recommend
such action, 	if, 	in connection with the
foregoing, 	the 	exercise of 	such authority 	is
not 	of a merely routine 	or clerical 	nature,
but requires 	the use of 	independent 	judgment.
Employees 	whose duties 	are 	substantially
similar to 	those 	of 	their 	subordinates 	shall
not 	be 	considered to be 	supervisory
employees.
2PERB Regulation 32781 provides, 	in pertinent part, 	as
follows:
Parties who wish to 	obtain Board 	approval
of 	a 	unit modification may 	file 	a petition
in accordance with the provisions 	of 	this
section.
(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
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CCPOA requested 	two 	extensions 	of 	time 	for 	filing 	the 	requisite
proof of 	support, 	both of which the regional director granted.
Ultimately, 	however, 	CCPOA did not 	submit proof of 	support, 	and
the 	regional 	director thereafter dismissed the petition 	in his
attached 	order.
DISCUSSION
CCPOA asserts, 	on appeal, 	that the discretionary language
regarding proof 	of 	support 	contained 	in PERB Regulation 	32 781
is 	not applicable to 	this dispute 	inasmuch as 	the true 	issue 	is
simply whether 	certain 	classifications 	are 	no 	longer 	excludable
as 	supervisory due 	to changed 	circumstances.
This 	argument must 	fail 	for the 	reasons 	stated by 	the
regional director 	in his 	order. 	We 	find that the 	regional
director did not 	exercise 	the 	agency's 	discretion arbitrarily
on these 	facts, 	particularly because the 	size of the group
representative of 	the unit.
(f) 	If the petition requests 	the addition
of 	classifications 	or positions 	to an
established unit pursuant 	to 	section 	(a)(l)
or 	(c) 	above, 	the Board may require proof of
majority 	support 	of persons 	employed 	in the
classifications 	or positions 	to be added.
Proof 	of 	support 	is 	defined 	in 	section 	32700
of these regulations.
It 	should be noted that 	Regulation 	32781 	was 	amended 	in 	1989,
with 	the 	result 	that the proof 	of 	support provision 	is 	now found
at 	32781(e).
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of 	employees 	to be added to the unit 	in this 	instance 	is
substantial, 	and 	could reasonably be 	expected to 	change 	the
structure of the unit 	if added thereto.
CCPOA 	further contends 	that, 	even if 	the 	imposition of 	the
proof of 	support requirement were appropriate herein, 	it 	is proof
of 	majority 	support within the 	entire 	unit 	once 	modified which
must 	be 	demonstrated.
Regulation 32781(f), 	during the relevant time period,
clearly 	stated 	that 	the 	Board may 	require 	"proof 	of 	majority
support 	of persons 	employed 	in the 	classifications 	or positions
to be added" 	to the unit. 	(Emphasis 	added.) 	We 	fail to 	see
how this 	section could be 	interpreted 	to 	require 	a 	showing 	of
majority 	support 	among 	employees 	in the 	entire 	unit 	once
modified.
Lastly, 	CCPOA argues 	that, 	should the Board 	find that
Regulation 	32781 	was 	properly applied by 	the 	regional 	director
herein, 	the regulation should be repealed, 	and it requests 	the
opportunity 	for oral 	argument on this 	issue.
Whether 	an 	existing 	regulation 	should 	be 	amended 	or 	repealed
is 	not, 	however, 	a matter we can address 	and resolve 	in the
context of 	this 	appeal. 	The procedural 	requirements 	for the
adoption, 	amendment and repeal 	of administrative regulations
are 	set 	forth in article 	5 	of the Administrative Procedure Act.
(Gov. 	Code, 	secs. 	11346-11347.5.) 	Should CCPOA wish to pursue
this 	course 	of action, 	it may make 	such a request of 	PERB outside
of 	this 	proceeding.
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ORDER
Based upon the 	foregoing and the 	entire record 	in this 	case,
it 	is 	hereby ORDERED 	that 	the 	unit modification petition 	filed by
the 	California 	Correctional 	Peace 	Officers Association 	in Case
No. 	S-UM-301-S 	is 	DISMISSED WITHOUT PREJUDICE.
Member 	Shank 	joined 	in this 	Decision.
Member Camilli's 	concurrence begins 	on page 	6.
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Camilli, 	Member, 	concurring: 	I 	concur with my colleagues
that 	the 	unit 	modification petition 	should 	be 	dismissed without
prejudice 	based 	upon California 	Correctional 	Peace 	Officers
Association's 	(CCPOA) 	failure to 	submit proof of majority
support. 	Additionally, 	I 	find that this 	case presents 	an
opportunity to 	further clarify PERB Regulation 32 781(f)1 and the
statement that: 	" . . . 	the Board may require proof 	of 	majority
support 	of persons 	employed 	in the 	classifications 	or positions
to 	be 	added 	. . . " 	(Emphasis 	added.)
The discretionary language of 	Regulation 32781(f) 	leaves 	to
the 	Board the 	determination of whether proof 	of 	majority 	support
should be required. 	The CCPOA argues 	that 	the 	application of
proof 	of 	majority 	support 	is 	"both 	illogical 	and 	contrary 	to
other provisions 	of the Act." 	Elimination of 	the Regulation
would prevent 	the Board 	from ensuring that 	employees' 	rights 	are
protected. 	The Regulation as 	it now stands 	is prudent as
employees' 	rights 	are protected by 	allowing the Board to 	exercise
its 	special 	expertise 	in determining on a 	case-by-case basis
whether proof 	of 	majority 	support 	should be 	required.
'see footnote 	2 	of majority Decision.
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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA. 	DEPARTMENT OF
PERSONNEL 	ADMINISTRATION,
Employer,
V.
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Petitioner.
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(S-SR-6)	)
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ORDER 	DISMISSING 	PETITION
FOR 	UNIT 	MODIFICATION
BACKGROUND
The 	above 	entitled 	petition 	for 	unit 	modification was 	filed
on January 	10, 	1986 	by California 	Correctional 	Peace 	Officers
Association 	(CCPOA). 	The 	petition alleged 	that 	the
classifications 	of 	Correctional 	Sergeant, 	Senior 	Group
Supervisor, 	Senior 	Youth 	Counselor, 	Assistant 	Head 	Group
Supervisor. 	Head 	Group 	Supervisor, 	Lieutenant 	and 	Captain
should 	be 	added 	to 	the 	State Unit 	#6 	bargaining unit. 	It
further 	alleged 	that 	a 	change 	in 	circumstances 	regarding 	the
job 	duties 	of 	these 	positions 	made 	their 	inclusion 	in 	the
bargaining 	unit 	appropriate, 	in 	that 	they 	no 	longer 	functioned
as 	"supervisory 	employees" 	under 	section 	3522.1 	of 	the 	State
Employer-Employee Relations Act 	(SEERA). 	Finally, 	the 	petition
alleged 	that 	this 	modification 	in 	the 	unit 	would 	add
. .. .
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approximately 	2000 	employees 	to 	a 	unit 	currently 	consisting 	of
about 	9000 	employees.
On February 7. 	1986. 	the 	undersigned 	informed 	CCPOA 	in
writing 	that 	the 	petition 	raised 	a 	question 	concerning
representation which 	required 	the 	filing 	of 	proof 	of 	support
under 	section 	32781(a)(l) 	and 	(f) 	of 	the Regulations 	of 	the
Public 	Employment 	Relations 	Board. 	My 	letter 	also 	indicted
that 	those 	rules 	required 	proof 	of 	majority support 	in 	the
classifications 	petitioned 	for. 	Finally, 	my 	letter 	requested
that 	such 	proof 	of 	support 	by 	filed 	with PERB 	not 	later 	than
March 3. 	1986.
Thereafter, 	the 	undersigned 	granted 	two 	CCPOA 	requests 	for
extensions 	of 	time 	for 	the 	filing 	of 	the 	required 	proof 	of
support. 	In the final 	extension of 	time 	to May 1, 	1986. 	my
letter 	informed 	the 	parties 	that 	failure 	to 	meet 	the May 	1
proof 	of 	support 	deadline 	would 	result 	in dismissal 	of 	CCPOA's
petition 	without 	prejudice 	under 	Board 	Regulations.
On April 	30. 	the 	undersigned 	was 	informed 	by 	letter 	that
CCPOA would 	not 	be 	submitting 	proof 	of 	support 	by May 	1.
Rather, 	CCPOA 	intended 	to 	challenge 	the 	applicability 	of 	PERB
Regulation 	32781(f) 	which 	required 	such 	majority 	support.
Thus. 	CCPOA 	indicated 	an 	intention 	to 	appeal 	the 	dismissal 	of
the 	petition 	referred 	to 	above.
DISCUSSION
The 	issue here 	is 	whether 	the 	requirement 	of 	proof 	of
majority 	support 	is 	inappropriate 	in 	situations 	such 	as 	that
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described 	above. 	CCPOA 	contends 	that 	the 	undersignee's 	request
for 	the 	filing 	of 	proof 	of 	support 	is 	inappropriate 	because
PERB 	Regulation 	32781(f) 	is 	"both 	illogical 	and 	contrary 	to 	the
provisions 	of 	the 	Act."
Section 	32781 	of 	the 	Board's 	regulation 	concerns 	petitions
for 	unit 	modification. 	That 	section 	provides, 	in 	relevant 	part:
32781. 	Petition
Parties 	who 	wish 	to 	obtain Board 	approval 	of
a 	unit 	modification may 	file 	a 	petition 	in
accordance 	with 	the 	provisions 	of 	this
section.
(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.
(f) 	If 	the 	petition requests 	the 	addition
of 	classifications 	or 	positions 	to 	an
established 	unit 	pursuant 	to 	section 	(a)(l)
or 	(c) 	above, 	the Board may require proof 	of
majority 	support 	of 	persons 	employed 	in 	the
classifications 	or 	positions 	to 	be 	added.
Proof 	of 	support 	is 	defined 	in 	section 	32700
of 	these 	regulations.
Section 	32786(f) 	of 	the Board's 	Regulation 	provides:
The 	Board 	shall 	dismiss 	a 	petition 	if 	it 	is
found 	to 	be 	improperly 	or 	not 	timely 	filed,
or 	if 	proof 	of 	support 	submitted 	falls 	short
of 	the 	required 	majority 	support.
The 	Board 	itself 	has 	not 	previously 	addressed 	the
circumstances 	for 	which 	proof 	of 	support 	may 	be 	required 	under
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its 	present Regulation 32781(f). 	However. 	Board 	regulations 	in
effect 	previous 	to 	the 	current 	regulations 	mandated 	the 	filing
of 	proof 	of 	support 	in unit modifications 	which 	"accreted
established 	positions 	into 	the 	bargaining 	unit."1 In
situations 	where 	a 	unit 	modification 	petition 	seeks 	to 	add 	a
substantial 	number 	of 	employees 	to 	an 	established 	bargaining
unit, 	the Board 	has 	required 	proof 	of 	majority 	support 	as 	a
matter 	of 	practice 	since 	adoption 	of 	the 	current 	unit
modification regulations. 	In 	like 	manner, 	the National 	Labor
Relations 	Board 	(NLRB) 	finds 	that 	requests 	similar 	to 	that
herein 	raise 	a 	"question 	concerning 	representation."
Based 	upon 	the 	above, 	it 	is 	my 	judgment 	that 	a 	petition 	to
add 	approximately 	2.000 	employees 	to 	the 	bargaining 	unit,
thereby 	increasing 	the 	unit 	size 	by more 	than 22%. 	is 	precisely
the 	type 	of 	situation 	envisioned 	by 	the 	Board 	in 	the
discretionary 	language 	of 	current 	Board 	Regulation 	327681(f).
Any 	subsequent 	addition 	to 	the 	bargaining unit 	of 	such
classifications 	previously 	excluded 	from 	the 	unit 	would
constitute 	a 	substantial 	change 	in 	the 	structure 	of 	that 	unit.
1La 	Mesa-Spring Valley 	School 	District. 	PERB 	Case 	No. 	316
(May 31. 	1983). 	at 	page 	5.
2union Electric Co.. 	217 NLRB 	666. 	667 	(1975); 	Boston
Cutting Die Company. 	258 NLRB 771 	(1981); 	Gas 	Service Company
52 	LRRM 	1037 	(1963).
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Under 	the 	above 	circumstances, 	therefore, 	a 	question 	concerning
representation 	necessitating 	the 	filing 	of 	majority 	support 	is
raised 	under 	Regulation 	32781(f). 	Board 	practice 	and NLRB 	case
law.
CCPOA 	argues 	that 	application 	of 	the 	proof 	of 	majority
support 	requirement 	of 	Regulation 	32781(f) 	is 	"both 	illogical
and 	contrary 	to 	other 	provisions 	of 	the Act." 	This 	assertion,
supported 	neither 	by 	case 	cites 	nor 	by 	any 	further 	delineation,
must 	be 	rejected. 	The 	language 	of 	the 	regulation 	itself 	must
govern 	this 	situation, 	and 	it 	is 	my 	function 	to 	determine 	the
proper 	circumstances 	under 	which 	the 	discretionary 	"may
require" 	language 	of 	the 	regulation 	should 	be 	implemented. 	As
I 	have 	indicated, 	based 	upon Board 	practice 	and 	NLRB 	caselaw,
it 	is 	my view 	that 	the 	instant 	case 	constitutes 	precisely 	the
type 	of 	situation 	envisioned 	by 	the 	Board 	in 	the 	language 	of
Regulation 32781(f).
It 	is 	also 	clear 	that 	CCPOA 	has 	not 	filed 	the 	required
proof 	of 	majority 	support 	in a 	timely manner. 	Indeed, 	CCPOA
had 	indicated 	it 	no 	longer 	intends 	to 	do 	so. 	As 	a 	result, 	its
petition 	must 	be 	dismissed 	under 	the 	provisions 	of
Regulation 32786(b).
Such 	dismissal 	without 	prejudice 	does 	not. 	however, 	prevent
a 	future 	refiling 	of 	the 	same 	petition with 	proof 	of 	majority
support 	at 	any 	later 	date. 	There 	is 	no 	statutory 	or 	regulatory
provision 	preventing 	CCPOA 	from 	reinstituting 	its 	petition, 	so
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long 	as 	that 	petition 	is 	accompanied 	by 	proof 	of 	majority
support.
Based 	upon 	the 	above. 	IT 	IS HEREBY ORDERED that 	the unit
modification 	petition 	filed 	by CCPOA 	in 	case 	No. 	S-UM-301-S 	be
dismissed, 	without 	prejudice.
An 	appeal 	of 	this 	decision 	pursuant 	to 	PERB 	Regulations
32350 	through 	32380 	may be 	made within 	10 	calendar 	days
following 	the 	date 	of 	service 	of 	this 	decision 	by 	filing 	an
original 	and 	5 	copies 	of 	a 	statement 	of 	the 	facts 	upon which
the 	appeal 	is 	based with 	the Board 	itself 	at 	1031 	18th Street,
Suite 	200, 	Sacramento. 	California 	95814. 	Copies 	of 	any appeal
must 	be 	concurrently 	served 	upon 	all 	parties 	and 	the 	Sacramento
Regional 	Office. 	Proof 	of 	service 	pursuant 	to 	Regulation 32140
is 	required.
Dated: 	June 	6, 	1986
Ronald 	Hoh
Regional 	Director
4751d
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