La Mesa-Spring Valley School District * * * VACATED By La Mesa-Spring Valley School District (1983) PERB Decision No. 316a (PERB 0316E)

VACATED By La Mesa-Spring Valley School District (1983)
PERB Decision No. 316a •
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LA MESA-SPRING VALLEY 	SCHOOL 	DISTRICT,
Employer,
and
LA MESA-SPRING 	VALLEY 	TEACHERS
ASSOCIATION, CTA/NEA,
Employee 	Organization.
Case No. 	LA-UM-161
LA-R-514
PERB Decision No. 	316
May 31, 	1983
Appearances; 	Larry P. 	Schapiro, Attorney 	(Littler, Mendelson,
Fastiff 	& Tichy) 	for 	La Mesa-Spring Valley School District;
Charles 	R. 	Gustafson, 	Attorney 	for 	La Mesa-Spring Valley
Teachers Association, 	CTA/NEA.
Before Gluck, 	Chairperson; 	Tovar and Jaeger, Members.
DECISION
GLUCK, 	Chairperson: 	In a case 	notable 	for 	its procedural
idiosyncrasies, 	the La Mesa-Spring Valley Teachers Association,
CTA/NEA, 	(TA), 	the exclusive representative for a certificated
employee 	unit 	in 	the La Mesa-Spring Valley 	School District
(District), 	petitioned 	in November 	1980 	to add to the unit
substitute 	teachers 	who 	taught 	10 	percent 	of 	the 	time during
the 	previous 	and 	current 	school years. 	The petition was
accompanied 	by 	a majority proof 	of 	support. 	Five months 	later,
on March 23, 	1981, 	TA orally 	sought 	to amend 	its 	petition to
accrete 	all 	substitute 	teachers, 	irrespective of 	the 	amount 	of
time 	they 	taught. 	It 	acknowledged 	that 	it would 	not 	provide 	a
new 	proof of 	support.
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On the 	same 	day, 	the District raised 	an objection 	to 	the
use 	of 	the November 	proof 	of 	support. 	The 	hearing 	officer
found 	the proof 	to be 	"sufficient." 	At 	the 	same 	time, 	he
directed TA to 	file 	a written 	amendment 	of 	its 	original 	unit
modification 	petition 	and 	directed 	the 	District 	to 	submit 	a 	new
employee 	list.
A written 	amended petition was 	filed 	on March 	24. 	On
April 	1, 	the 	regional director 	informed 	the parties 	in writing
that 	the proof 	of 	support 	"is 	sufficient" 	and 	added 	that
objection 	to 	the 	appropriateness 	of 	the 	unit modification was
to be filed by April 21. 	On April 8, 	in 	its 	response 	to the
amended 	petition, 	the District 	"doubted" 	the 	appropriateness 	of
the 	modification 	and 	that 	TA had 	established 	majority 	support.
On April 23, 	by letter 	to the regional director, 	the
District 	"moved" 	to 	dismiss 	the 	amended 	petition 	on 	the 	grounds
that 	(1) 	no Board 	rule 	authorized 	an 	amendment 	to a 	unit
modification petition and, 	alternatively, 	(2) 	the appropriate
date 	for 	proof 	of 	support 	is 	the 	date 	of 	the 	amended petition.
It 	also claimed 	that 	some 	of 	the 	signatures 	on 	the 	proof 	of
support 	were 	more 	than one 	year 	old. 	The 	regional director's
response 	dated April 	27 	informed 	the 	District 	that 	the motion
should 	be made 	to 	the 	hearing 	officer.
The 	actual hearing 	began on May 	11, 	at which 	time 	the
District 	moved 	for 	dismissal 	on 	the 	same 	grounds 	cited 	in 	its
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April 	23 	l e t t e r . 	The 	hearing 	officer 	f i r s t 	responded 	to 	the
D i s t r i c t ' s April 	7 	(sic) 	motion,1 construing 	it 	as 	a 	request
for 	further 	investigation 	and denying 	i t . 	He 	then denied 	the
D i s t r i c t ' s 	immediate motion, 	adding 	two 	"comments." 	F i r s t , 	he
stated he 	had 	already denied 	the 	motion 	as 	to 	the 	proof 	of
support on March 	23; 	second, 	he 	found 	the objection 	to an
amendment 	untimely 	since 	the 	D i s t r i c t 	had 	not 	raised 	it 	on 	that
d a t e . 	He 	then stated he would defer 	his ruling 	on 	the motion
u n t i l 	the 	hearing 	was closed 	and 	he gave 	the TA's 	attorney 	the
opportunity 	to 	argue 	the 	issue 	in 	i t s 	post-hearing 	brief.
A hearing 	officer 	who replaced 	the original 	board 	agent
ultimately 	issued 	a 	proposed 	decision 	approving 	the 	unit
modification 	and 	denying 	the 	dismissal 	motion 	because 	it 	had
not 	been made 	within 	10 	days of 	the 	regional d i r e c t o r ' s April 	1
l e t t e r . 	The 	D i s t r i c t 	excepts 	to 	the 	adverse 	ruling 	on 	i t s
motion, 	essentially 	putting 	forth 	the 	same 	arguments 	it 	made 	to
the 	regional 	director 	and 	hearing 	officer.
DISCUSSION
The 	timeliness 	ruling. 	As we 	sort out 	the 	facts 	in 	these
unusual proceedings, 	we 	f i r s t 	conclude 	that 	the 	hearing
o f f i c e r ' s 	timeliness 	ruling 	was 	erroneous. 	The 	D i s t ri c t ' s
i n i t i a l objection 	(to 	the 	proof 	of 	support) 	was 	raised 	on
1The 	D i s t r i c t ' s motion was 	actually made on April 8.
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March 23. 	That 	it was 	not 	finally acted 	upon at 	that 	time 	is
manifest 	in 	the 	hearing officer's May 11 	decision 	to defer 	his
ruling 	until 	the 	record 	closed 	and 	his 	authorization 	to TA 	to
argue 	the 	issue 	in 	its post-hearing 	brief. 	The District's
renewed 	objections 	on April 8, 	April 	23 	and May 11 were
redundancies as 	to this 	issue.
The 	response 	objecting 	to 	the March 	23 	amendment 	was 	first
made 	on April 	8. 	Public Employment Relations Board 	rule
33263,2 	then 	in effect, 	provided 	a 20-day period 	for 	filing 	a
response 	to a 	unit modification petition. 	In this 	case, 	the
regional director 	gave 	the District 	until April 	21 	to 	file 	its
response. 	Under 	either provision, 	the District's April 8
objection was 	timely. 	The 	hearing 	officer's 	unexplained
reference 	to a 	10-day 	response 	time 	ignored both 	the 	rule 	and
the 	regional director's 	instructions.
The 	amended petition. 	It 	is 	not 	necessary 	to decide
whether 	the 	absence 	of 	a Board 	rule 	specifically 	authorizing 	an
amended 	unit 	modification 	petition 	invalidated 	the 	filing.
Unlike 	an amended 	pleading which 	adds 	facts, 	but maintains 	the
essential 	nature of 	the 	original pleading, 	the March 	filing
substantially 	altered 	the 	nature 	of 	the 	proposed 	change 	in 	the
unit 	composition. 	It would 	have 	substituted 	for 	one 	category
of 	employee - 	the 	10 	percenters 	- a larger 	category: 	all
2Board 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
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substitutes 	irrespective of 	time previously worked. 	Thus, 	the
amendment 	was 	effectively 	a 	new 	petition which 	replaced 	the
original. 	In so holding, 	we 	see 	in 	this result no prejudice 	to
the 	District 	which had 	the 	timely opportunity 	to 	- and 	did 	-
contest 	the 	various 	issues 	raised.
However, 	such 	a 	finding 	does 	not 	necessarily carry 	with 	it
the 	conclusion 	that a 	new proof 	of 	support 	was 	required.
Certainly, 	the proof 	to be 	valid must contain 	the 	timely
signatures 	of a majority 	of 	those 	employees 	sought 	to 	be
accreted 	to 	the 	unit. 	But 	nothing 	in our 	rules prohibits 	the
use 	of 	a proof 	of 	support 	which 	is 	filed 	before 	the 	petition.
Thus, 	if 	the proof 	relied on by TA contained 	signatures
obtained within one 	calendar 	year 	prior 	to 	the 	filing 	of 	the
new petition of a 	majority 	of employees 	in 	the 	all-inclusive
substitute 	category, 	TA would 	have 	met 	the 	requirements of
Board 	rules 	32700 	and 	33261 	then 	in 	effect.3
The 	usefulness 	of 	the 	proof 	of 	support 	relied 	upon 	by 	TA
cannot 	be 	determined 	from 	the 	record. 	The 	hearing 	officer's
March 23 	ruling 	cannot 	be 	credited. 	He 	apparently 	based 	his
decision on 	the 	belief 	that 	the new petition, 	as 	an 	"amendment"
to 	the original, 	required no new 	supporting documents.
However, 	if his 	request 	for 	an updated employee 	list 	reflects
3 Rule 	32700 	specifies 	that 	signatures 	acquired more 	than
one calendar 	year 	prior 	to 	the 	petition 	filing 	shall 	be
invalid. 	Rule 	33261 requires, 	inter 	alia, 	that proof of
support 	of a 	majority 	of 	employees 	sought 	to 	be 	accreted 	be
filed.
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another 	basis 	for 	his 	decision, 	he 	erred 	in finding that 	the
proof 	was sufficient 	before 	receiving 	that 	list. 	Nor, 	for 	the
same reason, 	does 	the 	regional director's 	laconic statement 	of
April 1, 	illuminate our way.
Because 	it 	is 	not 	possible 	to determine whether 	the 	proof
of 	support met 	the 	requirement of 	the 	rules 	then in effect, 	we
cannot, 	at 	this 	time, 	approve 	the 	unit modification. 	It 	is
appropriate 	to 	remand 	this matter 	to 	the 	director 	of
representation 	to determine whether 	the 	proof 	of 	support 	was
adequate 	in light of 	the 	new petition. 	Since 	the District 	has
not 	excepted 	to 	the 	proposed 	finding 	that 	the modification
would 	be 	appropriate, 	it 	shall be 	approved provided 	that 	the
proof 	of 	support 	issue 	is 	resolved 	to so permit. 	Otherwise,
the petition 	is 	to be dismissed.
ORDER
Based 	on 	the 	record 	and 	the 	foregoing 	findings 	of 	fact 	and
conclusions 	of 	law, 	the Public Employment Relations Board
ORDERS 	that 	the 	unit modification petition 	filed 	by 	the
La Mesa-Spring Valley Teachers Association, 	CTA/NEA, 	be
remanded 	to 	the 	director 	of 	representation 	for 	disposition 	in
accordance 	with 	the 	foregoing.
Members Tovar 	and Jaeger 	joined 	in 	this Decision.
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