State of California (Department of Personnel Administration) (Communications Workers of America/California Association of Psychiatric Technicians) (PERB 0525S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATIONS WORKERS OF AMERICA,
and
CALIFORNIA ASSOCIATION 	OF
PSYCHIATRIC 	TECHNICIANS,
and
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION).
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) 	Case 	No. 	S-D-87-S
PERB Decision No. 	525-S
September 26, 	1985
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Appearances; 	Ronald Rosenberg and Kanter, 	Williams, 	Merin and
Dickstein by Howard 	L. 	Dickstein 	for 	Communications 	Workers 	of
America; 	Loren E. 	McMaster 	for 	California Association of
Psychiatric 	Technicians.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	and Porter,
Members.
DECISION
HESSE, 	Chairperson: 	The Communications Workers 	of America
(CWA) 	appeals a decision of the Chief, 	Division of
Representation 	(Chief) 	of 	the 	Public 	Employment 	Relations 	Board
(PERB or Board), 	dismissing as 	untimely CWA's 	challenge to the
status 	of 	the 	California Association 	of 	Psychiatric 	Technicians
(CAPT) 	as 	an employee organization. 	For 	the reasons 	set 	forth
below, 	we affirm the dismissal.
PROCEDURAL 	HISTORY
On April 	26, 	1985,'1 an agent 	of 	the 	Board 	certified
lAll 	dates 	are 	1985 	unless 	otherwise 	noted.
)

CAPT's 	petition 	to decertify CWA as 	the 	exclusive
representative 	of 	employees 	of 	the 	State of 	California 	in Unit
18 	(Psychiatric Technicians). 	The agent's decision, 	a
prerequisite 	to a directed 	election 	order, 	was 	a determination
that 	CAPT had 	demonstrated 	sufficient 	support 	among 	Unit 	18
members 	to 	justify holding 	a 	representation 	election 	to allow
the 	employees 	to select between 	CWA and 	CAPT. • 	The agent's
22see	see 	generally 	State 	Employer-Employee 	Relations 	Act
(SEERA or the Act), 	Government Code section 3512 et seq.
Section 	3520.5 	states:
(a) 	The state shall grant 	exclusive
recognition 	to 	employee 	organizations
designated 	or 	selected pursuant 	to 	rules
established by the board 	for 	employees 	of
the 	state 	or 	an appropriate 	unit 	thereof,
subject 	to 	the 	right 	of 	an 	employee 	to
represent 	himself.
(b) 	The board shall 	establish reasonable
procedures 	for petitions 	and 	for holding
elections 	and 	determining 	appropriate 	units
pursuant to subdivision 	(a).
(c) 	The board shall 	also establish
procedures 	whereby 	recognition 	of 	employee
organizations 	formally 	recognized 	as
exclusive 	representatives 	pursuant 	to a 	vote
of 	the 	employees 	may be 	revoked by a
majority vote of 	the 	employees 	only after 	a
period of not less 	than 12 months 	following
the 	date of 	such recognition.
PERB 	Regulation 	32770, 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	reads 	in relevant part:
(a) 	A petition 	for 	an 	election 	to decertify
an 	existing 	exclusive 	representative 	in an
established 	unit 	may be 	filed by a 	group of
employees 	within 	the 	unit 	or 	an employee
organization. 	The petition 	shall be 	filed
with 	the 	regional 	office 	utilizing 	forms
provided by 	the 	Board.
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determination was 	subject 	to 	the 	dictates 	of 	PERB Regulation
32705, 	which provides 	in relevant part:
(b) 	The petition shall 	be accompanied by
proof 	that 	at 	least 	30 percent 	of 	the
employees 	in the 	established 	unit 	either:
(1) 	No 	longer 	desire 	to be 	represented by 	the
incumbent 	exclusive representative; 	or
(2) 	Wish to be 	represented by another
employee 	organization.
Within 	10 days 	following 	the 	service of 	a
Board agent determination that any 	. 	. 	.
decertification petition 	is 	valid, 	any party
to 	the proceeding may 	file 	a 	challenge 	to
the 	status 	of 	the petitioner 	as 	an 	employee
organization.3
CWA filed a number of pleadings 	with PERB, 	challenging 	the
directed election order 	issued on May 6, 	1985, 	but did not 	file
any challenge 	to CAPT's 	status 	as 	an employee organization
withi 	4	n the allotted ten days.44
On May 27 or 	28, 	CWA discovered a copy of an unsigned
contract between CAPT and Western, 	Murch & Associates 	(WMA),
detailing 	certain 	consulting 	arrangements 	and payments 	between
CAPT and WMA. 	Based on the existence of 	this 	contract, 	on
3Government 	Code section 	3513(a) 	defines 	an employee
organization as:
(a) 	"Employee organization" means any
organization which 	includes 	employees 	of 	the
state 	and which has 	as 	one 	of 	its primary
purposes 	representing 	these 	employees 	in
their 	relations 	with 	the 	state.
4The 	other 	grounds 	on 	which 	CWA challenged 	the 	directed
election order 	were 	disposed of by 	the 	Board 	in PERB Order 	No.
Ad-146-S, 	and are not relevant here.
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June 	7 	CWA filed with the 	Board a challenge 	to CAPT's 	status 	as
an employee organization. 	The 	Board 	remanded 	the 	challenge 	to
the Chief 	for an 	"initial 	determination."5 On June 	14, 	the
Chief 	issued an Order 	to Show Cause 	to the parties, 	asking 	for
briefs 	to be 	filed 	as 	to why CWA's 	challenge of June 	7 	should
not 	be dismissed as 	untimely under 	Regulation 32705.
CWA filed briefs 	in support 	of 	its position that, 	since 	the
consulting 	contract 	was 	not 	discovered by 	CWA until 	May 	28th,
CWA could 	not have 	filed 	its 	challenge before 	that date. 	Since
it 	did 	file within 	10 days 	of discovery of 	the 	contract, 	CWA
argues 	it 	should be allowed 	to challenge 	CAPT's 	status. 	CAPT
opposed 	the 	filing on 	the grounds 	that 	(1) 	Regulation 	32705
provides 	for 	a 	challenge 	only within 	ten days 	of 	the 	agent's
determination, 	and that, 	(2) 	in pleadings prior to June 	7, 	CWA
had 	specifically 	stated 	it 	did not 	challenge 	CAPT's 	status.
Thus, 	CWA had waived 	its 	right 	to challenge CAPT.
On July 9, 	the 	Chief 	ruled 	that 	the discovery of 	the
consulting 	contract 	did 	not 	constitute 	an 	extraordinary
circumstance 	within 	the 	meaning 	of 	Regulation 	32136 	that 	would
permit 	a 	late 	filing.6 In 	reaching 	this 	determination, 	the
5PERB Order No. 	Ad-146-S at page 	7.
6Regulation 32136 provides:
A late 	filing may be 	excused 	in 	the
discretion of 	the 	Board 	only 	under
extraordinary circumstances. 	A late 	filing
which has 	been 	excused 	becomes 	a 	timely
filing 	under 	these 	regulations.
44

Chief 	examined 	whether 	the 	contract 	could 	be 	considered 	"newly
discovered 	evidence" 	such that 	it 	would have affected 	the
outcome 	of 	the 	agent's 	determination had 	its 	existence been
known. 	The 	Chief 	ruled 	(1) 	that 	the discovery of 	the contract
could have been made before May 28, 	and 	(2) 	even if 	it 	could
not have been made before May 28, 	its 	existence was 	not
"material," 	that 	is, 	it would not have altered the agent's
determination. 	Thus, 	the consulting contract did not
constitute 	"newly discovered 	evidence" 	that 	would 	qualify as 	an
extraordinary 	circumstance 	excusing 	the 	late 	challenge 	to
CAPT's status.
On appeal, 	CWA argues 	that 	the standard of 	"newly
discovered 	evidence" 	used by the 	Chief 	is 	inappropriate 	because
that 	standard 	applies 	only where 	an 	evidentiary hearing has
already been held. 	San Joaquin 	Delta 	Community College
District 	(1983) 	PERB Decision No. 	261(b) 	sets 	forth a test to
be 	used 	to determine 	whether 	the 	record 	in a case 	should 	be
reopened 	after 	a hearing 	in order 	to admit 	"newly discovered
evidence." 	Here, 	no evidentiary hearing has been held
(although CWA has 	requested one) 	and 	thus 	the exclusion of 	the
challenge under 	the 	above 	standard 	is highly inappropriate. 	In
response, 	CAPT presents 	essentially the same arguments 	made 	to
the Chief.
DISCUSSION
The 	assessment 	of 	whether 	"extraordinary circumstances" 	can
excuse 	a 	late 	filing 	under 	Regulation 	32705 	depends 	in part 	on
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the purpose 	of 	that 	regulation, 	and 	whether 	that purpose 	will
be 	frustrated by a 	late 	filing. 	In that 	regard, 	whether 	events
that 	cause 	an 	untimely challenge 	constitute 	"extraordinary
circumstances" 	is 	also 	intertwined with an examination of other
avenues 	of 	redress 	open 	to 	the aggrieved party. 	As 	set 	forth
in our reasons 	below, 	we 	find 	that 	CWA did not 	show
extraordinary circumstances 	to 	excuse 	its 	untimely challenge 	to
CAPT's 	status, 	but note 	that 	PERB regulations 	do not preclude
the 	timely 	filing of 	other 	challenges 	and 	charges 	that 	may
raise 	the same 	issues 	as 	this 	untimely challenge 	sought 	to do.
SEERA, 	like other collective bargaining statutes, 	has 	as
one of 	its purposes 	the recognition of state employees' 	right
"to 	join 	organizations 	of 	their 	own 	choosing and be 	represented
by 	those 	organizations 	in 	their 	employment 	relations 	with 	the
State."77 The 	Legislature 	granted 	the 	right 	to represent
state 	workers 	exclusively8 to an organization selected by a
majority of employees 	in the bargaining unit.9
In order 	to protect 	the 	employees 	from either 	(1) 	being
represented 	by an organization 	that 	no 	longer has 	the 	support
of a majority in the unit, 	or 	(2) 	losing opportunities 	to
bargain with 	the 	employer 	due 	to the 	uncertain status 	of 	an
7Government 	Code 	section 	3512.
8Government 	Code 	section 	3515.5.
9Government 	Code 	section 3520.5; 	PERB Regulation Nos.
32720-32786.
66

employee organization, 	this 	Board has 	always 	sought 	to resolve
promptly any questions 	concerning 	representation. 	(See
Folsom-Cordova USD 	(1978) 	PERB Order No. 	Ad-45.) 	To that end,
certain 	determinations 	of 	the 	Board are 	not 	subject 	to 	judicial
review.10	10 Furthermore, 	PERB regulations 	call 	for prompt
investigation when unit 	employees 	file a 	decertification
petition.11
Within 	this 	context 	of prompt 	and 	rapid 	resolution of
representational 	questions, 	the purpose of 	Regulation 	32705
becomes 	clear. 	In order 	to insure 	that 	the actual 	conduct of
the 	election 	will 	proceed promptly 	once 	a 	decertification
petition has 	been 	filed, 	our 	regulations 	contemplate 	that 	only
a 	limited 	time period be 	given 	to 	challenge 	the 	status 	of 	the
decertifying 	employee 	organization. 	This 	limited 	challenge
period effects 	a 	reasonable balance 	between 	the 	interest 	of 	the
employees 	in 	electing promptly their 	spokesperson and 	the
interest 	of 	an 	incumbent 	organization 	in not having 	to 	expend
resources 	on an 	election campaign against 	a party 	that 	may not
be 	an 	employee 	organization 	under 	the 	statute.
Thus, 	under PERB Regulation 32705, 	a party that believes,
for 	example, 	that 	a decertifying organization 	is 	unlawfully
dominated by management 	or has 	managerial 	and 	confidential
10s	lO ee	see 	e.g., 	Government Code section 	3520. 	(Determination
of 	unit 	question 	is 	not 	reviewable.)
11PERB 	Regulation No. 	32776.
77

employees 	in elective offices 	is permitted 	to raise 	those
challenges 	based 	on 	factual 	circumstances 	known at 	the 	time 	the
Board agent 	makes 	a determination on 	the proof of 	support.
Once 	the 	ten-day filing period has 	elapsed, 	however, 	challenges
to an organization's 	status 	that 	would delay the 	actual
balloting 	will 	be permitted 	only 	if 	the 	challenger 	establishes
that 	"extraordinary circumstances" 	prohibited 	filing 	in a
timely manner.
In so holding, 	we 	limit 	the application of 	"extraordinary
circumstances" 	to 	those 	situations 	where 	events 	occurring prior
to 	the 	expiration of 	the 	ten-day period prevent 	a 	timely
filing. 	In other words, 	should some happenstance such as
unexpected, 	serious 	illness 	or 	critical mechanical 	failure of
office 	equipment 	occur 	on 	the 	tenth 	day and prevent 	a 	timely
filing, 	the 	filing party could 	seek 	redress 	for 	the 	late 	filing
under 	Regulation 32136. 	In contrast, 	when circumstances 	that
occur 	after 	the 	ten-day period are 	relied on as 	a basis 	for
untimely 	filing, 	the Board will 	not halt 	the 	election process
at 	that 	juncture.
We note, 	however, 	that this application of the
"extraordinary circumstances" 	standard 	to 	Regulation 	32705
cases 	need not 	result 	in any permanent 	loss 	of 	rights held by
the party challenging an 	organization's 	status. 	A party 	that
acquires 	information germane 	to the 	status 	of another
organization has 	other 	avenues 	available 	to 	it. 	Any evidence
discovered prior 	to the ballots being mailed, 	as 	was 	the 	case
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here, 	can certainly be brought 	to the attention of 	the unit
members 	themselves. 	Those 	unit 	employees 	can express 	their
opinion 	as 	to 	the 	legitimacy of 	the 	decertifying organization
with their vote. 	Moreover, 	whatever 	transpires 	in the election
process, 	the 	incumbent still has 	other 	options 	to challenge 	the
decertifying 	organization's 	status.
Thus, 	PERB Regulation 32738(c)(1)12 provides 	for
post-election challenges. 	Newly discovered evidence, 	new
facts, 	or other 	circumstances 	may be 	the basis 	for 	a challenge
to 	the 	election after 	the ballot 	count has 	been completed.
This 	"election challenge" 	method has 	as 	an additional
advantage 	the 	fact 	that 	the 	election result may obviate 	any
need 	for 	the challenge. 	In such a case, 	the exclusive
representative 	can begin 	to 	represent 	the 	employees 	immediately
upon certification of 	the 	results.
On 	the other hand, 	the 	decertifying organization's 	status
can still be 	challenged at 	a 	time when 	the 	controversy 	is
ripe. 	Specifically, 	evidence as 	to the status 	of an
organization 	is 	most 	relevant 	when 	that 	organization would be
in a position 	to begin representation. 	Delaying challenges 	to
12PERB Regulation 32738(c)(l) 	reads:
(c) 	Objections 	shall be entertained by the
Board 	only on 	the 	following grounds:
(1) 	The conduct 	complained of 	interfered
with the employees' 	right 	to 	freely choose a
representative. . . .
99

the 	status 	of a 	representative because of 	evidence 	gathered
after 	the 	ten-day period serves 	the purpose of 	the Act by
preserving the 	employees' 	rights 	to a speedy election while at
the 	same 	time 	examining 	challenges 	only when 	there 	is 	immediate
danger 	of 	an unqualified 	organization 	commencing 	action 	as 	an
exclusive representative.13	13 	We 	note 	that 	our 	approach 	is 	not
new.114	14 4
Applying the 	foregoing analysis 	to the 	case at hand, 	the
Board holds 	that 	CWA's 	discovery of 	the 	consulting 	contract 	on
May 	28th 	did 	not 	constitute 	"extraordinary circumstances" 	that
would 	excuse 	a 	late-filed 	challenge 	to CAPT's 	status.
Critically, 	there 	is 	no 	indication that 	CWA was prevented 	from
filing a 	challenge 	to CAPT's 	status 	by May 6 	due 	to unusual
circumstances 	that 	occurred 	during 	the 	10-day 	filing
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period. 	Thus, 	having missed 	the period 	in which to 	file,
CWA is 	precluded 	from challenging 	CAPT's 	status 	before 	the
13Board 	Regulation 	32705 	does 	not mean 	that 	a charge 	that
a purported 	employee 	organization does 	not 	meet 	the 	law's
standards 	may only be brought, 	and 	is 	only timely, 	for a 	10-day
period 	following 	the 	service 	of 	the 	Board agent's 	determination
that 	a representation or decertification petition 	is 	valid.
Rather, 	the regulation is 	intended 	to preclude 	the 	filing of
such 	a 	challenge during 	an election process 	that has 	commenced
after 	the 	10-day period has 	expired. 	The purpose 	is 	to prevent
untimely delays 	or 	interruptions 	in 	the 	election process
itself, 	but not 	to prevent challenges 	at an appropriate time.
1 4 See Folsom-Cordova Unified 	School 	District 	(1978) 	PERB
Order 	No. 	Ad-45 	at pages 	4-5 	and the 	concurrence of Member
Gonzales.
15TO 	the contrary, 	for the time period 	in question CWA
expressed 	in pleadings 	to 	this 	Board 	that 	its 	intent 	was 	not 	to
challenge petitioner's 	status 	as 	an employee 	organization.
10

election results, 	but may persist 	in that 	claim through
appropriate post-election 	challenges.
In 	its 	appeal 	to the Board, 	CWA argues 	that 	the 	Chief 	ruled
on 	the merits 	of 	CWA's 	challenge 	without 	notice 	that 	she 	would
do so and without 	a proper hearing on the merits. 	Because we
have 	interpreted 	the 	application of 	"extraordinary
circumstances" 	in a different manner than the Chief, 	we 	find 	it
unnecessary to comment on 	the 	substance 	of 	CWA's 	challenge.
Rather, 	we 	uphold 	the determination 	that 	the discovery of 	the
contract 	on May 	28th does 	not 	constitute 	extraordinary
circumstances. 	Our 	ruling 	today does 	not preclude 	CWA from
filing an objection after 	the election, 	if 	appropriate at 	that
time.
ORDER
The 	appeal 	of 	CWA of 	the 	dismissal 	of 	the challenge 	to 	the
status 	of CAPT 	is hereby DENIED.
Members Morgenstern, 	Burt, 	and Porter 	join in this 	Decision.
11