PERB Decision No. 0369E•Mendocino Community College District (deBane Piche) (PERB 0369E)
Mendocino Community College District (deBane Piche) (PERB 0369E)
PERB Decision No. 0369ECalperb22 déc. 1983
Texte intégral
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD GERALD F. deBANE PICHE, Petitioner and Appellant, and MENDOCINO COLLEGE INSTRUCTORS ASSOCIATION, CTA/NEA, Employee Organization. ------------------------ ) ) ) ) ) ) ) ) ) ) ) Case No. SF-D-104 PERB Decision No. 369 December 22, 1983 Appearances: Gerald F. deBane Piche, representing himself. Before Tovar, Morgenstern and Burt, Members. DECISION MORGENSTERN, Member: This case is before the Public Employment Relations Board (Board) on an appeal filed by the petitioner, Dr. Gerald F. deBane Piche, which disputes the decision of the Board's Regional Director to dismiss the petitioner's decertification petition. We have reviewed the attached decision of the Regional Director in light of the petitioner's appeal and t:ne entire record 1n this matter. Finding it to be free from prejudicial error, we adopt it as the decision of the Board itself. ORDER The Board ORDERS that the petitioner's decertification petition filed on March 23, 1983 be DISMISSED. Members Tovar and Burt joined in this Decision.
PAIR OF CALIFORNIA GEORGE DEUXMEMAN, Garner PU::--,\ 1 :..:: E;\\?V)Y :\\~NT f!HATlONS 80Ai1D Sal\ f r<if1c!s(o f<efriunal Office ~--.•7 fu~t Srr~et,. 9;h Floor r~rc:nc.i,co, co:ifornia 94108 1_,(~1) 55-/-1350 Apri 1 19, 1983 Dr. Gerald F. deBane Piche Physics - Astronomy - Mathematics Instructor- Mendocino Corrununity College District P.O. Box 3000 Ukiah, California 95482 Dr. Lee Lowery President/Superintendent :Mendocino Cor.mmnity College District P.O. Box 3000 Ukiah, California 95482 Mr. Seigi Sugawara President - .MCIA/CTA/NEA P. 0. Box 3000 Ukiah, California 95482 Re: SF-D-104 (R-615) Mendocino Community College District - Dear Interested Parties: A decertification petition in the above-referenced case pursuant to PERB Regulation 327701 was filed with this office on March 28, 1983 by Dr. deBane Piche on behalf of a group of em2loye2s. The established unit consists of approximately thirty-eight full-time instructorr; of the Mendocino Community College District, currently represented by the Mendocino College Instructors Association/CTA/NEA (MCIA/CTA/NE.l\) .2 lpERB regulations are codified at California Administrative Code, title 8, part III, section 31001 .et seq. 2The Mendocino College Instructors Association/CTA/NEA was granted voluntary recognition on February 21, 1979 for a unit of all full-time certificated employe2s excluding the Superintendent/President, all Vice-Presidents, all Deans, allAssistant De~ns, all Directors, a]l part-time ccrtific~tcaemployees, an:7 all mc:rnagement, supervisory ancl confic1cntia.lcr;-:pJ.oyces.
Aoril 19, 1983 D~- Gerald F. deBane Piche Dr. Lee Lower'y t!r. Seigi SugawaraPc:ge 2 Section 3544.S(d) of the Educational Employment Relations Act (EER..j\) 3 permits employees anc1 employee organizations to seek to expel an incumbent organization or replace an incumbent with another organization by filing a petition with the Boarda The decertification petition was allegedly accompanied by proof that at least 30% of the employees in the established unit desired no reoresentation.4 The sole issue to be determined in this case is whether the proof of support submitted with the petition is adequate within the confines of sections 32770(b) 3The EERA is codified at Government Code section 3540 et seq. All statutory references herein are to the Govern~ent Code unless otherwise noted. Section 3544.S(d) authorizes the filing of a decertification petition, stating: A petition may be filed with the board, in accordance with its rules and regulations,requesting it t6 investigate and decide the question of whether employees have selected or wish ·to select an exclusive representative or to determine the appropriateness of a unit, by: • • o • • • • 0 0 • • • • • • • • • • 0 (d) An employee organization alleging that the employees in an appfopriate unit no longer desire a particular employee organization as their exclusive . representative, provided that such petition is supported by current dues deduction authorizations or other evidence such as notarized membership lists, cards, or petitions from 30 percent of the employees in the ne90tiating unit indicating support for another organization or lack of support for the incumbent exclusive representative. 4see attached copy of Decertification Petition, item 9.
Api::il lS, 1983 Dr. Ge~ald F. deBane PicheDr. Lee Lowery Mr. Seigi Sugawara Page 3 and 32700 of PERB's rules and regulations to sustain the decertification petition.5 DISCUSSION The proof of support which accompanied the petition consisted of individually signed statements in the format described as follows. At the top of each page, the following statement appeared: 5section 32770(b) provides: (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. Proof of support is defined in Division 1, Section 32700 of these regulations. Section 32700 provides in part: . . . . . . . . . . . . . . . . . . . (b) The proof of support shall indicate each employee's printed name, signature, job title or classification ana the date on which each individual's signature wos obtained. A signature without evidence that it was obtained within one calendar year prior to the filing of the petition requiring employee support shall be invalid for the purpose of calculating prooE o[ support. Any signature meeting the requircraent~ of this Section shall he consid:::::rcd val i.d evE'n thouCJh the signatorhas executed c1utho1:iz<1.tir:i;1s for 1~,orc thc1n one employ~e org~niz~tion.
Apr:il 19, 1983 Dr. Gerald F. deBane Piche Dr. Lee Lowery Mr. Seigi Sugawara Puge 4 PETITION TO PERB FOR A DECERTIFICATIONELECTION OF MCIA (MENDOCINO COLLEGE INSTRUCTOR ASSOCIATION) MARCH 10, 1983 'The body of each statement contained three options, one of which was to be selected by the signatory employee: I / A. I I B. L_,_I C. I wish to decertify MCIA as the exclusive representative agent under the California Teachers Association. I wish to decertify MCIA as the exclusive representative agent under CTA and form a new MCIA under local control. I wish to retain MCIA as the exclusive representative agent under the California Teachers' Association. A space for the employee's printed name and signature was provided and, at the bottom of each page, the statement "Please return to my ma:i.lbox by March 18, 1983." was printed~ Neither ~he number of option A signed statements nor the number of option B signed statements submitted with the petition demonstrates at least 30 percent proof of support as required by section 32770(b) suora.6 In addition, a number of employees selected option c.7 6using the approximate figure of thirty-eight eQployees in the unit as stated on the petition, 30 percent proof of support would require at least twelve valid authorizations for .s.._itber option A~~ B. 7This ontion is irrelevilnt to tho instant procecJinq r;inse it seeks to retain tho incumbent an:1 nullifi.t::-s th1~ intent of' cJcccrtifica.ti.01-!potition~~ \•1bLch Lo either to ou~;1: the~ .i.ncui'1hent or ou~;t: 2ncl repl_,,tcc it ·di th another E:i•.,i)i.o~:c,c• Cl C (_:JC! n l Z cl t i O rt .
;rnril 19, 1983 D~- Gerald F. deBane Piche Dr. Lee Lower-y Mr. Seigi Sugawara Page 5 the When informed of I Dr. deBane Piche of the deficiency proof of support on April 4, 1983,8 he asked that I combine the totals submitted for both options and render the support sufficient to meet PERB regulation requirements since both at least sought to decertify MCIA/CTA/NEA. As I explained to nr=-aeBane Piche, I must adhere to a reauirement of strict compliance with PERB regulations. Proof of support in decertification cases must clearly and unequivocably state that either the emplpyees no longer desire the incumbent (32770(b} (1)) or wish to be represented by another employee organization (32770(b) (2)). The PERB has stated that~- •• it is the responsibility of the petitioner to present to PERB evidence showing the necessary proof of support'' and that " • the burden placed on petitioners to assure the accuracy of their supporting materials is not an unreasonable one." Petaluma Citv Elementary ana Hiqh School Districts (6/30/82) PERB Order No. Ad-131, at p. 5. The those clearly intent of individuals executing option Bis different f rem the intent of those employees that selected :: option A. Option A merely seeks decertification of the incumbent exclusive representative and, assuming timely filing an<l adequnte proof of support, would result in a decPrtification election ballot which offered a selection between }1CIA/C<fA/NEA and No Representation. Option B I on the other hand, seeks to replace the exclusive representative with ". • • a new HCIA unaer lo::::.:i.l control. 11 When the formation of read together with option A, the intent of the employees expressing a desire for option Bis especially clear since, if they simply desired to expel the incumbent, they would have be chosen option A. Their selection of option B must therefore interpreted as a desire that another organization replace Brn accordance with PERE policy to revie~ aecertiEication p2titions i~uediately upon receipt, I attempted to contact Dr. deBane Piche on March 28, 1983 to inform him of the npparent shortcomings of the petition. I was told that he was and unre2chc1ble until Sund~lf, April 3, 1983. I out of town insisted that a raessage for hir,1 to call rne b2 left at his reccptio:-:ist, Debbi2 Rosen, r<:.:turned r,,y call anc1 ho,:te. 'l'he h(;c1r that my me:::jsag-2 bo.::-1 boen for 1.-;au1~r1. I did notconfirmed from Dr. clcB~ne Piche pri.oi: to the· clc)~:::: of the- ~:i.nJo;, porio:1.
1~., ,·1· l 70 1nq3 '1 l;:) i.. w - ..J.. :; I • ;; '- Dr. Gerald F. deBane Piche Dr. Lee LO'dery Mr. Seigi Sugawara Page 6 MCIA/CTA/NEA and appear as a third ballot choice along with the incumbent and No Representation in any election held as a result of the petition. Consequently, it cannot be inferred that employees who selected option B would necessarily prefer option A to option C, the status quo. Since options A and B would each result in a different set of ballot choices, it would be a violation of the express provisions of PERB regulation 32770(b) to combine the option A and B proof of support as suggested by Dr. DeBane Piche. The proof of support submitted with the decertification petition must be rejected for other reasons as well. PERB Regulation 32700(b) specifically requires that each signatory employee's job title or classification be indicated, and that "the date on which each individual's signature was obtained" also be included.9 Each signature submitted with the petition was undated and did not include a job title.10 As stated above, no waiver of proof of support requirementscontained in PERB regulations can be made. Because the proofof support submitted in this case is defective in several resp::c ts as d iscus.sE::d abo 0 1e, it is deterrni r.iec1 that the proof submitted is insufficient to support the decertificationp~tition. For this reason, the petition is hereby dismissed. Because the petition has failed due to insufficient proof of support, no determination regarding the timeliness of the petition is required. An appeal of this decision pursuant to PEP~ Regulations 32350 through 32380 may be made within 10 calendar days following the date of service of this decision by filing an original and s c6pies 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 9see Petaluma Citv Elcmentvcy and H~qb__School Districts suora anc1 A. \'lerrcian ar1.c1 Sons, Inc. (1955), LRP,~-1 114 NLRB 629 [37l O 21] . - ----- 10Tl1e petition fori,1.::~ utiJi1.e:c1 hc1d d-::t~-.e::; pr:into11 on themp :-: i or to c i r cu J. at.:. ion . 'l' h is pr i.l c t. i c e c1 o ~:; not m co i:. th r_, rccruirer:1cnt ..... t11at cc:ch ~;iqn,tt.t 1 -~~- rc b-::- ------~--·"---· ---~·---·- c1o.tie:c1.
Aoril 1 9 , 1983 D~ . Ge ra ld F . deBane Pich e Dr . Lee Lo ·..; ery Mr . Seigi Suga wara : ?ag e ·1 co ncur ~ ently served upon all parties a nd the San Francis c-:> Regional Office . Proof of se rv ice pursuant to Regulatio~ 3 2140 i s r equired . P lease contact me should you have any que stio ns concerning this matt er . Very truly yours , Anita I. Martin e z Reg i onal Dir ecto r AIM: ir Att achment
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STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD GERALD F, deBANE PICHE, Petitioner and Appellant, Case No. SF-D-104 and PERB Decision No. 369 MENDOCINO COLLEGE INSTRUCTORS December 22, 1983 ASSOCIATION, CTA/NEA, Employee Organization. ee ed Appearances: Gerald F. deBane Piche, representing himself. Before Tovar, Morgenstern and Burt, Members. DECISION MORGENSTERN, Member: This case is before tne Public Employment Relations Board (Board) on an appeal filed by the petitioner, Dr. Gerald F. deBane Piche, which disputes the decision of the Board's Regional Director to dismiss the petitioner's decertification petition. We have reviewed the attached decision of the Regional Director in light of the petitioner's appeal and the entire record in this matter. Finding it to be free from prejudicial error, we adopt it as the decision of the Board itself. ORDER The Board ORDERS that the petitioner's decertification petition filed on March 23, 1983 be DISMISSED. Members Tovar and Burt joined in this Decision. PAIR OF CALIFORNIA GEORGE DEUXMEMAN, Garner PU::--,\ 1 :..:: E;\\?V)Y :\\~NT f!HATlONS 80Ai1D Sal\ f r<if1c!s(o f<efriunal Office ~--.•7 fu~t Srr~et,. 9;h Floor r~rc:nc.i,co, co:ifornia 94108 1_,(~1) 55-/-1350 Apri 1 19, 1983 Dr. Gerald F. deBane Piche Physics - Astronomy - Mathematics Instructor- Mendocino Corrununity College District P.O. Box 3000 Ukiah, California 95482 Dr. Lee Lowery President/Superintendent :Mendocino Cor.mmnity College District P.O. Box 3000 Ukiah, California 95482 Mr. Seigi Sugawara President - .MCIA/CTA/NEA P. 0. Box 3000 Ukiah, California 95482 Re: SF-D-104 (R-615) Mendocino Community College District - Dear Interested Parties: A decertification petition in the above-referenced case pursuant to PERB Regulation 327701 was filed with this office on March 28, 1983 by Dr. deBane Piche on behalf of a group of em2loye2s. The established unit consists of approximately thirty-eight full-time instructorr; of the Mendocino Community College District, currently represented by the Mendocino College Instructors Association/CTA/NEA (MCIA/CTA/NE.l\) .2 lpERB regulations are codified at California Administrative Code, title 8, part III, section 31001 .et seq. 2The Mendocino College Instructors Association/CTA/NEA was granted voluntary recognition on February 21, 1979 for a unit of all full-time certificated employe2s excluding the Superintendent/President, all Vice-Presidents, all Deans, allAssistant De~ns, all Directors, a]l part-time ccrtific~tcaemployees, an:7 all mc:rnagement, supervisory ancl confic1cntia.lcr;-:pJ.oyces. Aoril 19, 1983 D~- Gerald F. deBane Piche Dr. Lee Lower'y t!r. Seigi SugawaraPc:ge 2 Section 3544.S(d) of the Educational Employment Relations Act (EER..j\) 3 permits employees anc1 employee organizations to seek to expel an incumbent organization or replace an incumbent with another organization by filing a petition with the Boarda The decertification petition was allegedly accompanied by proof that at least 30% of the employees in the established unit desired no reoresentation.4 The sole issue to be determined in this case is whether the proof of support submitted with the petition is adequate within the confines of sections 32770(b) 3The EERA is codified at Government Code section 3540 et seq. All statutory references herein are to the Govern~ent Code unless otherwise noted. Section 3544.S(d) authorizes the filing of a decertification petition, stating: A petition may be filed with the board, in accordance with its rules and regulations,requesting it t6 investigate and decide the question of whether employees have selected or wish ·to select an exclusive representative or to determine the appropriateness of a unit, by: • • o • • • • 0 0 • • • • • • • • • • 0 (d) An employee organization alleging that the employees in an appfopriate unit no longer desire a particular employee organization as their exclusive . representative, provided that such petition is supported by current dues deduction authorizations or other evidence such as notarized membership lists, cards, or petitions from 30 percent of the employees in the ne90tiating unit indicating support for another organization or lack of support for the incumbent exclusive representative. 4see attached copy of Decertification Petition, item 9. Api::il lS, 1983 Dr. Ge~ald F. deBane PicheDr. Lee Lowery Mr. Seigi Sugawara Page 3 and 32700 of PERB's rules and regulations to sustain the decertification petition.5 DISCUSSION The proof of support which accompanied the petition consisted of individually signed statements in the format described as follows. At the top of each page, the following statement appeared: 5section 32770(b) provides: (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. Proof of support is defined in Division 1, Section 32700 of these regulations. Section 32700 provides in part: . . . . . . . . . . . . . . . . . . . (b) The proof of support shall indicate each employee's printed name, signature, job title or classification ana the date on which each individual's signature wos obtained. A signature without evidence that it was obtained within one calendar year prior to the filing of the petition requiring employee support shall be invalid for the purpose of calculating prooE o[ support. Any signature meeting the requircraent~ of this Section shall he consid:::::rcd val i.d evE'n thouCJh the signatorhas executed c1utho1:iz<1.tir:i;1s for 1~,orc thc1n one employ~e org~niz~tion. Apr:il 19, 1983 Dr. Gerald F. deBane Piche Dr. Lee Lowery Mr. Seigi Sugawara Puge 4 PETITION TO PERB FOR A DECERTIFICATIONELECTION OF MCIA (MENDOCINO COLLEGE INSTRUCTOR ASSOCIATION) MARCH 10, 1983 'The body of each statement contained three options, one of which was to be selected by the signatory employee: I / A. I I B. L_,_I C. I wish to decertify MCIA as the exclusive representative agent under the California Teachers Association. I wish to decertify MCIA as the exclusive representative agent under CTA and form a new MCIA under local control. I wish to retain MCIA as the exclusive representative agent under the California Teachers' Association. A space for the employee's printed name and signature was provided and, at the bottom of each page, the statement "Please return to my ma:i.lbox by March 18, 1983." was printed~ Neither ~he number of option A signed statements nor the number of option B signed statements submitted with the petition demonstrates at least 30 percent proof of support as required by section 32770(b) suora.6 In addition, a number of employees selected option c.7 6using the approximate figure of thirty-eight eQployees in the unit as stated on the petition, 30 percent proof of support would require at least twelve valid authorizations for .s.._itber option A~~ B. 7This ontion is irrelevilnt to tho instant procecJinq r;inse it seeks to retain tho incumbent an:1 nullifi.t::-s th1~ intent of' cJcccrtifica.ti.01-!potition~~ \•1bLch Lo either to ou~;1: the~ .i.ncui'1hent or ou~;t: 2ncl repl_,,tcc it ·di th another E:i•.,i)i.o~:c,c• Cl C (_:JC! n l Z cl t i O rt . ;rnril 19, 1983 D~- Gerald F. deBane Piche Dr. Lee Lower-y Mr. Seigi Sugawara Page 5 the When informed of I Dr. deBane Piche of the deficiency proof of support on April 4, 1983,8 he asked that I combine the totals submitted for both options and render the support sufficient to meet PERB regulation requirements since both at least sought to decertify MCIA/CTA/NEA. As I explained to nr=-aeBane Piche, I must adhere to a reauirement of strict compliance with PERB regulations. Proof of support in decertification cases must clearly and unequivocably state that either the emplpyees no longer desire the incumbent (32770(b} (1)) or wish to be represented by another employee organization (32770(b) (2)). The PERB has stated that~- •• it is the responsibility of the petitioner to present to PERB evidence showing the necessary proof of support'' and that " • the burden placed on petitioners to assure the accuracy of their supporting materials is not an unreasonable one." Petaluma Citv Elementary ana Hiqh School Districts (6/30/82) PERB Order No. Ad-131, at p. 5. The those clearly intent of individuals executing option Bis different f rem the intent of those employees that selected :: option A. Option A merely seeks decertification of the incumbent exclusive representative and, assuming timely filing an<l adequnte proof of support, would result in a decPrtification election ballot which offered a selection between }1CIA/C<fA/NEA and No Representation. Option B I on the other hand, seeks to replace the exclusive representative with ". • • a new HCIA unaer lo::::.:i.l control. 11 When the formation of read together with option A, the intent of the employees expressing a desire for option Bis especially clear since, if they simply desired to expel the incumbent, they would have be chosen option A. Their selection of option B must therefore interpreted as a desire that another organization replace Brn accordance with PERE policy to revie~ aecertiEication p2titions i~uediately upon receipt, I attempted to contact Dr. deBane Piche on March 28, 1983 to inform him of the npparent shortcomings of the petition. I was told that he was and unre2chc1ble until Sund~lf, April 3, 1983. I out of town insisted that a raessage for hir,1 to call rne b2 left at his reccptio:-:ist, Debbi2 Rosen, r<:.:turned r,,y call anc1 ho,:te. 'l'he h(;c1r that my me:::jsag-2 bo.::-1 boen for 1.-;au1~r1. I did notconfirmed from Dr. clcB~ne Piche pri.oi: to the· clc)~:::: of the- ~:i.nJo;, porio:1. 1~., ,·1· l 70 1nq3 '1 l;:) i.. w - ..J.. :; I • ;; '- Dr. Gerald F. deBane Piche Dr. Lee LO'dery Mr. Seigi Sugawara Page 6 MCIA/CTA/NEA and appear as a third ballot choice along with the incumbent and No Representation in any election held as a result of the petition. Consequently, it cannot be inferred that employees who selected option B would necessarily prefer option A to option C, the status quo. Since options A and B would each result in a different set of ballot choices, it would be a violation of the express provisions of PERB regulation 32770(b) to combine the option A and B proof of support as suggested by Dr. DeBane Piche. The proof of support submitted with the decertification petition must be rejected for other reasons as well. PERB Regulation 32700(b) specifically requires that each signatory employee's job title or classification be indicated, and that "the date on which each individual's signature was obtained" also be included.9 Each signature submitted with the petition was undated and did not include a job title.10 As stated above, no waiver of proof of support requirementscontained in PERB regulations can be made. Because the proofof support submitted in this case is defective in several resp::c ts as d iscus.sE::d abo 0 1e, it is deterrni r.iec1 that the proof submitted is insufficient to support the decertificationp~tition. For this reason, the petition is hereby dismissed. Because the petition has failed due to insufficient proof of support, no determination regarding the timeliness of the petition is required. An appeal of this decision pursuant to PEP~ Regulations 32350 through 32380 may be made within 10 calendar days following the date of service of this decision by filing an original and s c6pies 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 9see Petaluma Citv Elcmentvcy and H~qb__School Districts suora anc1 A. \'lerrcian ar1.c1 Sons, Inc. (1955), LRP,~-1 114 NLRB 629 [37l O 21] . - ----- 10Tl1e petition fori,1.::~ utiJi1.e:c1 hc1d d-::t~-.e::; pr:into11 on themp :-: i or to c i r cu J. at.:. ion . 'l' h is pr i.l c t. i c e c1 o ~:; not m co i:. th r_, rccruirer:1cnt ..... t11at cc:ch ~;iqn,tt.t 1 -~~- rc b-::- ------~--·"---· ---~·---·- c1o.tie:c1. Aoril 1 9 , 1983 D~ . Ge ra ld F . deBane Pich e Dr . Lee Lo ·..; ery Mr . Seigi Suga wara : ?ag e ·1 co ncur ~ ently served upon all parties a nd the San Francis c-:> Regional Office . Proof of se rv ice pursuant to Regulatio~ 3 2140 i s r equired . P lease contact me should you have any que stio ns concerning this matt er . Very truly yours , Anita I. Martin e z Reg i onal Dir ecto r AIM: ir Att achment
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