Cabrillo Community College District (PERB A090E)

CABRILLO
	COMMUNITY
	COLLEGE
	DISTRICT,
Employer,
and
CABRILLO
	COLLEGE 	FACULTY
ASSOCIATION,
Employee
	Organization.
STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
)
)
Case
	No.
	SF-R-614
PERB
	Order
	No. 	Ad- 90
·ADMINISTRATIVE APPEAL
May
	19,
	1980
)
)
)
)
)
)
)
)
)
Appearances:	
John
	L. 	Bukey,
	Attorney 	(Biddle, 	Walters	
& Bukey)
	for
Cabrillo
	Community
	College
	District;
	Kirsten
	L.
	Zerger, 	Attorney 	for
Cabrillo
	College 	Faculty Association,
	CTA/NEA.
Before
	Gluck,
	Chairperson;
	Gonzales
	and
	Moore, 	Members.
DECISION
	AND
	ORDER
The
	Cabrillo
	College
	Faculty 	Association,
	CTA/NEA
	(hereafter
Association) 	appeals
	from
	the
	San
	Francisco
	Regional
	Director's
granting 	of
	a
	motion
	':o
	dismiss
	a
	request 	for 	recognition
	filed
	by
the 	Association.
It
	is
	evident
	from
	the
	facts 	presented
	on
	the 	record
	in 	this
case
	that
	the
	motion
	to 	dismiss
	was 	made 	by
	the
	District
	during 	the
course 	of 	the 	representation 	hearing.
	The
	merits 	of 	this
	motion
do
	not
	concern us
	here 	as 	the 	issue 	in 	this
	case
	is
	procedural
	and
not 	substantive 	in 	nature.

Section
	32350
	of
	the
	California
	Administrative
	Code
	sets
	forth
criteria
	which
	distinguish
	administrative
	appeals
	from
	other.
appealable 	decisions
	made 	by
	PERB
	staff	
Normally,
	a
	motion
	to
dismiss
	a
	request 	for 	recognition
would
	not
	be
	appealable
	through
the
	administrative
	appeal
	process.
	Here, 	however,
	the
	hearing
	officer
did
	not
	rule
	on
	the
	motion
	but
	instead referred
	the
	motion
	to 	the
regional
	director
	who
	thereupon
	rendered 	the 	determination.
	It
	is
this
	determination
which
	is
	objected
	to
	by
	the 	Association.
1 .
It
	is
	the 	opinion
	of
	the
	Board
	itself
	that
	the 	proper 	procedure
for
	ruling
	on
	such
	a
	motion
was
	not
	followed
	here.
	A
motion
	to
dismiss
	is
	to
	be
	ruled
	on 	by
	the 	hearing
	officer.
	Accordingly,
	we
remand
	this
	case 	to 	the 	hearing
	officer
	with
	instructions
	to
	rule
1
section
	32350(~)
	states:
Definition 	of 	Administrative 	Decision.
(a)
	An
	administrative 	decision
	is
	any
	determination
	made
by
	the 	Executive 	Director,
	a
	Regional
	Director, 	the
	General
Counsel, 	the 	Chief Administrative
	Law
	Judge,
	or 	the 	Executive
Assistant 	to 	the
	Board
	other 	than
	a
	refusal
	to 	issue
	a
com
	laint 	in
	an
	unfair 	ractice
	case 	ursuant 	to
	Section
ecision 	issue 	ursuant 	to 	Section
	e
one
	or
	a
	ecision
which
	resu 	ts
	rom
	the
	con
	uct
	o 	a
formal 	hearing.
	Any
	administrative 	decision 	issued
	by 	an
agent 	of 	the 	above
	listed 	staff 	officers 	shall
	be 	consideredas 	issued
	by
	the 	Executive 	Director, 	Regional 	Director,General 	Counsel, 	Chief 	Administrative
	Law
	Judge,
	or 	Executive
Assistant 	to 	the 	Board. 	((and
	if
	appealable, 	shall
	be 	appealed
directly 	to 	the 	Board
	itself.))
-2-

on
	the
	motion
	to 	dismiss
	and
	to 	prepare
	a 12roposed
	decision
	as
	required
by
	Section
	32215
. 	2
of 	the
	California
Administrative
	Code.
ORDER
This 	case
	is
	remanded
	to 	the 	hearing
	officer.
	The
	hearing
officer 	is
	instructed	
to	
rule
	on
	the
	motion 	to 	dismiss
	and
	proceed
thereafter
	in
	accordance
	with 	Section
	32165
	et
	seq.
	of 	the
	California
Administrative
	Code. 
PER
	CURIAM
2
section
	32215
	states:
Proposed 	Decision.
	At
	the 	close 	of 	the
	formal
	hearing 	the
case
	shall
	be 	submitted	
to	
the
	Board
	agent 	conducting 	the
hearing 	or 	another
	Board
	agent 	assigned
	by
	the 	Chief
Administrative
	Law
	Judge who
	shall 	issue
	a
	proposed 	decision
or
	submit 	the 	record 	of 	the 	case 	to 	the
	Board
	itself
	for
decision 	pursuant 	to 	instructions
	from
	the
	Board
	itself.
The 	proposed 	decision 	shall
	be
	in writing
	and
	contain
	a
statement 	of 	the 	case, 	findings 	of 	fact, 	conclusions 	of
law and
	the 	order.
	The 	Board
	shall 	serve 	the 	proposed
decision
	on 	each 	party.
-3-

STATE
	OF
	CALIFORNIA
?UBLlC
	EMPLOYMENT
	RELATIONS
	BOARD
CA.BRILLO
	COM.~UNITY
	COLLEGE
	DISTRICT,
Employer,
and
CABRILLO
	COLLEGE
	FACULTY
	ASSCC!ATION,
Employee
	Organization
. )
)
)
}
)
)
)
} '
)
)
	__________________
)
PROCEDURAL
	HISTORY
ADMINISTRATIVE
OETElmlNA'l'ION
Case
	No.
	SF-R-614
(11/20/79)
On
	September 	27,
	1978,
	the
	Cabrillo
	College 	Faculty
As;sociation,	
CTA/NEA	
(hereafter
	Asaociation) 	f.iled
	a
	request
·for 	recognition 	for
	a
	unit
	of
	all
	full-time
	(60
	percent
	or
	more
of
	a
	regular
	teaching
	assignment)
	contract
	certificated
	faculty
in
	the 	Cabrillo
	Community
	College
	District
	(hereafter 	District)
excluding 	the 	following:
	district
	auperint:endent 	and
	college
president,
	assistant 	superintendent-instruction,
	assistant
superintendent-business 	services,
	dean
	of
	instructional·
services,
	administrative
	dean
	of 	student 	services,
	dean
	of
placement-financial
	a.ids,
	administrative
	dean
	of
	community
services,
	dean
	of 	occupational
	and
	construction 	ed~cation,
	dean
of 	special 	services,
	and
	dean
	of 	student
	affairs.
A
letter
	informin9 	both
	parties
	of 	the 	sufficiency 	of
support
	was
	sent 	by	
this 	office
	on 	October 	30,
	1978 	and 	on
November
	9, 	1978, 	the 	employer
	filed
	its
	response 	denying
tecognition
	and
	requesting
	a
	representation 	hearing.
Specifically, 	the 	employer 	doubted 	the 	ap~ropriateness 	of
the 	Association's 	proposed 	unit 	since
	it
	included 	division

chairpersons
..
An
	informal
	confgrence
	was
	held
	on
	January 	29, 	1979.
	At
the
	informal,
	the
	PERS
	agent
	informed
	the
	parties 	that
	if
	the
issue
	of 	1nclus10n
	or
	exclusion
	of
	division
	chairpersons
	went
to
	hearing,
	the 	hearing
	officer
	would,
	pursuant.
to
	established
Board
	precedent 	regarding
	community colle<3:e
	cert.if'icated
	units,
rai:se	
the
	issue
	of··
the 	appropriateness 	of
	a
	full-time
	unit~
Since
	no
	agreement
	was
	reached,
	a
	representation
	hearin;
	was
scheduled 	for
	March
	19,
	1979.
	The
	employer
	requested
	and
	was
9rantea
	a
	c:ont.inuance,
	so
	the 	hearing
	commenced
	en
	April
	3 	and
waa
	concluded
	on
	April
	26, 	1979$
At
	the 	hearing, 	the
	employer
	made 	a
	motion
	to 	dismiss
subsequent 	to 	the
	Asscciation
1 a
	presentation
	regarding 	the 	unit
issue.
	The
	hearing
	officer
	acceptgd
	the
	motion 	under
advisement
	and
	deferred 	to
	this
	administrativ• determination.
ISSUES
l.	
Should 	the
	request 	for 	recognition
	filed
	by
	the
Association 	for
	a
.full-time 	certificated
	unit
	be
dismissed 	for
	petitioner's 	failure
	to
	establish
	why
	it
i5 	an
	appropriate 	unit?
2.	
If
	the
	petition 	is
	not 	dismissed,
	what
	is
	the
appropriate
	certificated 	unit
	in
	the 	Ca.brillo
Cornmt.2nity
	College
	District?
J. 	A:e
	oivision chairpersons 	supervisory 	employees 	within
the 	meaning
	of 	~ection
	3540el{m)
	of 	the 	Educational
Em?loyment 	Relations 	Act
	(hereafter
	EZRA)?

DISCUSSION
The
	District
	contends
	that
	the
	request 	for
	recognition
filed	
by	
the 	Assooiation
	should
	be
	dismissed 	because:
1.	
the
	petition
	does
	not
	reflect
	the
	largest
	group
	of
teaching
	employees, 
and/or
2.	
the 	Association 	did
	not
	defend
	any
	exclusions	
by
prcv,idin9
	a
	prepondei::ence
	of 	the
	ev
id.ence
	thereto.
For
	the 	reasons
	set
	out
	below,
	the
	employer's
	motion
	for
dismissal
	is
	hereby
	granted.
The
	Public
	Employment
	Relations
	Board
	{hereafter
	PERB}
	has
many
	decisions
	wh_ich	
have	
defined 	appropriate
	certificated
units
	in
	community
	colleges.
	The
	first
	of 	these 	cases
	was 	Los
:tics
	Community
	College
	District_
	(6(9/77)
	EERB
	Decision
	No.
	18
which
	defined 	the 	appropriate 	unit
	as
.••
	All
	certificated
	employees,
	including
	full-time
instructors,
	part-time 	instructors
	who
	have
	taught
	at
least
	the 	equivalent 	of 	three
	semest~rs
	of
	the
	last
six
	semesters
	inclusive
•••
In 	Shasta-Tehama-Trinity
	Joint
	Community
	College
	District
(9/22/77}
	EERB
	Decision
	No.
	31, 	the
	Board
	affirmed 	the 	hearing
officer's
	decision 	since
	it
	was
	substantially
	in
	accocd 	with
Board 	precedent 	established 	in 	tos
	Rios;
	also, 	hearing
	officer
decisions 	in
	San
	Joaquin 	Delta
	Community
	College
	District
{5/12/77)
	EERB
	Decis.ion No. 	HO-R-5 	and
	Riverside
	Community
follege 	District
	(5/9/78)
	PERB
	Decision
	No. 	HO-R-66
	have
adhered 	to 	this 	policy.
Subsequently, 	in 	Hartnell
	Cow.munity 	College
	District
(1/2/79)
	PE~E 	Decision 	No. 	Bl, 	the 	Board 	abolished 	the 	formula
for 	inclusion 	in 	the 	unit 	aqd 	the 	voter 	eligibility 	requirement
3

' 1
••
for 	part-tima
	faculty
	(their
	having
	taught
	three
	or
	more
	of 	the
last
	six
	semesters). 	by	
stating
Thus,
	the
	community
	of
	interest
	with
	full-time 	faculty
of
	part-time
	f.aculty
	who	
t:each	
less
	than 	t:.hr~e
	of
	the
last
	six
	samesters
	and
	those
	who
	teach·
th:ee
	or
	me:u::-e
of 	the
	last
	six
	semesters
	is 	identical.
	Accordingly,
there
	is
	no
	basis 	for
	excluding
	part-time 	faculty
	who
taach
	less
	than
	three 	of
	the
	last
	six
	semesters
	from
the 	negotiating
	unit.
	In
	fact,
	upon
	reflection
	such
	a
distinction
	is
	potentially
	disruptive
	to 	the
	very.
:stability•
and 	harmony
	in
	employer-employee
	relations
which
	the
	EEEA
	se@ks
	to
	promote
	through
	the
	collective.negotiations 	process.
	We
	therefore
	conclude
	that
	the
unit
	appropriate 	for
	negotiations
	includes
	all
	full-
and
	part-time 	faculty.
	To
	the
	extent
	that
	Los
	Rios
and
	its
	progeny
	are
	inconsistent
	with
	this
	decision,
they
	a.re
	expressly 	overruled
••
~
Finally,
	in
	Rio 	Hondo community
	College
	District
	(1/25/79)
FEns
	Decision
	No. 	87,
	the
	unit
	found
	to
	be
	appropriate
consisted 	cf
all
	c:ertificated
	employees
	oft.he
	District
	who
	are
resuiar
	full-time 	teachers,
	including 	those
	who
	also
teach
	summer
	school,
	and
	all
	teachers
	who
	teach
	summer
school 	only1
	except
	management,
	supervisory
	and
confidential
	employees
	shall
	not
	be
	included
	in 	the
unit.
Ba~ed
	on
	all
	of 	the
	above,
	it
	is
	obvious
	that
	in
	commur.ity
colleges
	the
	Board 	has 	founc
	a
	unit
	composed
	of
	both
	full-time
and
	part-time 	faculty, 	regardless 	of 	langth 	of
	service, 	to
	be 	a
. 	.
presumpti.vely 	appropriate 	unito
This 	does 	not
	mean
	that
	any
	unit
	which
	differs
	from 	a
presumptively 	appropriate· unit 	is 	inappropriate, 	since 	the
pr~~umption
	is 	rebuttable.
	See
	for
	example Foothill-DeAnza
Communi
tv 	Colleae
	District
	(3/l/77)
	EE.RE
	Decision 	No. 	lO 	and
1allbrook
	Union Hiah 	School
	Oistrict 	(12/4/78)
	PE.RB
	Decision
No. 	78. 	Eoweve=,
	it 	is 	essential 	that
	when 	a 	requested 	unit
oOe$ 	not 	conform 	to 	established 	Board 	policy, 	the 	pet.i tioner
4

. i 	., ~ .
must 	produce 	facts 	on 	tne 	record 	which 	woud 	enable 	the 	hearing
officer 	to 	find 	such 	a 	unit 	appropriate. 	Consequently, 	the
Association 	would 	appear 	to 	have 	the 	burden 	of 	showing 	with
sufficient 	evidence 	why 	a 	unit 	consistin9 	solely 	of 	ft1ll-time
employees 	is 	appropriate 	in 	order ·to overcome 	th~ 	Board's
established ·-presumption.
The 	only 	evidence 	elicited 	by 	the 	Association 	consisted 	of
the 	following:
1) 	There 	are 	approximately 170 part-time 	faculty;
2) 	Part-time 	faculty 	are 	paid 	by 	the 	unit 	(" .•. a 	teaching
unit 	being 	defined 	as 	one 	hour 	of 	lecture 	per 	week 	or
three 	hours 	of 	laboratory 	for 	two 	teaching 	uni~s,
also, 	they 	are 	paid 	by 	the 	course 	description 	that
appears 	in 	the 	college catalog 	determining 	tha 	number
,:
of 	teaching 	units 	that 	are 	involved.") 	See 	transcript
at 	p. 	275, 	lines 	4-8.
3) 	Part-time 	faculty 	receive 	pro 	rata 	health 	and 	welfare
benefits 	when 	employed 	for 	more 	than 	7 	l/2 	units 	over
a 	prescribed 	period 	of 	time. 	See 	transcript 	at 	page
275, 	lines 	10-12.
4) 	Part-time 	faculty 	do 	not 	vote 	for 	the 	selection 	of
faculty 	senators; 	and,
5) 	Part-time 	faculty 	do 	not 	accumulate 	sick 	leave 	and
other 	leaves.
while 	these 	facts 	are 	important, 	they 	offer 	no 	comparison
5

tc
	full-time
	employees
	and/or
	how
	they
	differ.
	The~e 	was 	no
evidence
	presented	
by	
the 	Association
	regarding 	the
	community
of
	interest
	of
	a
	full-time
	un.it
	and
	how
	it
	might
	differ
	from
that
	of
	part-time 	faculty,
	i.e~,
	qualifications,
	job
	duties
	and
re~ponsioilitiaa,
	hiring
	and
	evaluation
	procedure.a,
	benefits
~nd	
pri~ileges, 	participation
	on
	college 	committees,
	working
condition~,
	e~c~
Instead,
	the
	Association's 	position
	was
	th·at
	the
	PE;IB
hearing
	officer
	should
	show
	why
	a
	full-time 	unit
	was
	not
app?:opriate
	or.,
	gather
	whate,;er
	evidence
	t:he 	PERE
	agent 	thought
might
	be 	appl:'opi:iate.
	Thi:s
	position·,
	however,
	is
	misplacede
The 	Board 	has
	stated	
that	
the
	11
••••
burden	
of	
pro...,.ing
	the
inar;,proptiateness 	of
	a
	comprehensive,
	teache::s'
	unit
....
&o	
is
	on
those
	that
	oppose
	it;
	and,
	that
	it
	"
•••
would 	be
	obligated 	to
combine
	different
	groups
	of
	instructional
	personnel 	absent
	a
tinaing
	that
	such
	community
	of
	interest
	does
	not
	exist.~
Feralta
	Community
College
	District
	(11/17/78)
	PERE
	Decision
	No.
77. 
The 	Board 	has 	found
	appropriate 	units
	which
	differ
	from
those
	it
	has
	stated
	to
	be
	presumptively 	appropriate, 	but
this
	ea~e
	is
	distinguished
	because 	the 	Association 	did 	not
	make
a
	reeord
	upon 	which
	the 	bearing
	office
	could
	rely
	to
	make 	a
1
l 	St:te
	for
	example
H	
Foothi 11-0eAnza
	Com.mu•ni ty
	College
District
	(3/1/77)
	EERB
	Decision
	Ne.
	10; 	Sacramento 	Citv
Unified 	School
	District
	(9/20/77)
	EERB
	Decision
	No~
	30;
Shasta 	Onion 	Eich 	Schcol District
	(10/25/77}
	EERB
	DecisionNo. 	34;
	Graenfield 	anion 	School
	District
	(10/25/77}
	EERB
Deoi~ion 	No. 	35; 	and 	Fallcrook 	Union 	Sigh 	School
	District(12/4/78) 	PERS 	Oecision 	No. 	78.
6

I f
unit
	detemination.
	While
	the
	hearing
	officer
	die
	gather
	some
evidence 	re9arding
	part-time 	faculty
	contrary 	to
	the
	wishe.s
	of
the
	District,
	the
	entire
	representation
	hearing
	process
	is
thwarted
	if
	PERS
	agents
	must
	construct
	and
	present
	a
	party's
ca.ae.
Based 	on
	all
	of 	the
	above,
	the
	employer's
	motion
	for
dismissal 	is
	hereby
	granted
	and
	the 	Association•s 	request
	~or
recognition
	is
	dismissed.
	However,
	this
	dismissal
	would 	be
with 	leave
	to 	the
	Association
	and
	the
	District
	to
	come
	to
	an
agre~ment
	upon 	a	
certificated
	unit
	and
	simultaneously
	file
	a
petition
	for
	unit 	modification 	pursuant 	to
	PERB
	Regulation
3326l(a)
(2)
	to 	decide 	the
	issue
	of
	division 	chairpersons.
Another
	option
	would 	be
	for 	the 	Association 	to
	file
	a 	new
request
	for
	recognition 	for
	all
	f~ll-time
	and
	part-time
instructors.
	Additionally, 	the 	record
	that
	was 	made
	regarding
division
	chairpersons 	at 	the 	hearing
	may
	be
	utilized	
by	
a
hearing
	officer
	to 	decide
	their 	status
	ih 	order 	to 	avoia
another 	hearing
	if
	either
	option
	is
	selected	
by	
the
	parties.
CONCLUSION
A
determination
	having 	been 	made
	that
	the 	employer's
	motion
for 	dismissal
	has 	been
	granted
	and
	therefore 	the 	reque3t 	for
recognition 	filed	
by 	the 	Association
	has 	been
	dismissed, 	the
i5sue 	regaroing 	the
	status
	of 	civision 	chairpersons
	is
	not 	.
decided 	nor 	addressed 	as
	part 	of 	this 	decision.
	A
decision
cegarding 	their 	status 	notwithstanding 	the 	granting 	of 	the
motion 	and 	oisrnissal 	of 	the 	request 	for 	recognition 	would 	be
soley 	an 	advisory 	opinion. 	The 	Board 	has 	consistently
7

deter:mined.
that
	the
	agency
	will
	not
	issue·advisory decisions
	on
•
matters
	not
	properly
	in 	dispute
	before
	it.
An
	appeal 	to
	this
	administ:ati~e 	decision
	may 	be 	made
	to
the
	PERB
	its@lf 	within
	10
	c~lendar
	days
	of
	service	
by	
filing
	a
statement
	of
	the
	facts
	u-pon
	which
	the
	ap~eal
	is
	based
	with
	the
~¼ecutive
	Assistant
	to 	the
	Board
	at
	923
	12th
	Street,
	Suite
	201,
Sec:amento,
	CA
	95814. 	Copies
	of
	~ny
	appeal
	must 	be
concur,~ntly
	served
	upon
	all
	parties
	and
	the
	San
	Francisco
Regional
	Office.
	Proof 	of
	service
	of
	the 	appeal
	must
	be
	filed
with 	the
	E~ecutive
	Assistanta
~ovambor
	lO,
	1979
JWT: ed
James
	w.
	Tamm
Regional
	Director
a