Petaluma City Elementary and High School Districts (PERB A131E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
PETALUMA 	CITY ELEMENTARY AND
HIGH SCHOOL 	DISTRICTS,
Employer,
and
ASSOCIATION 	OF 	PETALUMA TEACHERS,
CTA/NEA,
Employee Organization,
APPELLANT,
and
PETALUMA 	FEDERATION 	OF 	TEACHERS,
LOCAL 	1881, 	CFT/AFT/AFL-CIO,
Employee 	Organization.
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____________________ )
Case No. 	SF-D-92
(R-31A)
PERB 	Order 	No. 	Ad-131
Administrative 	Appeal
June 	30, 	1982
Appearances: 	Kirsten 	L. 	Zerger, 	Attorney 	for 	Association 	of
Petaluma Teachers, 	CTA/NEA; 	Stewart 	Weinberg, 	Attorney
(Van Bourg, 	Allen, 	Weinberg 	and 	Roger) 	for 	Petaluma Federation
of 	Teachers, 	Local 	1818, 	CFT/AFT/AFL-CIO.
Before Tovar, 	Morgenstern 	and 	Jaeg~r, 	Members.
DECISION AND 	ORDER
The Association 	of Petaluma Teachers, 	CTA/NEA 	(APT) 	appeals
the 	dismissal 	of 	its 	petition 	for 	decertification 	by 	an 	acting
regional 	director 	of 	the 	Public Employment 	Relations Board
(PERB 	or 	Board). 	APT 	contests 	the 	acting 	regional 	director's
determination 	that 	APT 	failed 	to 	submit 	sufficient 	proof 	of
support 	for 	its 	petition 	as 	required 	by 	sections 	33240 	and
32700 	of 	PERB's 	rules 	and 	regulations.l
lRegulations 	of 	the 	PERB 	are 	codified 	at 	California

(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
	and
	the 	date
	on
which 	each
	individual's 	signature
	was
obtained.
	A
signature
	without 	evidence
	that
it
	was
	obtained 	within
	one
	calendar 	year
prior 	to 	the
	filing
	of
	the
	petitionrequiring
	employee
	support
	shall
	be
	invalidfor 	the 	purpose 	of
	calculating
	proof 	of
support.
	Any
	signature 	meeting 	the
requirements 	of
	this 	section 	shall
	be
considered 	valid
	even 	though 	the 	signatorhas 	executed 	authorizations 	for
	more 	than
one 	employee
	organization.
The
	parties
	are
	in
	agreement
	on
	the
	facts
	as
	found
	by
	the
acting
	regional
	director.
	APT
	filed
	its
	petition
	for
decertification
	of
	the
	existing
	exclusive
	representative
	on
March
	29,
	1982
•.
	Accompanying
	the
	petition
	were 	111
authorization
	cards
	signed
	by 	employee 	members
	of
	the
	unit,
	as
proof
	that 	at 	least
	101 	(30
	percent) 	of
	the
	336
	unit
	members
Administrative
	Code,
	title
	8,
	section
	31000
	et
	seq. 	Section
33240
	provides
	in
	pertinent 	part:
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	*	
~	
• 	•
2

supported
	decertification.
	Ten
	of
	these 	cards
	failed
	to
indicate
	in
	what
	year 	they
	were
	signed.
	Two
	other
	cards
	showed
signature
	dates
	which
	indicated
	that
	the
	signatures
	had
	been
obtained
	early
	in
	1981,
	more
	than
	one
	year
	prior
	to 	the
	filing
of
	the
	petition.
	The
	other
	99
	cards
	were
	validly
	dated.
The
	time
	period
	for
	filing
	APT's
	decertification
	petition
closed
	on
	April
	3, 	1982.
	On
	April
	5,
	APT
	was
	notified
	by
	a
PERB
	agent
	that
	only
	99
	cards
	were
	validly
	dated
	and
	that
	this
was 	two
	short
	of
	the 	required
	showing.
	In 	response
	APT
	offered
to 	submit
	declarations
	of
	the
	employees
	whose
	signatures
appeared
	on
	the
	12
	invalidly
	dated 	cards
	which 	would
	assert
that
	the 	cards
	were
	in
	fact
	signed
	within
	one
	year 	of
	the
filing
	of
	the
	petition.
	However, 	a
	PERB
	agent
	notified
	APT
that
	such
	declarations
	would
	not
	be
	accepted,
	and 	on
	April
	8,
1982
	the 	acting 	regional
	director
	dismissed 	the
	petition
	on
	the
grounds
	that
	the
	petition
	lacked
	the 	required 	30-percent 	proof
of 	·support.
APT's
	appeal
	of 	the 	dismissal
	is
	made 	on
	the
	ground
	that
the
	PERB
	agent's 	refusal 	to 	accept
	and
	review
	the 	offered
declarations 	described
	above
	constitutes
	a
	failure
	to
adequately 	investigate
	the
	petition
	as
	required
	by Government
Code
	section
	3544.7 	and 	an
	abuse 	of 	the 	agency's
	discretion.
We
	find,
	however,
	that 	the
	PERB
	agent's 	investigation
	was
neither
	inadequate
	nor
	did
	it
	evidence
	an 	abuse 	of
	discretion.
3

Pursuant
	to
	section
	32700
	of
PERB
	Regulations, 	cards
purporting
	to
	demonstrate 	the
	30-percent 	proof
	of 	support
required	
by	
section
	33240,
	supra,
	must
	be
	signed
	and
	dated,
	and
"[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
	proof
	of
	support."
	Twelve
	of
	the 	cards 	submitted
by
	APT
	in 	support 	of
	its
	petition
	were
	without 	evidence
	that
they
	were
	obtained 	within
	one
	year 	of
	the
	filing
	of 	the
petition.
	The
	valid
	cards
	remaining
	did 	not
	show
	the 	support
of
	30
	percent
	of
	the
	unit
	members.
Section
	33250(b)
2	
of
	PERB
	Regulations
	makes
	clear 	that
petitions
	must
	be
	received
	by 	PERB
	prior
	to 	the 	close
	of
	the
window
	period,
	which
	in
	this
	instance
	occurred
	on
April
	3,
	1982.
	Since 	"evidence
	that
	[cards
	were]
	obtained
within
	one
	year
	prior
	to 	the
	filing
	of 	the
	petition
	.
	11
	is
	a
required 	part
	of
	the
	petition
	(section
	32700,
	supra),
	APT's
2section
	33250(b)
	provides:
The
	petition 	shall
	be
	dismissed
	whenever
either
	of 	the 	conditions 	of
	Government Code
section
	3544.?(b)
	exist.
	A
petition 	filedless
	than
	120
	days, 	but
	more
	than
	90
	days,
prior 	to 	the 	expiration 	date 	of
	a
	lawful
written
	agreement
	negotiated
	by
	the 	publicschool
	employer 	and
	another
	employee
organization
	must 	be
	actually 	received 	inthe
	manner
	set 	out 	in Section
	32135
	during
the
	"window
	period"
	as
	defined 	by 	Section
3 30 2
0.
4

offer 	to 	submit 	such 	evidence 	after 	April 	3, 	1982 	constitutes
an 	attempt 	to 	submit 	essential 	petition 	material 	after 	the
close 	of 	the 	filing 	period. 	Thus, 	we 	find 	that 	the 	acting
regional 	director 	acted 	properly 	in 	refusing 	to 	accept 	such
evidence 	in 	this 	case.
We 	note 	that 	the 	policy 	of 	the National 	Labor 	Relations
Board 	appears 	to 	be 	the 	same. 	Thus, 	in A. 	Werman 	& Sons, 	Inc.
(1955), 	114 	NLRB 	629 	[37 	LRRM 1021], 	that 	board 	denied 	an
election 	petition 	where 	the 	proof-of-support 	cards 	failed 	to
meet 	the 	requirements 	of 	the 	board's 	rule 	that 	such 	cards 	must
be 	dated 	(to 	establish 	current 	support). 	The 	board 	noted 	that
a 	petitioner's 	showing 	of 	interest 	is 	an 	administrative 	matter
not 	litigable 	by 	the 	parties, 	and 	that 	evidence 	of 	support
which 	fails 	to 	meet 	the 	requirements 	of 	the 	board 	is
insufficient.
Regulations 	of 	the PERB 	provide 	that 	it 	is 	the
responsibility 	of 	the 	petitioner 	to 	present 	to PERB 	evidence
showing 	the 	necessary proof 	of 	support. 	We 	find 	that 	the
burden 	placed 	on 	petitioners 	to 	assure 	the 	accuracy 	of 	their
supporting materials 	is 	not 	an 	unreasonable 	one. 	Especially
where, 	as 	here, 	the 	underlying matter 	is 	a 	nonlitigable
administrative 	determination, 	a 	requirement 	of 	strict
compliance 	with 	procedural 	rules 	is 	appropriate. 	In 	this
5

instance 	we 	are 	administratively 	satisfied 	that 	the 	showing 	of
support 	submitted 	by APT 	is 	insufficient.
Appeal 	DENIED.
/\
Irene 	Tover, 	Member
The 	dissent 	of 	Marty Morgenstern, 	member, 	begins 	on 	page 	7.
6

Marty Morgenstern,
	Member,
	dissenting:
The
	draft
	decision
	rests
	on
	a
	questionable 	syllogism
that
	goes
	as
	follows:
PERB
	rules 	require
	all
	petitions
	be
filed
	only 	during
	the
	window
	period.
All
	such
	petitions
	must 	be
	properlydated
	to
	indicate 	timeliness.
Therefore,
	an
	apparent
	technical
	error
in
	the
	dating 	of
	a
	petition
	cannot
	be
investigated
	after
	the
	~indow
	closes.
The
	fact 	that
	proof
	of
	support
	cannot
	be
	submitted
	after
the
	window
	period
	is
	not
	an
	issue 	in
	this
	case.
	Likewise,
the 	rule 	that 	petitions
	must 	be
	signed
	within
	12
	months
	of
filing 	is
	not questioned,
	nor
	is
	the 	Board's 	requirement
that
	petitioners
	bear 	the
	burden
	of
	responsibility
	for 	the
accuracy
	of
	their
	materials.
	No
	extension 	of
	time
	to 	gather
support 	or
	submit
	petitions
	is
	being 	sought.
	No
	waiver
	of
the
	requirements
	that
	the 	employee's
	name,
	signature,
	title,
class
	and
	date
	he
	or
	she 	signed 	the
	petition
	is
	being 	sought.
Twelve
	cards 	are 	admittedly
	flawed.
	Ten
	lack
	any
indication of 	the 	year 	signed,
	two
	others
	appear 	to
	be
	too
old.
	The
	petitioner
	argues
	that
	the ten 	inadvertently
omitted 	the 	year
	and
	in 	the 	case 	of 	the
	two
	stale
	cards,
because
	it
	was
	early 	in 	the 	year, 	the 	signers 	accidentally
wrote
	"81"
	instead of
	"82".
The
	Board's 	rules
	do
	not
	specifically 	preclude
	an
investigation of 	these 	matters, 	nor 	would 	an
	investigation
undermine 	the 	rule 	burdening
	a
	petitioner 	with 	the
7

responsibility
	to
	furnish 	accurate 	supporting
	documents.
	An
inquiry
	here
	would
	not
	lift
	or
	significantly 	lighten
	the
load;
	it
	would
	merely
	indicate
	that
	the
	Board
	will
	not
	be
unreasonable
	or
	inflexible
	in
	determining
	if
	the
	burden
	was
met. 	Indeed,
	the
	fact 	that 	this
	is
	an
	administrative
	and
thus
	unappealable
	decision
	argues
	more
	for
	such 	an
	approach
than
	it
	does
	for
	the
	very
	strict
	application
	the
	majority
favors.
If
	this
	is
	indeed
	a
	matter
	of
	simple
	human
	error,
inadvertent,
	inconsequential
	and
	easily
	determined, 	then
	it
should 	not
	be
	allowed
	to 	deprive 	the
	employees
	of
	a
	basic
democratic
	right,
	a
	right 	that 	lies 	at
	the
	very 	foundation
of
	the
	law
	this
	Board
	administers
	and
	the 	society
	that
caused 	the
	law
	to 	be.
The
	regional
	director
	should
	be
	ordered
	to
	investigate
or
	hold 	hearings
	on
	whether
	an
	appropriate
	number
	of 	cards
were
	timely 	signed
	and
	are 	otherwise
	in
	order
	and
	to
	make
a
	decision
	on
	the
	petitioned 	election
	on
	the 	basis 	of 	the
fi~ding
s . 	_
8