Peralta Community College District (PERB A164E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PERALTA FEDERATION OF TEACHERS, 	LOCAL
1603, CFT/AFT, AFL-CIO,
Exclusive 	Representative
and
EDITH M. 	AUSTIN 	SKILLS CENTER/CTA/NEA,
Employee 	Organization,
and
PERALTA COMMUNITY 	COLLEGE 	DISTRICT,
Employer.
Case Nos. 	SF-UM-385
and
SF-D-156 	(R-501)
Administrative 	Appeal
PERB Order No. Ad." 164
June 18, 	1987
Appearances; 	Law Offices 	of Robert 	J. 	Bezemek by
Katherine Riggs 	for Peralta Federation of Teachers, 	Local 	1603,
CFT/AFT, 	AFL-CIO; A. 	Eugene Huguenin, 	Jr., 	for Edith M. Austin
Skills Center, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Porter and Craib, Members.
DECISION
CRAIB, 	Member: 	This 	case 	is 	before the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	appeal 	by the Peralta
Federation of Teachers, 	Local 1603, 	CFT/AFT, AFL-CIO 	(PFT) 	from
an 	administrative decision of 	the 	San Francisco 	Regional 	Office
of 	PERB 	(Regional Office) 	ordering 	a 	self-determination
election 	as 	a means 	of 	resolving 	a 	conflict 	posed 	by the 	filing
of 	a 	unit modification petition 	and 	a 	decertification petition
involving 	the 	same 	bargaining unit. 	PFT 	represents 	two
existing 	certificated 	units, 	the 	regular 	unit 	and 	the East 	Bay
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Skills 	Center 	unit. 	The 	regular 	unit was 	certified 	by the
Board 	in 	Peralta 	Community College District 	(1978) 	PERB
Decision No. 	771l (hereafter Peralta No. 	77).
On March 27, 	1986, 	PFT filed 	a unit modification petition
seeking 	to consolidate the 	two 	units 	(as well 	as 	a 	third group
of Accelerated 	Instructional 	Program teachers). 	An 	amended
petition was 	filed on April 	11. 	On March 31, 	1986, 	the
Edith M. 	Austin Skills 	Center/CTA/NEA 	(CTA) 	filed 	a
decertification petition 	seeking 	to 	represent 	the 	Skills 	Center
teachers. 	The 	investigation of 	the decertification petition
raised 	issues 	which were 	deemed 	appropriate 	for 	determination
by an 	administrative 	law judge 	(ALJ). 	The unit modification
petition was 	held 	in 	abeyance. 	Before 	a 	determination was made
by the ALJ, 	CTA filed 	a 	second decertification petition 	on
July 3, 	1986, 	which was 	timely filed 	and demonstrated
1The 	Board, 	determined 	that 	section 3545(b)(l) 	of 	the
Educational 	Employment Relations Act 	(EERA) 	(EERA 	is 	codified
at Government Code section 3540, 	et 	seq.) 	created a 	"rebuttable
presumption" 	in 	favor of 	the 	inclusion of 	all 	classroom
teachers 	in one unit. 	It 	then found the presumption 	to 	have
been 	rebutted, 	since the Skills Center 	teachers 	lacked 	a
community of 	interest with 	the 	other 	teachers.
Section 3545(b)(l) 	states:
In all cases:
A 	negotiating 	unit 	that 	includes 	classroom
teachers 	shall 	not 	be 	appropriate unless 	it
at 	least 	includes 	all 	of 	the classroom
teachers 	employed 	by 	the 	public 	school
employer, 	except management employees,
supervisory employees, 	and confidential
employees.
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sufficient 	proof 	of 	support. 	The 	first 	decertification
petition was 	then dismissed 	as moot.
Concluding 	that 	giving 	either 	the 	unit 	modification 	or 	the
decertification 	petition 	precedence 	would 	not 	adequately
address 	the 	rights 	of 	all 	parties, 	the Regional Office ordered
a 	self-determination 	election 	in the 	Skills 	Center 	unit. 	The
election was 	conducted on April 	3, 	1987, 	and the ballots were
impounded. 	The ballot 	read 	as 	follows:
(1) 	Do you desire to be 	included with 	all
certificated 	employees 	in 	a
District-wide 	bargaining 	unit
represented 	by 	the 	Peralta 	Federation 	of
Teachers, Local 1603, CFT/AFT, AFL-CIO?
(Yes/No)
(2) 	In the event 	that 	a majority of 	the
eligible voters 	do 	not wish 	to 	be
included 	in 	the District-wide 	bargaining
unit, 	do you wish to be 	represented 	in
the East 	Bay Skills 	Center 	unit 	by:
(a) PFT
(b) CTA
(c) 	No 	representative
The 	administrative decision below was 	based 	on 	the 	premise
that 	either 	a 	consolidated unit 	or 	the 	continuation of 	the
separate 	units would 	be 	appropriate under 	the 	circumstances 	of
this 	case. 	This was based on two conclusions: 	1) 	the unit
modification petition 	states 	a 	prima 	facie 	case 	of 	changed
circumstances
2
sufficient 	to warrant 	reversal 	of 	the 	Board's
2The Regional Office, 	in effect, 	made a 	finding that 	the
petition 	is meritorious 	based 	on 	the 	failure of 	the 	opposing
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findings in Peralta No. 	77, 	and 2) 	PERB Regulation 327703
requires 	only 	that 	a 	decertification 	petition 	seek 	to 	decertify
an 	"established" 	unit, 	i.e., 	such a petition does 	not 	require
any 	inquiry 	into 	the 	continued 	appropriateness 	of 	the
established 	unit.
The 	Regional 	Office's 	attempt 	to 	effectively 	combine 	the
processing 	of 	the 	two 	petitions 	through 	a 	self-determination
election was motivated by the concern that 	either petition, 	if
viewed 	in 	isolation, 	was 	sufficient 	to warrant 	its 	further
processing, 	while 	allowing 	either 	petition 	to 	take 	precedence
could 	(depending 	on 	the 	outcome 	of 	the 	hearing 	or 	election)
render 	the 	other 	invalid.
On appeal, 	PFT contends 	that 	it was 	improper 	to hold 	a
self-determination election. 	Instead, 	PFT argues 	that 	the
Board must 	determine 	as 	a 	threshold matter 	the 	continued
appropriateness of 	separate units of 	teachers. 	Thus, 	PFT
parties 	to 	contest 	the 	allegations 	of 	changed 	circumstances.
Presumably, 	if 	the unit modification petition went 	forward, 	it
would 	be 	the Regional Office's 	position 	that 	no 	facts would 	be
in dispute. 	Thus, 	no hearing would be necessary.
3PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	part 	III, 	section 31001 et seq.
Regulation 32770 	states, 	in pertinent 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 	(emphasis 	added).
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claims 	that 	the unit 	modification 	petition must 	be 	processed
first. 	If 	the unit modification petition 	is granted, 	PFT
argues, 	then 	the decertification petition would 	no 	longer 	be
filed 	for 	an 	"established" 	unit 	and 	should 	therefore 	be
dismissed. 	Implicit 	in this 	argument 	is 	that 	the 	"Peralta
presumption" 	(as established in Peralta No. 	77) 	does not
logically 	allow 	for 	circumstances 	where 	either 	the 	consolidated
unit 	or 	separate unit 	configuration could 	be 	"appropriate."
PFT 	also 	claims 	that 	the 	administrative 	decision 	ignored 	the
Accelerated 	Instructional 	Program teachers 	sought 	to 	be 	added
to 	the 	regular unit.
DISCUSSION
While we 	believe 	it may be proper 	for 	employees 	to 	choose
between 	two 	otherwise 	appropriate 	unit 	configurations,4 that
is 	not the 	situation presented 	in this 	case. 	We do 	not 	agree
with 	the 	finding of 	the Regional Office 	that 	the 	allegations 	of
changed 	circumstances 	in 	the unit 	modification petition were
undisputed. 	In both 	its 	original 	response 	to 	the petition on
April 23, 	1986, 	and its October 	15, 	1986 	response to the
4This 	is 	in 	accord with precedent 	in 	the private 	sector.
See, 	e.g., 	NLRB v. Underwood Machinery Co. 	(1st Cir. 	1949) 	179
F.2d 	118 	[25 	LRRM 2195] 	(National 	Labor 	Relations 	Board 	(NLRB)
did 	not 	improperly delegate unit 	determination to 	a 	group 	of
employees where 	either 	of 	two 	unit 	configurations were 	found 	to
be 	otherwise 	appropriate 	and 	employee 	preference was 	the 	factor
used to 	"tip the scales"); 	PSA v. 	NLRB 	(9th Cir. 	1978) 	587 F.2d
1032 	[100 	LRRM 2566] 	(NLRB 	abused 	its 	discretion by 	allowing
employees 	to 	vote 	on whether 	to 	join 	an existing 	unit where
consideration of 	other 	criteria 	reflected 	that 	such 	a 	a
configuration would be 	inappropriate).
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Regional 	Office's 	September 	18, 	1986 	solicitation 	of 	argument,
CTA disputes 	the 	allegations 	of 	changed circumstances, 	albeit,
in conclusory fashion. 	In 	its 	response 	to 	PFT's 	exceptions,
CTA claims 	that 	it 	had no 	effective 	opportunity 	to 	respond 	to
the unit modification petition's 	factual 	allegations 	(i.e., 	no
hearing) 	and, 	while not 	objecting 	to 	the 	self-determination
election, 	CTA expressly 	reserves 	the 	right 	to 	dispute 	the
allegations 	of 	changed circumstances. 	The 	Peralta 	Community
College District's 	(District) 	filings5 have 	focused on policy
reasons 	for 	processing 	the decertification petition 	first 	and
claimed 	that 	the 	continued 	appropriateness 	of 	a 	separate 	Skills
Center unit was 	irrelevant. 	Given these 	responses, 	we 	find
that 	the 	record 	cannot 	be 	fairly 	read 	to 	reflect 	that 	the
allegations 	of 	changed 	circumstances 	are 	undisputed.
Having 	concluded 	that 	the 	allegations 	of 	changed
circumstances 	remain just 	that, 	allegations, 	we find that 	the
inclusion of 	question no. 	1 on the ballot 	impermissibly
delegated 	to 	employees 	the determination 	of 	the 	appropriate
unit configuration, 	a matter, 	when in dispute, 	to be determined
exclusively by 	this 	agency.66 While 	the 	Board may 	allow 	for
5 We 	consider 	only 	the 	District's 	filings 	submitted 	prior
to 	PFT's 	appeal 	of 	the administrative decision. 	The District's
response 	to 	the 	appeal was 	not 	timely filed 	and 	is, 	therefore,
not 	considered 	here. 	The District 	requests 	that 	its 	filing 	be
accepted, 	but 	it 	puts 	forth no 	grounds 	for 	excusing 	the
untimely 	filing.
6Section 	3541.3 	states, 	in pertinent 	part:
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stipulated unit configurations, 	it must make a 	formal
determination 	as 	to 	a proposed unit 	(or modification 	thereof)
where 	the 	appropriateness 	of 	the unit 	is 	in dispute.
Having 	determined 	that 	the 	competing 	claims 	represented 	by
the 	unit 	modification 	and 	decertification 	petitions 	cannot 	be
resolved 	through 	a 	self-determination election 	such 	as 	that
devised 	by the Regional 	Office, 	we 	now turn 	to 	the 	critical
issue 	in 	this 	case 	— 	which 	petition 	should 	take 	precedence?
The merits 	of 	the unit modification petition have yet 	to 	be
properly determined. 	Absent 	such 	a 	determination by this
agency, 	the present 	unit 	configuration 	is 	presumptively
appropriate. 	Thus, 	the decertification petition was 	properly
filed 	in 	an 	"established" 	unit 	(as 	determined 	in Peralta 	No.
777 ). 	Therefore, 	we now focus upon the policy considerations
implicated 	in 	giving 	priority 	to 	either 	the 	decertification 	or
unit 	modification 	petition.
The 	Board 	shall 	have 	all 	of 	the 	following
powers 	and duties:
(a) 	To determine 	in disputed cases, 	or
otherwise approve, 	appropriate units.
7 We 	do 	not 	address 	the 	propriety of 	the 	Board's 	decision
in Peralta No. 	77. 	It 	is 	relevant here only insofar 	as 	it
represents 	a 	prior 	adjudication which 	established 	the 	existing
unit 	configurations. 	Our decision today does 	not 	require us 	to
necessarily 	agree 	or 	disagree with 	the 	Board's 	approach 	in
Peralta No. 	77. 	Should we differ with the Board's 	prior
interpretation of 	section 3545(b)(l), 	we shall 	reach that 	issue
in 	another case when the matter 	is 	squarely before us.
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We 	conclude 	that 	a 	decertification petition which 	is
properly 	filed 	in 	an 	established 	unit 	and 	contains 	the
requisite 	proof 	of 	support 	should 	be 	given priority over 	a 	unit
modification petition, 	so 	long 	as 	no 	formal determination on
the merits 	of 	the unit modification petition has 	been made 	at
the 	time 	the decertification petition 	is 	filed. 	This 	approach
has 	precedent 	in the private 	sector. 	NLRB Rules 	and
Regulations, 	at 29 CFR, 	section 102.60(b) 	states:
A petition 	for 	clarification of 	an 	existing
bargaining unit, 	or 	a petition for 	amendment
of certification, 	in the absence of 	a
question concerning 	representation, 	may be
filed 	by 	a 	labor 	organization or 	by an
employer. 	. 	. (emphasis added).
While 	a 	balance must 	be 	struck between 	issues 	of 	unit
clarification 	and 	questions 	concerning 	representation,
preservation of 	the 	integrity of 	the 	statutory 	scheme 	of 	the
EERA 	can 	best 	be 	achieved 	by 	recognizing 	the paramount 	right 	of
public 	school 	employees 	to 	select 	an exclusive 	representative
of 	their 	own choice. 	The 	free choice of 	an exclusive
representative is 	a cornerstone of 	the EERA8 , 	as 	it 	is 	in all
8The EERA begins 	by stating, 	at 	section 3540:
It 	is 	the purpose of 	this 	chapter 	to promote
the 	improvement 	of 	personnel management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in the 	State of
California 	by providing 	a 	uniform basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their 	own
choice, . . .
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analogous 	collective bargaining 	schemes. 	Not only 	is 	free
choice 	crucial 	to 	protecting 	the 	individual 	rights 	bestowed 	by
the 	statute, 	but 	it 	is 	also critical 	to 	stable and efficient
labor 	relations. 	For collective bargaining 	to work, 	an
exclusive 	representative 	must 	fairly 	and 	effectively 	represent
the 	interests 	of 	the members 	of 	the bargaining unit. 	The best
guarantee of 	such 	a 	result 	is 	the 	free 	and democratic 	selection
of 	such 	representatives by unit members. 	Further, 	giving
precedence 	to 	a unit modification petition when 	a 	valid
decertification petition 	has 	been 	filed 	carries 	with 	it 	the
potential 	for 	abuse. 	An 	incumbent union, 	when threatened by a
decertification effort, 	need only file 	a unit modification
petition 	that would 	alter 	the unit 	configuration 	so 	as 	to
prevent 	the 	decertification 	petition 	from being 	filed 	in 	an
g
"established" 	unit. 	This would preclude 	a decertification
election 	if 	the 	petition was 	eventually granted, 	and would
unduly delay 	such 	an 	election even 	if 	the 	unit 	modification
petition was 	denied. 	Giving 	precedence 	to 	a decertification
petition, 	on the other hand, 	does not hold the 	same potential
for 	abuse. 	A decertification petition 	requires 	proof 	of
9CTA 	claims 	that 	this 	is 	exactly what 	transpired 	in 	the
instant 	case. 	As 	this 	reflects 	a 	factual 	dispute upon which
there has 	been no hearing, 	we have no 	basis 	upon which to
decide the merits of 	this 	allegation, 	and we, 	of course,
decline 	to do 	so. 	Nevertheless, 	the potential 	for 	such abuse
is 	a 	relevant consideration in deciding, 	as 	a general matter,
which 	type 	of 	petition 	should 	take 	precedence.
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employee 	support 	before 	it may be 	processed.10	10 Proof 	of
employee 	support 	acts 	as 	an 	inherent 	check upon 	the 	filing 	of
frivolous petitions.
There 	is 	the 	remaining 	question of whether we must 	order 	a
new election or 	can 	rely upon the 	results 	of question no. 	2 	on
the ballot 	to determine 	the merits 	of 	the decertification
petition. 	While the presence of 	question no. 	2 	surely affected
the employees' 	response to question no. 	1 	(for their views on
decertification would 	logically 	control 	their 	choice 	of 	unit
configurations), 	we 	find no 	reason to believe that 	the 	inverse
is 	true. 	Question no. 	2 was 	carefully phrased to make 	it clear
that 	the 	choice 	of 	representatives was 	based on 	the 	assumption
that 	the 	Skills 	Center would 	remain 	as 	a 	separate unit.
Therefore, 	the 	issue voted on by the employees was 	identical 	to
that 	which would 	have 	been 	presented 	by 	a 	decertification
election 	alone. 	Under these circumstances, 	we 	find no 	reason
to 	conclude 	that 	the 	employees were misled or 	otherwise
10Regulation 32770 	states, 	in pertinent 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.
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affected 	by the 	appearance 	on 	the 	ballot 	of 	the unit
configuration question (question no. 	1 ) .
Lastly, 	we 	agree with PFT 	that 	the 	administrative decision
fails 	to 	adequately determine 	the 	status 	of 	the Accelerated
Instructional 	Program teachers. 	While 	the 	administrative
decision notes 	that 	there 	is 	no 	official 	record of 	a 	unit 	of
Accelerated 	Instructional 	Program 	instructors, 	it 	acknowledges
that 	PFT 	amended 	its 	petition 	to 	alternatively 	seek
consolidation 	of 	that 	unit with 	the 	larger 	unit 	or 	simply 	the
addition 	of 	the 	relevant 	classifications 	to 	the 	larger 	unit.
There 	is 	no 	further mention of 	these employees 	in the
administrative decision. 	As 	the 	record 	is 	insufficient 	to
allow us 	to make 	any determination with 	regard 	to 	these
employees, 	we 	remand this 	issue to 	the Regional Office. 	We
note 	that 	there 	is 	no 	conflict between this 	portion of 	the unit
modification 	petition 	and 	the 	decertification 	petition; 	thus,
this 	aspect 	of 	the 	petition need not 	be 	held 	in 	abeyance 	should
PFT desire 	to 	go 	forward on 	that 	limited basis.
ORDER
The 	Public 	Employment 	Relations 	Board 	hereby ORDERS 	that
the 	decertification 	petition 	filed 	by 	the 	Edith M. 	Austin
Skills Center, 	CTA/NEA in Case No. 	SF-D-156 	(R-501) 	be
processed 	forthwith 	and 	that 	the 	responses 	to 	question no. 	2 	on
the 	ballots 	cast 	in 	the 	self-determination election of
April 	3, 	1987 	be 	counted 	and used 	to 	determine whether 	the
petition 	is 	granted or denied. 	Responses 	to question no. 	1
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shall 	not 	be 	counted. 	The unit modification petition 	filed 	by
the Peralta Federation of Teachers, 	Local 	1603, 	CFT/AFT,
AFL-CIO 	in Case No. 	SF-UM-385 	shall 	be held 	in abeyance pending
the outcome of 	the ballot 	count 	ordered 	above. 	The 	issue 	of
the 	status 	of 	the Accelerated 	Instructional 	Program teachers 	is
hereby REMANDED 	to 	the 	San 	Francisco 	Regional 	Director 	of 	the
PERB 	for 	determination consistent with 	the 	discussion 	above.
The 	San Francisco 	Regional 	Director 	is 	ORDERED 	to 	take 	other
appropriate 	action 	consistent with 	this 	DECISION.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
12