PERB Order No. A090E•Cabrillo Community College District (PERB A090E)
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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
5tc 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
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