Coast Community College District (PERB A159E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COAST 	FEDERATION 	OF 	EMPLOYEES/AMERICAN
FEDERATION OF 	TEACHERS, 	LOCAL 	1911,
Petitioner,
and
COAST 	CTA/NEA,
Employee 	Organization,
and
COAST 	COMMUNITY 	COLLEGE 	DISTRICT,
Employer.
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Case 	No. 	LA-D-197
Administrative 	ApFeal
PERB 	Order 	No. 	Ad-159
October 	15, 	1986
A!pearances: 	Lawrence 	Rosenzweig~ 	Attorney 	for 	Coast 	Federation
o 	Employees/American 	Federation 	of 	Teachers, 	Local 	1911; 	Edward
Romeo, 	Consultant, 	and 	Rosalind 	D. 	Wolf, 	Attorney, 	for 	Coast
CTA/NEA.
Before 	Hesse, 	Chairperson; 	Morgenstern 	and 	Craib, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	an 	appeal 	filed 	by
the 	Coast 	CTA/NEA 	(CTA) 	to 	a 	determination 	rendered 	by 	the
Board's 	Los 	Angeles 	regional 	director. 	In 	that 	determination
issued 	June 	19, 	1986, 	the 	regional 	director 	found 	that 	a
decertification 	petition 	filed 	by 	the 	Coast 	Federation 	of
Employees/American 	Federation 	of 	Teachers, 	Local 	1911 	(AFT) 	was-
timely 	filed 	and 	was 	accompanied 	by 	adequate 	proof 	of 	support 	to

meet
	the
	requirements 	of
	PERB
	Regulation
	32770(b)(2).
1 CTA
appeals
	the
	regional
	director's
	determination 	regarding
	the
adequacy
	of
	the 	proof
	of 	support.
	It
	claims
	that
	the
	size
	of
the
	certificated
	bargaining
	unit
	in
	which
	the
	decertification
election 	is
	sought
	is
	not 	as
	is
	asserted
	by
	AFT.
FACTUAL
	AND
	PROCEDURAL
	SUMMARY
On
	May
	30, 	1986,
	AFT
	filed
	a
	decertification 	petition
	with
the 	Board.
	That
	petition
	represents
	that
	CTA
	is
	the
	exclusive
representative, 	that
	the
	collective
	bargaining
	agreement
	has
	an
expiration
	date 	of
	September
	1,
	1986, 	and
	that
	there 	are
approximately 	1,326
	employees
	in 	the
	certificated
	bargaining
unit.
	Proof
	of
	service 	attached 	to
	the
	petition
	affirms
	that
the
	petition
	was
	mailed
	to
	Lee
	Anderson,
	CTA
	president.
On
	May
	30, 	1986,
	the 	regional
	director
	advised 	both
	CTA
	and
the 	Coast
	Community
	College
	District 	(District)
	of
	AFT's
petition.
	That
	letter
	sets 	forth 	certain 	facts
	as
	attested 	to
by
	AFT,
	the
	petitioner.
	Those
	facts
	include 	the 	date
	CTA
	was
certified
	as 	the 	exclusive 	representative
	and
	the
	expiration
lPERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8,
	section
	31001
	et
	seq.
	In
	pertinent 	part,
Regulation 	32770(b)(2) 	provides:
(b)
	The
	petition 	shall
	be 	accompanied 	by
proof
	that 	at 	least
	30
	percent 	of 	theemployees
	in 	the 	established 	unit
	•...
ooooeeoeeeecoeeee>eee
(2) 	Wish
	to 	be 	represented 	by 	anotheremployee
	organization.
2

date 	of 	the 	written 	agreement 	that 	currently 	exists 	between 	CTA
and 	the 	District. 2 The 	regional 	director 	requested 	each 	party
to 	confirm 	or 	refute 	the 	above 	information
provided 	by 	the 	petitioner 	by 	filing 	a
written 	statement 	with 	this 	office 	within 	15
calendar 	days 	of 	service 	of 	this 	letter.
(Emphasis 	supplied.)
The 	regional 	director's 	letter 	further 	advised 	the 	District
of 	its 	obligations 	pursuant 	to 	PERB 	regulations 	to 	post 	notices
of 	the 	decertification 	election 	and 	to 	provide 	the 	Board 	with 	a
list 	of 	names 	of 	all 	persons 	employed 	in 	the 	unit 	as 	of 	the 	last
3date 	of 	the 	payroll 	period 	preceding 	the 	filing. 	The 	letter
concludes:
This 	office 	will 	use 	the 	list 	of 	employees
provided 	by 	the 	employer 	to 	check 	the
sufficiency 	o 	[sic] 	the 	proof 	of 	support
submitted 	by 	the 	petitioner~ 	All 	parties
will 	be 	advised 	in 	writing 	as 	soon 	as 	a
proof 	of 	support 	determination 	has 	been 	made.
On 	June 	13, 	1986, 	the 	District 	communicated 	by 	letter 	to 	a
Board 	agent 	confirming 	certain 	information 	set 	forth 	in 	the 	Board
agent's 	letter 	to 	the 	District 	and 	confirming 	the 	expiration 	date
of 	the 	parties' 	contract. 	The 	District 	also 	advised 	the 	Board
agent 	that 	notice 	of 	the 	election 	had 	been 	posted 	and 	would
remain 	posted 	until 	June 	30, 	1986. 	The 	District 	also 	supplied
2The 	regional 	director's 	letter 	erroneously 	states 	that 	AFT
claims 	September 	11, 	1986 	as 	the 	expiration 	date 	of 	the 	parties'
contract. 	The 	petition 	sets 	forth 	September 	1, 	1986 	as 	the
expiration 	date, 	and 	the 	District's 	letter 	of 	June 	13, 	1986,
discussed 	infra, 	confirms 	September 	1, 	1986 	as 	the 	correct 	date.
3see 	PERB 	Regulations 	32772 	and 	32774.
3

the
	Board
	agent 	with
	a
	list
	of
	names
	of
	employees
	in
	the
	unit
	as
of
	the
	last
	date 	of 	the
	payroll 	period
	immediately
	preceding
May
	30,
	1986.
On
	June
	19,
	1986,
	the
	regional
	director
	advised 	the
	parties
that
	an
	election
	would
	be
	conducted
	to
	determine
	which
organization,
	if
	any,
	would
	serve
	as
	the
	employees'
	exclusive
representative.
	His
	letter
	concluded,
	inter
	alia,
	that
	review
of 	the 	proof 	of 	support 	submitted
	by
	AFT
	resulted
	in 	the
administrative
	determination
	that
	the 	support
	is 	sufficient
	to
meet
	the
	requirements
	of
	PERB
	Regulation 	32770(b)(2),
	supra.
On
	June
	27, 	1986,
	CTA
	submitted 	the
	instant
	appeal 	of
	the
Board
	agent's
	determination 	to
	proceed 	with
	the
	decertification
election.
	The
	appeal
	states
	in
	full
	as
	follows:
In
	accordance 	with
	PERB
	AdministrativeRegulation
	32350,
	Sub-section 	(a),
	Coast
CTA/NEA,
	current 	exclusive 	representative
for 	the
	unit
	in 	question, 	appeals 	the
Regional
	Director's
	determination
	that
	proof
of 	support 	submitted
	by
	the
	petitioner
	in
this
	case
	is 	sufficient
	to
	meet
	the
requirements 	of
	PERB
	Regulation
	32770
	(b).
This 	appeal
	is
	based
	on
	the
	fact 	that
	the
approximate
	number
	of
	employees
	in 	the
	unit
reported
	on
	the
	Decertification 	Petition,
and 	upon
	which
	the 	percentage 	of
	employees
submitted 	as 	proof 	of 	support 	depends,
differs 	substantially
	from
	the
	number
	Coast
CTA/NEA
	currently 	represents.
On
	July
	2, 	1986,
	AFT
	submitted
	its
	response 	to
	CTA's
	appeal.
First,
	AFT
	asserts 	that
	the 	underlying 	decision 	of 	the 	Board
agent 	concerns 	the 	mechanics 	of
	an
	election
	and
	is
	not 	appealable
under
	PERB
	Regulation 	32380. 	In
	pertinent 	part, 	that 	regulation
4

precludes 	review 	by 	the 	Board 	of 	the 	following 	administrative
decisions:
(a) 	A decision 	by 	a 	Board 	agent 	regarding
the 	mechanics 	of 	an 	election 	provided 	the
decision 	does 	not 	affect 	standing 	of 	a 	party
to 	appear 	on 	a 	ballot; 	..•
AFT 	also 	argues 	that 	the 	mere 	assertion 	that 	the 	unit 	size
claimed 	in 	the 	petition 	"differs 	substantially" 	from 	the 	number
CTA 	currently 	represents 	fails 	to 	comply 	with 	the 	requirements 	of
PERB 	Regulation 	32360(c) 4 and 	provides 	no 	basis 	for 	overturning
the 	regional 	director's 	decision. 	AFT's 	response 	states:
Without 	supplying 	numbers 	indicating 	that
tbe 	unit 	is 	mucb 	larger 	tban 	the 	Region
believes, 	the 	appeal 	of 	the 	CTA 	is 	simply
frivolous.
DISCUSSION
PERB 	precedent 	clearly 	establishes 	that 	it 	will 	entertain 	an
appeal 	of 	a 	dismissal 	of 	a 	decertification 	petition 	based 	on 	a
determination 	that 	tbe 	showing 	of 	support 	is 	inadequate. 	Marin
County 	Office 	of 	Education 	(1980) 	PERB 	Order 	No. 	Ad-95; 	State 	of
California 	(Department 	of 	Personnel 	Administration-) 	( 1983) 	PERB
Decision 	No·. 	327-S; 	Mendocino 	Community 	College 	District 	(1983)
PERB 	Decision 	No. 	369; 	State 	of 	California 	(Department 	of
Personnel 	Administration) 	(1985) 	PERB 	Order 	No. 	Ad-146-S. 	The
4PERB 	Regulation 	32360(c) 	provides:
The 	appeal 	must 	be 	in 	writing 	and 	must 	state
the 	specific 	issue(s) 	of 	procedure, 	fact,
law 	or 	rationale 	that 	is 	appealed 	and 	state
the 	grounds 	for 	the 	appeal.
5

Board's 	authority 	to 	conduct 	such 	a 	review 	rests 	on 	the
conclusion 	that 	the 	regional 	director's 	assessment 	of 	the
adequacy 	of 	support 	is 	not 	a 	decision 	regarding 	the 	''mechanics
of 	an 	election." 	In 	line 	with 	that 	precedent, 	the 	Board 	rejects
AFT's 	contention 	that 	the 	assessment 	of 	support 	in 	the 	instant
case 	is 	beyond 	the 	Board's 	purview.
While 	the 	Board 	has 	jurisdiction 	to 	review 	the 	administrative
decision 	made 	below, 	the 	appeal 	submitted 	by 	CTA 	affords 	no 	basis
upon 	which 	the 	Board 	can 	evaluate 	the 	conclusion 	reached 	by 	its
regional 	director. 	The 	record 	before 	the 	Board 	is 	devoid 	of 	any
information 	gathered 	during 	the 	regional 	director's 	investigation
regarding 	the 	unit 	size 	dispute.
While 	PERB 	regulations 	contemplate 	that 	the 	Board's 	regional
directors 	review 	the 	proof 	of 	support 	submitted 	with 	petitions,
nothing 	in 	the 	regulations 	puts 	the 	incumbent 	union 	on 	notice 	of
the 	time 	period 	for 	review 	of 	the 	proof 	of 	support 	issue. 	In
the 	instant 	case, 	CTA 	was 	mailed 	a 	copy 	of 	AFT's 	petition 	dated
May 	30, 	1986 	indicating 	a 	unit 	size 	of 	1,326 	employees.
Thereafter, 	CTA 	was 	also 	mailed 	a 	copy 	of 	the 	District's 	letter
to 	the 	regional 	director 	dated 	June 	13, 	1986 	indicating 	that 	it
was 	supplying 	the 	Board 	with 	the 	list 	of 	employees 	as 	had 	been
requested. 	The 	regional 	director's 	final 	determination 	of 	the
adequacy 	of 	AFT's 	proof 	of 	support 	followed 	six 	days 	later, 	on
June 	19.
In 	the 	record 	before 	us, 	we 	find 	no 	indication 	that 	the
regional 	director 	discussed 	the 	unit 	size 	issue 	with 	the 	parties.
6

In
	his
	letter
	to
	CTA
	and
	the
	District
	on
	May
	30, 	1986,
	the
invitation
	to
	respond
	within 	the
	15-day
	period
	specified
	in 	the
letter
	referred
	to
	the
	date
	CTA
	was
	certified
	as
	the
	exclusive
representative
	and
	the
	expiration
	date 	of 	the
	agreement 	between
CTA
	and
	the
	District.
	The
	letter
	does
	not
	invite
	CTA
	to
	respond
within
	the
	15-day
	period 	regarding 	the
	size
	of 	the
	unit.
Reference
	to
	the
	number
	of
	employees
	in 	the
	unit
	appears
	on
	page
two
	of
	the
	letter
	where
	the
	District 	is
	requested 	to
	submit
	the
list
	of
	names
	as 	they 	appear
	on
	the
	payroll.
	In
	contrast 	to
	the
factual
	points 	raised
	on
	page 	one,
	the
	regional
	director's
letter
	states
	that
	PERB
	will
	use
	the
	District-provided
	list
	to
check
	the
	sufficiency
	of 	support
	and
	that
	the
	parties
	will
	be
.
advised
	"as
	soon
	as
	a
	proof 	of 	support 	determination
	has 	been
made."
	Given
	the
	specific
	15-day 	response
	period 	regarding 	the
two
	other 	issues,
	it
	is
	not 	unreasonable
	to
	interpret
	the
language
	referencing 	unit 	size
	as
	an
	instruction 	that
	CTA
	await
the 	regional
	director's
	determination.
In
	sum,
	neither
	PERB
	regulations
	nor
	the 	regional
	director's
letter
	unambiguously
	advised
	CTA
	of
	specific
	time
	limits 	during
which
	the 	unit 	size 	issue 	could
	be
	raised.
	As 	a
	result,
	the
factual 	circumstances 	relevant 	to 	the
	unit 	size 	dispute
	have 	not
been
	adequately 	explored,
	and
	we
	find
	that
	determining 	the
adequacy 	of 	support
	is
	an 	assessment
	best 	rendered
	initially
	by
the 	regional
	staff.
7

ORDER
The 	Board
	REMANDS
	this
	case
	to
	the
	regional
	director
	so
	that
the
	parties'
	assertions
	regarding
	unit 	size
	can 	be
	fully
considered.
Chairperson
	Hesse 	and
	Member
	Craib
	joined 	in
	this
	Decision.
8