State of California (Department of Personnel Administration) * * * OVERRULED IN PART by Pasadena Area Community College District (2023) PERB Order No. Ad-502 * * * (PERB 0532S)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF STAFF, 	ADMINISTRATIVE
AND FINANCIAL EMPLOYEES,
Employee 	Organization,
and
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION,
Employee 	Organization,
and
STATE 	OF 	CALIFORNIA 	(DEPARTMENT 	OF
PERSONNEL ADMINISTRATION),
Employer.
Case No. 	S-D-88-S
(S-SR-1)
PERB Decision No. 	532-S
October 30, 	1985
Appearance; 	Lemaire & Faunce by Edward L. 	Faunce 	for 	the
Association of 	Staff, 	Administrative and Financial 	Employees.
Before Hesse, 	Chairperson; Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	In the instant case, 	the Association of
Staff, 	Administrative and Financial Employees 	(SAFE) 	appeals 	the
decision dismissing 	its 	decertification petition. 	In accordance
with the 	following discussion, 	we adopt 	the attached decision of
the Chief, 	Division of Representation 	(Chief) 	of the Public
Employment Relations Board 	(PERB or Board), 	and 	find that 	SAFE's
petition was 	accompanied by an 	inadequate 	showing 	of 	support.
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* * * OVERRULED IN PART by Pasadena Area Community College
District (2023) PERB Order No. Ad-502 * * *

DISCUSSION
In order 	for 	SAFE to have 	initiated an election 	to decertify
the 	exclusive representative, 	the California State 	Employees'
Association 	(CSEA), 	SAFE was 	required to present a 	30-percent
showing 	of 	support.l 	The 	question here 	concerns 	the 	adequacy
of 	SAFE's 	5,945 	valid 	signatures 	and 	turns 	on 	the 	size 	of 	the
established 	unit.2 In 	its 	decertification petition 	filed 	on
March 29, 	1985, 	SAFE contended that Unit 	1 consisted of 	21,000
employees. 	The 	State of 	California 	(Department of 	Personnel
Administration) 	(DPA) 	filed a list 	of Unit 	1 	employees 	with the
Board 	that 	numbered 	23,229 	employees.
SAFE's 	appeal 	challenges 	DPA's 	unit 	size and 	is 	based on 	the
unit placement 	of permanent-intermittent 	employees 	and
temporary-intermittent 	employees. 	However, 	as 	noted by the
Chief 	in her discussion, 	there 	is 	no dispute that both
permanent-intermittent 	employees 	and 	temporary-intermittent
employees 	are members 	of Unit 	1. 	Both groups of 	intermittent
employees 	are 	employed 	in 	the 	job classifications 	listed 	in
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq. 	Regulation 32770 requires
that 	a petition 	for 	an election 	to decertify an 	existing
exclusive 	representative be 	accompanied by proof 	that 	at 	least
30 percent 	of 	the 	employees 	in 	the 	established 	unit 	either no
longer 	desire 	to be 	represented by 	the 	incumbent 	exclusive
representative 	or 	wish 	to be 	represented 	by another 	employee
organization.
2Unit 	Determination 	for 	the 	State 	of 	California 	(1979)
PERB Decision No. 	110-S established, 	inter alia, 	that Unit 1 	is
comprised 	of 	administrative, 	financial 	and 	staff 	services
employees.
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that 	unit by PERB 	in 	Unit 	Determination 	for 	the 	State 	of
California, 	supra. 	Names 	of 	intermittent 	employees 	were
included 	on 	the 	eligible 	voter 	lists 	during 	the 	initial
representation elections 	conducted 	in 1981. 	In addition, 	the
names 	of 	intermittent 	employees 	have 	been 	included 	on
proof-of-support 	lists 	and voter 	lists 	in runoff 	elections,
agency 	fee 	elections 	and 	decertification 	elections 	conducted 	in
some 	13 	elections 	since 	the 	initial 	elections were 	run.
Moreover, 	the 	current 	agreement between CSEA and 	the 	employer
contains 	provisions 	which 	apply 	to 	intermittent 	employees.
Based on these 	facts, 	we are hesitant 	to conclude that 	the
"established 	unit" 	referenced 	in 	the 	showing-of-support
regulation means 	something 	other 	than Unit 	1 	composed as 	it
consistently has 	been since 	1981.
SAFE, 	in the 	instant appeal, 	posits 	two reasons 	to diverge
from the 	unit 	configuration established 	to date. 	The 	first 	is
that, 	by agreement between CSEA and DPA, 	temporary-intermittent
employees 	will 	be 	excluded 	from 	the 	agreement 	when and 	if 	CSEA
ratifies 	a 1985 	contract. 	SAFE cites 	to Norris-Thermador 	Corp.
(1958) 	119 NLRB 1301 	[41 LRRM 1283] 	where 	the NLRB 	indicated
that, 	where 	the parties 	to a representation proceeding enter
into 	a 	written 	and 	signed 	agreement 	which 	expressly 	resolves
disputes 	concerning 	the 	eligibility of 	voters, 	such decisions
are 	considered 	final 	eligibility determinations 	unless 	contrary
to the National 	Labor 	Relations 	Act 	or National 	Labor 	Relations
Board 	policy.
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We 	agree 	with 	CSEA's 	position 	that 	Norris-Thermador 	is
inapposite. 	Unlike 	the Norris-Thermador case, 	here 	the agreement
between DPA and 	CSEA is 	an effort 	to modify the 	unit 	and, 	by 	its
terms, 	is 	not a stipulation concerning eligibility nor was 	it
executed 	in 	the 	context 	of 	a 	representation proceeding.
Moreover, 	the agreement 	reached by CSEA and 	DPA represents 	a
unit modification not 	submitted 	for Board approval. 	That 	is,
the 	agreement 	to 	exclude 	the 	temporary-intermittent 	employees
was 	not 	submitted pursuant 	to 	PERB 	Regulation 	32781 	which permits
petitions 	based 	on a 	showing 	that 	the 	deleted 	classifications 	no
longer 	exist 	or 	based on changed 	circumstances. 	(See 	Regulation
32781(b)(1).) 	Rather, 	in exchange 	for withdrawing 	from Board
review unit modification requests, 	the parties have agreed as 	to
how they will 	view the unit 	at 	some 	future date, 	not 	at 	the 	time
the petition was 	submitted. 	Inasmuch as 	SAFE is 	not a party to
that 	agreement, 	and 	inasmuch as 	that agreement has yet 	to become
effective, 	SAFE's 	argument 	that 	the 	Board 	should determine unit
size 	exclusive 	of 	all 	temporary-intermittent 	employees 	is
unpersuasive.
SAFE's 	remaining 	contention 	is 	that 	all
permanent-intermittent 	employees 	not 	employed 	on 	February 	28
should be deleted 	from the 	unit.3 In 	support 	of 	this
argument, 	SAFE relies 	on NLRB v. 	New England Lithographic 	Company
3Applying 	PERB Regulation 	32774, 	February 28 was 	the 	last
date 	of 	the payroll 	period 	immediately preceding 	the 	date 	the
decertification petition 	was 	filed.
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(1st Cir. 	1978) 	589 P.2d 29 	[100 LRRM 2001]. 	In that case, 	the
court 	was 	faced with 	the 	task 	of 	determining 	the 	standard 	for
voter 	eligibility of 	temporary 	employees 	and 	adopted 	a 	"date
certain" test.
Under 	that 	test, 	an employee may be 	fully
aware 	that his 	or her 	employment 	will be
short-lived, 	but, 	as 	long as no definite
termination date 	is 	known and 	the employee
was 	employed 	on 	the 	eligibility and 	election
dates, 	he or she will be eligible to vote.
The 	stated purpose 	of 	the date 	certain 	test 	was 	to dispense with
the 	difficult 	task 	of 	assessing an 	employee's 	reasonable
expectation of 	continued 	employment. 	In 	contrast 	to 	the
situation 	in New England Lithographic 	Company, 	the 	employees here
are 	not 	temporary employees 	whose 	expectations 	of 	continuing
employment are at 	issue but, 	rather, 	they are permanent, 	albeit
intermittent, employees.
Moreover, 	SAFE misreads 	the court's 	test. 	Borrowing only
the 	"date certain" 	language, 	it relies on the court's 	decision
to support 	its 	contention 	that 	an employee must be 	employed on a
date certain, 	here February 28, 	in order to be counted among
eligible voters. 	Correctly read, 	the court's 	test affords 	no
such support 	to SAFE's 	argument. 	The 	"date certain" 	it
references 	is 	a definite 	termination date. 	It renders 	an
otherwise 	eligible 	temporary employee 	ineligible 	if he 	or 	she
has 	a definite 	termination date. 	New England Lithographic 	is,
therefore, 	inapposite.
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ORDER
Based on the 	foregoing, 	we AFFIRM the Chief's 	dismissal 	of
SAFE's 	decertification petition based 	on 	an 	insufficient
showing 	of 	support.
Chairperson Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
66

STATE OP CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
ASSOCIATION OF STAFF, 	ADMINISTRATIVE
AND 	FINANCIAL EMPLOYEES,
Employee Organization,
and
CALIFORNIA STATE EMPLOYEES'
ASSOCIATION,
Employee Organization,
and
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Employer.
Case No. 	S-D-88-S
(S-SR-1)
DISMISSAL
August 9, 	1985
BACKGROUND
On May 10, 	1985, 	the Association of Staff, 	Administrative
and Financial Employees 	(hereafter SAFE or petitioner) 	was
requested 	to Show Cause as 	to why 	its petition 	for
decertification 	in the above-referenced 	case 	should not be
dismissed 	for 	failure 	to demonstrate 	at 	least 	30 percent proof
of 	employee support 	in the established unit. 	SAFE'S 	response
to 	the 	Show Cause Order 	was 	filed with 	the 	Public Employment
Relations Board 	(hereafter PERB or Board) on May 23, 	1985. 	On
May 24, 	1985, 	the State of California 	(hereafter 	state, 	DPA or
Employer) and the California State Employees' 	Association
(hereafter CSEA) 	were granted an opportunity 	to 	file a 	response
to 	SAFE'S 	submission. 	CSEA filed 	such a 	response on June 	3,
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1985. 	DPA filed no response. 	On June 12, 	1985, 	SAFE submitted
a 	response 	to CSEA's 	response.1l
DISCUSSION
Effect of 	the 	Tentative 	CSEA-DPA Agreement 	Regarding 	Temporary
Intermittent 	Employees
SAFE has 	provided no new 	facts or persuasive argument 	in
support of 	its 	contention that all 	temporary 	intermittent
employees 	should be 	stricken 	from 	the 	eligibility list 	used by
PERB to verify 	SAFE'S proof of support by virtue of a 	tentative
meet 	and 	confer agreement between CSEA and 	DPA. 	SAFE'S
reliance on the Norris Thermador case 	is misplaced. 	In
Norris-Thermador, 	the NLRB establishes 	the principle that 	it
will generally honor a binding, 	signed written agreement of all
parties 	to an election which 	resolves 	voter eligibility
issues. 	In the 	instant case, 	no such binding signed written
agreement exists, 	and 	in fact, 	the issue of voter eligibility
cannot 	even be 	reached unless 	it 	is 	first 	established 	that 	the
decertifying petitioner possesses 	the support of at 	least 	30
percent of the employees 	in the 	unit.
For the reasons outlined 	in the May 10, 	1985 Order To Show
Cause 	(see attached, 	at pp. 	2-5), 	the tentative CSEA-DPA
agreement does 	not bar 	inclusion of the names of temporary
1See 	the May 	10, 	1985 ORDER TO SHOW CAUSE 	(copy attached
and 	incorporated by 	reference) 	for 	additional background
information.
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intermittent employees on the February 28, 	1985 list provided
by the Employer.2
Definition of 	"Employed"
SAFE contends 	that 	PERB's request 	for a 	list of all persons
"employed . 	. 	. as of February 28, 	1985" should mean, or be
limited to, 	all employees 	"working" 	on February 28. 	More
specifically, 	SAFE contends 	that an individual, 	to be 	included
on the list, 	must be working or must 	satisfy one of the
exemptions 	specified 	in 	PERB's 	voter 	eligibility 	regulation
32728.33 SAFE cites a number of National Labor Relations
Board 	(NLRB) 	cases 	in support of 	its position. 	NLRB precedent
in this area 	is multi-faceted and deserves a closer 	look.
2It should be noted 	that 	SAFE erroneously contends, 	in
its May 23, 	1985 submission, 	that an agreement between CSEA and
DPA to exclude certain temporary 	intermittent classes 	from 	the
bargaining 	unit has been 	"accepted by 	the 	PERB." 	PERB has 	not
ruled on any such unit 	modification request, 	nor 	is any such
request pending before 	PERB.
3PERB Regulations are codified at Cal. 	Admin. 	Code,
title 8, 	section 31001 et 	seq. 	Regulation 32728 provides:
Voter Eligibility. 	Unless otherwise
directed by the Board, 	to be eligible 	to
vote 	in an election, 	employees must be
employed 	in the voting 	unit 	as of 	the cutoff
date 	for voter eligibility, 	and 	still
employed on 	the 	date 	they cast 	their ballots
in the election. 	Employees who are 	ill, 	on
vacation, 	on leave of absence or sabbatical,
temporarily laid off, 	and employees who are
in 	the 	military 	service of 	the United 	States
shall be eligible to vote. 	Mailed ballots
may be utilized 	to maximize 	the opportunity
of such voters to cast their ballots.
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It 	is 	true 	that several NLRB cases do spell out that an
eligible 	voter must be 	"employed 	and 	working." 	These
rulings, however, 	were not made in the context of intermittent
employment. 	Instead, 	they look 	at such 	issues as whether a
person already hired by the company had begun working 	at 	the
actual plant 	or department 	where 	employees 	were 	voting 	(General
Chemical Works; Airport Shuttle-Cincinnati v. 	NLRB) or whether
an employee who quit 	the day before 	the election 	should be
allowed 	to vote because he received pay 	in his 	termination
check 	for 	two holidays 	due him 	(Roy N. 	Lotspeich 	Publishing
Co.). 	(NLRB case 	law regarding 	intermittent and temporary
employees 	is discussed below.)
SAFE attempts to limit any exceptions 	to 	the 	"working"
requirement 	to categories 	spelled out 	in PERB Regulation 	32728,
but offers no valid support 	for this argument. 	Complete voter
eligibility 	requirements 	are 	traditionally 	set 	forth 	in an
election order, 	both at 	PERB and 	the NLRB.55 Regulation 32728
4See General Chemical Works, 	67 NLRB 174 (1946); Roy N.
Lotspeich Publishing Co., 	204 NLRB 517 	(1973); 	Airport
Shuttle-Cincinnati 	v. 	NLRB, 	112 	LRRM 	3169 	(1983).
5In 	Lotspeich, 	supra, 	the NLRB, 	quoting Ra-Rich
Manufacturing Corporation, 	120 NLRB 1444, 	1447 	(1958),
reiterates 	its principle validating voter eligibility when the
voter 	is 	"absent 	for one of 	the 	reasons 	set out 	in the
Direction of Election." 	PERB Directed 	Election 	Orders under
SEERA have 	consistently defined 	voter 	eligibility by 	including
the definition that 	"employed" 	means 	on paid or unpaid 	status
as of the cutoff date in question. 	See, 	e.g., 	Directed
Election Orders 	in previous SEERA cases 	S-OS-50-S, 	Unit 	1;
S-D-64-S, Unit 6; 	S-D-70, Unit 12; 	S-D-71-S, Unit 10.
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does 	not 	in any way limit 	the number or type of voter
eligibility provisions 	which 	the 	Board 	agent 	can 	invoke when
ordering an election. 	On the contrary, 	the regulation prefaces
all 	substance 	with 	the proviso 	"unless 	otherwise directed by
the Board."
In the 	instant case, 	no Directed Election Order has been
issued, 	as 	the validity of the decertification petition has not
been established. 	As stated 	in the May 10, 	1985 Order to Show
Cause, 	however, 	PERB has consistently applied 	its voter
eligibility standards 	to proof of support 	lists as well.
The main 	issue here, 	however, 	is not Board agent discretion
under Regulation 32728, 	for even if a Board agent, were 	to be
limited, 	as 	SAFE would have 	it, 	to the exact language of 32728,
the controversy is not resolved. 	The validity of 	PERB's
established definition of 	"employed" 	as used 	in that 	regulation
(i.e., 	"employed" means on paid or unpaid status) 	remains the
central 	issue.
SAFE contends 	that 	its definition of 	"employed" 	is
consistent with State 	law. 	I disagree. 	Government Code
section 18526 defines 	"employee" 	as 	"a person 	legally holding a
position in the State civil 	service." 	Government Code 	section
18522 defines 	"position" as 	"any office or employment 	in the
'state civil service' as 	the phrase 	is 	defined 	in section 4 of
Article VII of 	the Constitution." 	Government 	Code section
18552 defines 	"intermittent" position or appointment as 	"a
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position or appointment 	in which the employee 	is 	to work
periodically or 	for a 	fluctuating portion of 	the 	full-time 	work
schedule." 	Section 35l3(c) 	of the State Employer-Employee
Relations 	Act 	(SEERA)6 defines 	"state employee" 	as 	"any civil
service employee of the 	state" and goes on to 	list exclusions,
none of which refer to any employee's time base. 	Nothing 	in
these definitions 	leads 	to a 	conclusion that a person with a
continuing 	employment 	relationship with 	the 	state 	is 	"employed"
only on those 	days 	s/he performs 	work 	for 	the 	state.
Consistent with the Government 	Code definitions of the term
"employee," 	PERB has defined 	"employed" 	to mean a person's
status vis a vis the State of California 	(i.e., 	does the person
have a continuing, 	albeit intermittent, 	employment 	relationship
with the state or not). 	PERB therefore requests voter lists
and proof of 	support 	lists 	from the 	employer which 	require 	the
employer to 	list 	every 	individual who 	is 	registered as an
"employee" 	in the 	job classifications 	in the unit 	in question.
PERB, 	as does the NLRB, 	possesses a wide degree of
discretion 	in 	establishing election-related procedures 	to
safeguard the rights of all parties, 	with the overall goal of
effectuating 	the purpose of 	SEERA.7	7 PERB's definition of
6SEERA is codified at Government Code section 	3512 et 	seq.
7See NLRB v. 	New England Lithographic Co., 	100 	LRRM 2003
(1978); Government Code sections 3512, 	3520.5(b), 	3541.3(1) and
(n).
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employed, 	as outlined herein and 	specified 	in SEERA Directed
Election Orders 	(see footnote 5, 	infra) 	is clearly in concert
with applicable statutes 	and precedent.
For the 	reasons 	stated herein, 	and 	those outlined 	in the
May 10, 	1985 Order to Show Cause, pp. 	6-8, 	SAFE'S position that
"employed" means 	actually working or 	satisfying one of 	the
exceptions 	in regulation 32728 	is 	rejected.
Temporary 	Employees
In order to determine whether temporary employees are
eligible to vote, 	the NLRB has 	established a 	"date certain"
test.8 Essentially, 	under this test, 	temporary employees are
disqualified 	from voting 	if 	they have been hired 	for a 	set 	term
with a definite 	termination 	date.9 Applying 	the 	test, 	the
NLRB has 	allowed 	authorization cards and 	voter 	eligibility in
each case 	where 	no 	actual 	termination date 	for 	the 	employee had
been specified, 	regardless of employee awareness or other
evidence 	that 	the 	term of employment was expected 	to be
short-lived.10
8See 	NLRB v. 	New England Lithographic Co., 	supra.
9SAFE misconstrues 	the NLRB "date certain" 	test. 	This
test does 	not 	relate 	to 	the 	establishment 	date of a proof of
support or voter 	list. 	SAFE correctly contends 	that 	"to be
considered 	in determining 	the showing of 	interest, 	persons must
have been employed on a 	"date certain" 	and 	that 	the 	"date
certain 	for 	determining eligibility 	is 	February 28,1985."
SAFE, however, 	incorrectly cites NLRB v. 	New England
Lithographic, 	supra, 	as support for this concept.
10See NLRB v. 	New England Lithographic Co., 	supra;
Trustee of the Stevens 	Institute, 	222 NLRB No. 	13 (1976) ; M.J.
Pirolli & Sons, 	Inc., 194 NLRB No. 	37 (1972).
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The PERB has 	not adopted 	the NLRB approach 	to temporary
employees. 	On the 	contrary, 	PERB has generally included
temporary employees 	in bargaining 	units with 	regular
employees.11	11 Additionally, 	PERB has 	never placed 	special
restrictions 	on temporary employees' 	voter eligibility.
In the 	instant case, 	temporary employees as a group are not
at 	issue. 	There are, 	in State service, 	three time bases for
employees: 	full time, 	part time and intermittent. 	In
addition, 	there are three tenure statuses: 	permanent, 	limited
term 	(LT) 	and TAU.12 Each employee 	in State 	service has both
a time base and a 	tenure 	status.
It 	is undisputed that 	full time and part time temporary
employees 	(LT and TAU) 	are 	included 	in Unit 1 and properly
included on 	the proof of support 	list, 	provided 	they were
employed as of February 28, 	1985. 	At 	issue in this case are
only such 	temporary employees 	who 	may also be 	intermittent.
Intermittent 	Employees
As determined above, 	to be 	"employed" by the state on
11	ll see	see 	Belmont Elementary School District 	(12/30/76) 	PERB
Decision No. 7, Grossmont 	Union High 	School 	District 	(3/9/77)
PERB Decision No. 	11, 	Shasta-Tehama-Trinity Joint Community
College District 	(9/22/77) 	PERB Decision No. 	31, 	Dixie
Elementary School District 	(8/11/81) 	PERB Decision No. 	171,
California State University (9/22/81) 	PERB Decision No. 	173,
University of California 	(3/4/83) 	PERB Decision No. 	290-H,
University of California 	(3/23/83) 	PERB Decision No. 	247b-H,
Davis 	Joint 	Unified School 	District 	(12/31/84) 	PERB 	Decision
No. 474.
1 2 LT and 	TAU are 	separate 	types 	of 	temporary employment.
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February 28, 	1985, 	a person need only have a continuing
employment 	relationship with the 	state on that date. 	It 	is 	not
necessary 	that 	s/he performed 	work 	for the 	state on 	that
precise 	date. 	Under 	this determination all 	intermittent
employees 	(whether permanent or temporary) 	on the 	list 	supplied
by the 	state were 	"employed" 	February 28, 	1985. 	The
Legislature 	found 	sufficient 	ties 	between all 	intermittent
employees 	and 	the 	state 	employer 	to 	consider 	them 	"employed."
This 	is clear 	from the broad definition 	the Legislature gave
that 	term in the Government Code. 	For PERB to 	follow suit,
deeming 	the same employees 	to have an employment tie 	sufficient
to make them eligible 	for election participation, 	is 	not an
abuse of discretion. 	Nonetheless, 	a review of decisions
relating 	to 	similarly 	situated groups of employees 	is
informative.
The NLRB 	standard 	for determining 	voter 	eligibility of
intermittent employees 	requires 	that such employees possess a
sufficient continuing 	interest 	in 	their 	conditions of
employment. 	The NLRB has 	stated 	that: 	"Selection of an
eligibility formula . 	. 	. depends upon a careful balancing of
the 	factors of length, 	regularity and currency of employment
giving due 	regard 	to the 	industry 	involved." 	(Daniel
Ornamental Iron Co., 	Inc., 	195 NLRB 334 (1972); 	see also Daniel
Construction Company, 	Inc., 	133 NLRB 264 (1961); Artcraft
Displays, 	Inc., 	262 NLRB 1233 	(1982).) 	Other state PERB's have
9

also established 	"sufficient 	interest" 	formulas 	for election
participation of 	employees 	with 	non-regular 	work 	schedules 	(see
Dane County (Exposition Center-Memorial Coliseum) 	(Wisc. 	1979),
Dec. No. 16946; Philadelphia School District 	(Pa. 1975) 	5 PPER
113.)
The California 	PERB has 	decided 	two cases 	which 	involved a
voter 	eligibility 	determination 	regarding 	irregular 	employees
based on 	"established 	interest 	in employment 	relations 	with 	the
District." 	In Palo Alto Unified 	School 	District 	and Jefferson
Union High School District 	(1/9/79) 	PERB Decision No. 	84, 	the
Board placed all substitute 	teachers 	in a bargaining 	unit, 	but
determined 	that only those 	substitutes 	on the current
substitute 	teacher 	list 	who had 	taught 	at 	least 	10 percent of
pupil school days 	in the current or previous school years would
be eligible 	to vote in the election.
In light of the Board's action 	in Palo Alto/Jefferson,
supra, 	it might be appropriate 	to apply in the 	instant case a
similar 	"established 	interest" 	formula. 	In doing so, 	care must
be 	taken 	to develop a 	standard which 	is both based 	firmly on
Board precedent and administratively 	feasible 	for 	the very
-
large 	and multi-operational 	State of California.
A 	formula which meets 	these 	tests would allow 	intermittent
(both permanent 	and temporary) 	employee 	names 	to be 	included on
a proof of 	support 	list 	provided 	such 	employees had 	actually
been 	compensated 	for 	at 	least 	10 percent of 	full-time 	state
10

employee hours 	(a total of 208 hours) during the one year
period 	immediately preceding 	the 	filing of 	the petition. 	The
one year period, 	although less than the 	time period allowed 	for
substitutes in Palo Alto/Jefferson, 	is most 	reasonable because
(1) 	proof of support signatures are only valid for one year
prior 	to the 	filing of a petition, 	and 	(2) 	State of California
computer records of employee hours of compensation are not
regularly available 	for a period of much greater 	than one year
prior to the date 	requested.
Concluding 	that application of 	such a 	formula might be
appropriate, 	I 	requested necessary data 	from the Employer.
Applying 	the above-described 	formula, 	the size of the new
employer 	list was 	20,973 employees. 	(The size of 	the original
list was 	23,229 employees.) 	The number of signatures 	(at 	least
30 percent) 	needed by SAFE to qualify 	its decertification
petition would 	therefore have been 6,292. 	When SAFE'S 	proof of
support was checked against this new 	list, 	however, 	their
number of 	valid 	signatures became 	5,716. 13	13
CONCLUSION
The size of Unit 	1 is 	23,229 employees as of the date 	in
question: 	February 28, 	1985. 	PERB regulations provide that at
least 	30 percent of the employees 	in the unit 	must 	support a
13	13 Even	Even checked against the old l i s t of 23,229 names, 	SAFE
only possessed 	5,945 valid signatures 	— 	s t i l l far short of the
reduced 30 percent figure of 6,292 names.
11

decertification petition. 	The reason 	for such a 	requirement 	is
obvious. 	On the one hand, 	employees must have 	the opportunity
to remove or replace an exclusive representative. 	On the other
hand, 	the decertifying petitioner must prove that 	it has 	the
support of a 	sufficient percentage of employees 	in the unit 	to
justify 	the 	time 	and money expended by 	PERB and other 	parties
on the conduct of an election. 	The question of the size of the
unit 	is 	therefore a 	critical one. 	No party can be allowed 	to
artificially alter the 	size of a unit 	to serve 	its own purposes.
As described herein, 	and in the May 10, 	1985 Order to Show
Cause, 	the inclusion of all employees employed 	in
classifications included in Unit 1 	is 	fully justified, 	given
applicable state 	law, 	and 	is consistent with past practice
under 	SEERA. 	In view of 	the Palo Alto/Jefferson decision and
the Board's reliance on NLRB precedent therein, 	it 	is arguable
that a 	10 percent 	"sufficient 	interest" 	formula 	should be
applied 	to determine 	intermittent 	employee eligibility 	for
inclusion 	in the proof of support concept. 	Even under 	that
standard, however, 	SAFE does not meet the 30 percent
requirement.
Based on 	the 	foregoing, 	and 	the entire record 	in this
matter, 	the decertification petition 	filed by 	SAFE is hereby
dismissed.
An appeal to 	this decision pursuant 	to 	PERB Regulations
32350 through 	32380 may be made within 	10 calendar 	days
12

following 	the date of service of this decision by 	filing a
statement of 	facts 	upon which the appeal 	is based with the
Board itself at 1031 18th Street, 	Suite 200, 	Sacramento,
California 95814. 	Copies of any appeal must be concurrently
served 	upon all other parties and 	the 	Sacramento 	Regional
Office. 	Proof of 	service pursuant 	to Regulation 32140 	is
required.
JANEJanet E. CARAWAY
Chief, 	Division of Representation
13

STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF STAFF, 	ADMINISTRATIVE
AND FINANCIAL EMPLOYEES.
Employee Organization,
and
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION.
Employee Organization,
and
STATE OF 	CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION).
Employer.
Case No. 	S-D-88-S
(S-SR-1)
ORDER TO SHOW CAUSESE	SE
May 10. 	1985
The Association of Staff. 	Administrative and Financial
Employees 	(hereafter SAFE or petitioner) 	is hereby requested to
SHOW CAUSE as 	to why 	its 	petition for 	decertification 	in the
above-referenced 	case 	should 	not 	be 	dismissed 	for 	failure 	to
demonstrate at 	least 	30 	percent 	proof 	of 	employee support 	in
the 	established 	unit.
BACKGROUND
On March 29. 	1985. 	SAFE filed a petition to decertify the
California State Employees' 	Association 	(hereafter CSEA) 	in
state Unit #1 	(Administrative, 	Financial and Staff Services).
SAFE 	indicated 	in 	its 	petition that 	the 	size of 	Unit 	#1 was
approximately 21.000 employees. 	On April 	18. 	1985. 	the State
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of 	California 	(hereafter 	DPA or 	employer) 	filed with 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB) 	Sacramento 	Regional
Office a 	list 	of 	all 	persons 	employed 	in Unit 	#1 	as 	of
February 28. 	1985. 	The 	list contained 23,229 names.
On April 	26. 	1985. 	SAFE, 	in a 	letter to PERB, 	clarified 	its
position 	regarding what 	the 	composition 	of 	Unit 	#1 	should 	be
for 	the 	purpose 	of verifying 	SAFE'S 	proof 	of 	support.
Essentially. 	SAFE maintains 	that 	(1) 	all 	"other 	intermittent"
employees 	(also 	referred 	to 	as 	temporary 	intermittent, 	TAU or
limited 	term employees) 	should 	be 	excluded, 	and 	(2) 	all
permanent 	intermittent 	personnel 	who 	were 	not 	actually working
on February 28. 	1985 	should 	also 	be 	excluded. 	SAFE 	estimates
that 	each 	of 	these 	two 	exclusions 	would 	eliminate 	approximately
2.000 	people 	and 	thus 	takes 	the 	position that 	the 	correct 	unit
size 	for 	purposes 	of 	verifying proof 	of 	support 	is 	19.200
employees.
On May 3, 	1985. 	CSEA filed with PERB a 	list 	of 	names 	and 	a
position 	statement 	which 	indicated 	that 	there 	may 	be 	as 	many 	as
3.994 	additional 	employee 	names 	left 	off 	the 	employer's 	April
18 	list 	in error.
DISCUSSION
1
PERB 	Regulation 	32770 	provides 	that 	an 	employee
organization may 	file 	a 	petition 	to 	decertify an 	exclusive
1PERB Regulations 	are codified at Cal. 	Admin. 	Code,

representative 	in an 	established unit. 	This 	regulation 	also
requires 	the 	decertifying petitioner 	to 	file 	proof 	that 	at
least 	30 	percent 	of 	the 	employees 	in 	the 	established 	unit
support 	its petition. 	It 	is of 	initial 	importance, 	therefore,
to 	clarify 	the 	composition 	of 	the 	established 	unit.
It 	is 	undisputed 	that 	both 	permanent 	intermittent 	employees
and 	temporary 	or 	"other" 	intermittent 	employees 	are members 	of
Unit 	#1. 	These 	employees 	are 	employed 	in 	job 	classifications
placed 	in Unit #1 by the PERB 	in 1980. 	(See Unit Determination
for 	the 	State of California 	(11/7/79) 	PERB Decision
No. 	110-S.) 	I 	specifically discussed with the 	employer 	the
title 8, section 31001 et 	seq. 	Regulation 32770 provides, 	in
pertinent 	part:
32770. 	Petition.
(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.
(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. 	(Emphasis 	added.)
wJ

inclusion of 	intermittent 	employees 	on 	the 	lists 	of 	eligible
voters 	in 	the 	initial 	state 	representation 	elections 	held 	in
1981. 	In addition to the 	1981 voter 	lists, 	their names have
also 	been 	included 	both on 	proof 	of 	support 	lists 	and 	voter
lists 	in all 	runoff, 	agency 	fee 	and 	decertification
elections.2N 	The 	current written 	agreement 	between 	CSEA 	and
the employer 	(term July 1, 	1984 	through June 	30, 	1985) 	contains
provisions 	which apply 	to 	intermittent 	employees.
SAFE 	argues 	that 	CSEA and 	the 	employer, 	on March 4, 1985.
jointly 	agreed 	to 	remove 	certain 	temporary 	intermittent
personnel 	from Unit 	1, 	and 	that 	therefore 	the names 	of 	these
employees 	should 	not 	appear 	on 	any 	list 	used 	to 	determine
adequacy of 	SAFE'S 	proof 	of 	support. 	What 	SAFE 	fails 	to 	note,
however, 	in 	its 	position statement 	of April 26, is 	that 	this
stipulation 	by 	CSEA and 	DPA 	takes 	effect 	when and 	if 	CSEA
ratifies 	a 	1985 	contractual 	agreement 	negotiated 	between 	the
employer 	and 	CSEA. 	No 	such agreement 	is 	yet 	in 	existence.
On March 29. 	1985, 	the date 	of 	the filing of 	SAFE'S
petition, 	the 	intermittent 	employees 	in question were 	all
2Subsequent to 	the 20 initial 	elections. 	PERB has
conducted 	the 	following 	elections 	covering 	state 	employees:
3 	runoff 	elections 	in units 	6. 	18 and 	19
2 decertification elections 	in units 	6 	and 	10
8 agency fee elections in units 1. 	4. 	10 	(2), 	11. 	16. 	19
and 	20
4

included 	in 	the 	established 	Unit 	#1. 	PERB 	regulations 	clearly
require 	that 	any 	decertification 	petition must 	be 	filed 	for 	the
established 	unit 	and 	that 	proof 	of 	support 	for 	any 	such
petition must 	comprise 	at 	least 	30 	percent 	of 	the 	established
unit. 	PERB had 	no 	choice 	but 	to 	request 	the 	employer 	to
include 	the 	names 	of 	these 	intermittent 	employees 	on 	the
February 	28 	list 	of 	Unit 	#1 	employees 	used 	to 	check 	SAFE'S
proof 	of 	support. 	Assuming 	that 	SAFE 	is 	correct 	in estimating
the 	number 	of 	these 	employees 	at 	2.000. 	the addition of 	their
names 	increases 	SAFE'S unit 	size 	estimate 	from 19.200 	to
21,200.3 SAFE does 	not have 	a 	sufficient 	number 	of valid
proof 	of 	support 	signatures 	to 	comprise 	at 	least 	30 	percent 	of
a unit 	of 	21.200 	employees.4
SAFE also 	takes 	issue, 	in regard 	to 	the 	permanent
intermittent 	employees, 	with 	the 	basis 	on which 	the 	employer
chose 	to 	place 	names 	on 	its 	proof 	of 	support 	list 	of 	employees
submitted 	to 	PERB on April 	18.
PERB Regulation 	32774 	provides, 	in pertinent 	part:
(a) 	Within 20 days 	of 	the 	date 	the
decertification 	petition 	is 	filed 	with 	the
3PERB. 	at 	this writing, 	does 	not 	possess 	information as
to 	the 	exact 	number 	of 	employees 	in 	the 	classifications 	in
question.
4At 	least 	30 	percent 	of 	a 	unit 	of 	21.200 	employees 	equals
6,360 	valid 	signatures.
5

regional 	office, 	the employer 	shall 	file
with 	the 	regional 	office 	an 	alphabetical
list, 	including 	job titles 	or
classifications, 	of 	employees 	in the
established unit 	as 	of 	the 	last date 	of 	the
payroll 	period 	immediately 	preceding 	the
date 	the 	decertification 	petition was 	filed,
unless 	otherwise 	directed 	by 	the Board.
Based 	on 	this 	regulation, 	the 	PERB 	Sacramento 	Regional
Office requested that DPA "[f]ile with this office 	. 	• 	. 	a 	list
of 	names 	of 	all 	persons 	employed 	in 	the unit 	in question as 	of
February 28, 1985." 	(Emphasis 	in original.)
SAFE 	argues 	that 	"employed 	. . . 	as 	of February 	28. 	1985"
means 	"working" 	on that date and 	estimates 	that 	the 	list, 	which
includes 	all 	permanent 	intermittent 	employees 	of 	the 	state,
-
therefore 	contains 	approximately 	2.000 	names 	which 	should 	be
deleted 	because 	these 	employees 	did 	not work
February 28. 	1985. 	SAFE offers no basis for 	its 	figure of
2,000 	names.
The definition of 	"employed" 	has 	never 	meant 	"working" 	in
PERB's 	entire 	history of 	representation case 	handling under 	the
State 	Employer 	Employee Relations Act 	(SEERA).5 	Not 	only 	has
this 	definition not 	been 	limited 	to 	"working," 	it 	has 	included
employees 	not working who 	were 	on 	both 	paid 	and 	unpaid 	status.
PERB 	Regulation 	32728 	provides:
Voter 	Eligibility. 	Unless 	otherwise
directed 	by the Board, 	to 	be 	eligible to
vote 	in an election, 	employees must 	be
employed 	in 	the 	voting unit 	as 	of 	the 	cutoff
5SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et 	seq.
6

date 	for 	voter 	eligibility, 	and 	still
employed 	on 	the 	date 	they 	cast 	their 	ballots
in the election. 	Employees who are ill, 	on
vacation, 	on 	leave of 	absence or 	sabbatical,
temporarily 	laid 	off. 	and 	employees who are
in 	the 	military 	service 	of 	the United 	States
shall 	be 	eligible 	to vote. 	Mailed 	ballots
may 	be utilized 	to 	maximize 	the 	opportunity
of 	such voters 	to cast 	their 	ballots.
PERB 	has 	consistently 	applied 	these 	voter 	eligibility
standards 	to 	lists 	it 	has 	requested 	from employers 	in 	order 	to
verify proof 	of 	support.
Under 	SEERA, 	from the 	initial 	proof 	of 	support 	lists 	and
voter 	lists 	requested 	by PERB 	in advance 	of 	the 	1981 	elections
through 	each 	subsequent 	list 	utilized 	in 	conjunction with
runoff 	elections, 	decertification 	elections 	and 	agency fee
elections, 	"employed" 	has 	included 	all 	employees 	employed 	in
classifications 	contained 	in 	the 	unit 	in question. 6
"Employed" 	has 	consistently defined 	a 	person's 	status 	vis 	a 	vis
the State of California 	(i.e. 	an employee v. 	not an employee),
rather 	than distinguishing whether 	or 	not 	the 	individual 	was
6See. 	for 	example. 	September 	1981 Notice of Runoff
Elections, 	which provided:
All 	civil 	service 	employees 	of 	the 	state who
are 	employed 	in 	the 	job 	classifications
listed 	on 	this Notice 	as 	INCLUDED 	in Unit 	6.
Unit 	18 	or unit 	19 	are 	eligible 	to vote 	in
the runoff election. 	. 	. 	.
The Notice goes 	on to 	enumerate 	the 	specific 	exceptions, 	among
which 	are 	the 	various 	statutory 	exclusions 	and 	conditions
relating 	to 	persons 	holding 	more 	than 	one 	appointment. 	The
Notice 	also 	spells 	out 	the 	conditions 	of 	PERB Regulation 	32728.
cited 	above.
77

actually working, 	was 	on paid 	status 	but 	not working 	or was 	on
unpaid 	status 	as 	of 	the date 	in 	question.
77 Thus, 	an 	employee
included 	on 	a 	PERB-requested 	proof 	of 	support 	or 	voter 	list
might 	have 	been at work on a 	particular 	cutoff day. 	or might
have 	been on paid vacation or 	sick 	leave, 	or might 	have 	been on
various 	sorts 	of unpaid 	status 	(e.g. 	maternity leave, 	medical
leave, 	intermittent status-currently not working, 	etc.).
Specifically with 	regard 	to 	intermittent 	employees, 	then,
the 	consistent 	past 	practice 	under 	SEERA has 	been 	to 	include
all 	such 	employee 	names 	on any proof 	of 	support 	list 	or voter
list 	provided 	by the 	state 	employer 	to 	PERB. 	The 	employer
therefore 	acted 	correctly 	in 	including 	the 	names 	of 	all
intermittent 	employees 	on 	the 	proof 	of 	support 	list 	requested
by PERB 	in the 	instant case. 	This 	practice 	is a 	sound 	one and
is 	based 	solidly 	on 	PERB 	regulations 	and 	past 	practice under
other 	statutes.8 No 	adequate 	justification 	for 	deviation
from 	this 	practice 	in 	the 	instant 	case 	has 	been presented.
Let us 	assume 	for 	the 	sake 	of 	argument, 	however, 	that PERB
were 	to 	look 	at 	intermittent 	employees 	as 	a 	group 	in 	this 	case.
7See 	Directed 	Election 	Orders 	in 	previous 	SEERA 	cases
(e.g.. 	S-OS-5O-S. 	Unit 1; 	S-D-70-S. 	Unit 	12: 	S-D-71-S. 	Unit 10)
a 	l 	of which specify that 	"employed" 	means 	on paid 	or 	unpaid
status 	as 	of 	the 	cutoff 	date 	in question.
8PERB 	also 	administers 	the 	Educational 	Employment
Relations Act 	(EERA), 	codified 	at Government Code 	section 	3540
et 	seq.: 	and 	the 	Higher 	Education Employer 	Employee 	Relations
Act 	(HEERA), 	codified 	at Government 	Code 	section 	3560 	et 	seq.
8

setting up 	and 	applying 	criteria 	to 	determine which 	of 	these
employees 	demonstrated 	an 	established 	interest 	in 	employment
relations 	with 	the 	State 	of 	California.
a
Perhaps we would
conclude 	that 	all 	intermittent 	employees 	who 	had 	not 	worked 	at
least 	several 	days 	in either 	the 	last year 	or 	each of 	the 	last
two 	years 	immediately 	preceding 	the 	filing 	of 	the 	petition 	do
not 	show 	this 	established 	interest 	and 	should 	therefore 	not 	be
included 	on a 	list used 	to verify proof 	of 	support. 	Perhaps we
would 	decide 	upon 	even more 	stringent 	requirements. 	Certainly,
however. 	PERB would 	not 	conclude 	so 	narrowly as 	to 	find 	that
any 	intermittent 	employee who 	had 	not 	worked 	in February 	1985.
regardless 	of 	his 	or 	her work history and 	expectancy of 	future
work, 	should 	be 	excluded 	from the 	list.
It 	is 	helpful 	that DPA has 	provided 	PERB with 	the
information PERB would 	need 	if 	all 	intermittent 	employees 	who
did 	not work 	in February 	1985. 	were 	to 	be 	eliminated 	from the
list. 	As 	of February 28. 	1985 	there were 	2,872 	permanent
9The 	National 	Labor 	Relations 	Board 	has 	distinguished
eligibility 	to vote 	in a 	representation 	election 	from
membership 	in a 	particular unit 	based 	on a 	determination as 	to
which 	employees 	possess 	a 	sufficient 	continuing 	interest 	in
working 	conditions 	to 	entitle 	them to vote. 	(See Daniel
Construction Co. 	Inc. 	(1961) 	133 NLRB 264. 	48 LRRM 1636. 	in
which 	all 	employees 	who worked 	in 	the 	qualifying 	payroll 	period
plus 	those who worked 	30 days within 	the 	last 	12 months 	or
45 	days 	within 	24 	months 	including 	some within 	the 	last
12 months were eligible to vote; 	Juliard 	School 	(1974) 	208 NLRB
153, 	85 	LRRM 1129, 	in which all 	stagehands who worked 	at 	least
five days 	in a 	two year 	period were 	eligible 	to vote.
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intermittent 	and 	2,057 	other 	intermittent 	employees 	employed 	by
the 	State 	of 	California 	in 	job 	classifications 	included 	in
Unit 	1. 	Of 	these. 	956 	permanent 	intermittent 	and 	782 	other
intermittent 	employees 	(total 	1738) 	did 	not work 	in February
1985. 	If 	the names 	of 	all 	1738 were 	to be subtracted 	from the
proof 	of 	support 	list, 	the 	size 	of 	the 	list would 	be 	reduced 	to
21,491 	names. 	SAFE does 	not 	have a 	sufficient 	number 	of valid
proof 	of 	support 	signatures 	to 	comprise 	at 	least 	30 	percent 	of
these 	21,491 names.10	lO
Because 	SAFE'S 	proof 	of 	support 	falls 	short 	even when 	an
unrealistically 	narrow 	standard 	which 	eliminates 	large 	numbers
of 	intermittent 	employees 	from the 	list 	is 	applied, 	there
appears 	to 	be no 	need 	in this 	case 	to 	reach the 	issue of
whether 	some 	intermittent 	employees 	should 	be 	eliminated 	due 	to
their 	lack 	of 	an 	established 	interest 	in 	their 	employment
relations with the State 	of 	California. 	Because 	of 	the 	facts
of 	this 	case, 	it also appears unnecessary to reach the unit
composition 	issues 	raised 	by 	CSEA.
In 	light 	of 	the above. 	SAFE 	is 	directed 	to SHOW CAUSE as 	to
why 	its 	petition 	for 	decertification 	should 	not 	be 	dismissed.
Factual 	assertions 	by 	SAFE must 	be 	supported 	by declarations
under 	penalty 	by 	perjury, 	by witnesses 	with 	personal 	knowledge
of 	the 	facts 	asserted 	therein. 	All 	declarations 	submitted
10At 	least 	30 	percent 	of 	this 	"unit" 	of 	21,491 	employees
equals 	6448 	valid 	signatures. 10

should 	include 	facts 	showing 	the 	basis 	of 	the witness's
personal 	knowledge, 	and should 	indicate 	that 	the witness, 	if
called 	to 	testify, 	could 	competently 	testify about 	the 	acts
asserted. 	If 	the facts asserted are reliant on a writing, 	a
copy of 	the writing must 	be 	attached 	to 	the 	declaration and
authenticated 	therein. 	SAFE'S 	statement 	and 	supporting
materials 	must 	be 	filed with PERB's 	Sacramento Regional 	Office
1031 18th Street, 	Suite 102, 	Sacramento, 	California 95814, 	no
-
later 	than Friday. 	May 24. 	1985. 	Service and proof 	of 	service
on all 	parties 	pursuant 	to 	PERB Regulation 	32140 	are 	required.
By: JANET 	E. 	CARAWAY
Chief, 	Division of Representation
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