Ventura County Community College District (PERB A110EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VENTURA 	COUNTY 	COMMUNITY
COLLEGE 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	VENTURA 	COUNTY
COLLEGE 	DISTRICT 	CHAPTER 	#666
Certified 	Representative,
APPELLANT,
and
VENTURA 	COUNTY 	COMMUNITY
COLLEGE 	DISTRICT 	CLASSIFIED
EMPLOYEES 	ASSOCIATION, 	Local 	690,
SEIU, 	AFL-CIO,
Interested 	Party.
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) 	Case 	Nos: 	LA-R-156A,
D-73
LA-R-156B,
D-74
PERB 	Order 	No. 	Ad- 	110a
Administrative 	Appeal
July 	28,1981
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____________________ )
Appearances: 	Maureen 	C. 	Whelan, 	Attorney 	for 	California 	School
Employees 	Association.
Before 	Jaeger, 	Moore 	and 	Tovar, 	Members.
DECISION
The 	California 	School 	Employees 	Association 	(hereafter 	CSEA)
appeals 	from 	determinations 	by 	the 	Los 	Angeles 	regional 	director 	of
the 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board) 	to
deny 	CSEA's 	motion 	to 	dismiss 	the 	decertification 	petitions 	and 	to
direct 	the 	decertification 	election. 	CSEA also 	moved 	that 	the 	Board
issue 	a 	stay 	of 	the 	decertification 	election, 	which 	this 	Board
ordered 	on 	May 	22, 	1981. 	After 	considering 	the 	entire 	record 	in
light 	of 	the 	appeal, 	the 	Board 	has 	decided 	to 	affirm 	the 	regional

director's
	findings
	and
	conclusions
	and
	affirm
	her
	administrative
determinations.
ORDER
The
	Board
AFFIRMS
	the 	determinations 	of 	the 	regional
	director,
DENIES
	the 	appeal,
	and
	VACATES 	PERB
	Order
	No.
	Ad-110.
By:	
Barbara
	D.
	Moore,
	Member
Member 	Tovar
	dissenting:
I
	dissent.
	No
	election
	in
	this
	unit
	should
	be
	held, 	or
exclusive 	representative
	certified,
	because
	there
	is
	reason 	to
believe 	that
	as
	many
	as
	50
	to
	80
	employees
	who
	would 	be
eligible
	to
	vote
	have
	been
	arbitrarily
	and
	improperly
	excluded
from
	the
	election
	and
	thus
	denied
	their 	statutory 	right 	to
	vote.
FACTS
There 	has 	been 	no
	hearing 	in
	this
	matter,
	and
	complete
evidence
	is
	therefore
	not
	available
	from 	a
	formal
	record.
However,
	certain
	basic
	facts
	can 	be
	gleaned
	from
	representation
documents
	filed
	with
	PERB
	in
	this
	matter.
PERB
	files
1
indicate 	that
	CSEA
	was
	certified
	as
	exclusive
representative
	in
	clerical/technicial
	and
	operations
	and
1These
	include 	the
	original 	certification
	of
	CSEA,
	the
decertification 	petitions
	of 	Service
	Employees
	International
Union, 	Local 	690 	(SEIU) r 	CSEA's
	unit 	modification
	petition,
	the
2

support
	units
	in
	May
	1977.
	The
	principal
	problem
	in
	this
	case
involves 	the
	clerical/technical 	unit,
	which
	was
	described
	by
listing
	the
	classifications
	in
	it.
	In
	March
	1981,
	SEIU
	filed
	a
decertification 	petition
	in
	this
	unit.2	
In
	April,
	after
SEIU's
	decertification 	petition
	had
	been
	verified,
	the
	CSEA
attempted
	to
	file
	a
	unit
	modification 	to
	create 	five
	units
	from
the
	existing
	two.
	The
	PERB
	regional
	director 	rejected
	CSEA's
unit
	modification
	petition
	as 	untimely
	and
	directed
	an
election.
	In 	the 	course 	of
	pre-election
	procedures,
	it
	became
known
	that
	there
	were
	approximately
	80-85 	employees
	in
classifications
	which 	were
	created
	sometime
	after
	May
	1977 	and
therefore
	are
	not
	literally
	within 	the
	list
	of
	classifications
which
	described 	the
	existing 	unit.
	Approximately
	50
	of 	these
employees
	are 	in 	the
	new
	classifications
	of
	either
	director's
secretary
	or
	administrative 	secretary.
	There
	are
	indications
that
	these
	employees
	may
	not
	be
	new
	but
	have 	been
	unit
employees
	from
	the
	start
	in 	another
	secretarial
classification.
	As
	indicated, 	there
	is
	no
	record
	which
	would
indicate
	whether
	their 	duties
	have 	changed
	at
	all
	in
	their
	new
classification,
	as 	the
	reclassification
	may
	merely 	have
resulted
	from
	a
	desk
	audit.
pre-election
	list
	of
	employees, 	the
	unit 	modification
	petition
signed	
by	
the 	employer.
2
rt
	also 	filed
	a
	decertification 	petition
	in 	the
operations/support 	services 	unit.
	There 	appear 	to
	be 	two 	new
classifications
	in 	that 	unit. 
3

For
	unexplained
	reasons,
	the
	exclusive
	representative,
CSEA,
	had
	never
	filed
	a
	unit
	modification
	petition
	to
	update
the
	unit 	description
	by
	adding
	these
	new
	classifications.
	A
unit
	modification
	petition
	for
	this
	purpose
	was
	filed
	with
	PERB
on 	March
	23rd
	as
	a
	pre-election
	matter.
	However,
	this
	petition
was
	signed 	only
	by
	the
	employer;
	CSEA
	did
	not
	sign
	it,
apparently
	preferring 	to
	pursue
	its
	unit
	modification
	request
to
	create 	five
	units,
	which
	also 	called
	for
	unit
	placement
	of
the
	new
	classifications.
	Lacking
	CSEA's
	sponsorship,
	this
petition
	to
	update
	the
	unit
	was
	never
	processed,
	presumably
because
	it
	was
	regarded 	as
	a
	circumstance
	requiring
	a
	petition
pursuant 	to
	PERB
	Rule
	3326l(a).
3	
As
	noted, 	the
	PERB
	regional
3pERB
	Rules
	are 	codified
	at
	California
	Administrative
Code,
	title
	8,
	section
	31000
	et
	seq.
	PERB
	Rule
	3326l(a)
provides:
(a) 	A
recognized 	or
	certified
	emeloyee
organization
	may
	file
	with 	the
	regional
office
	a
	petition
	for
	unit 	modification
pursuant 	to
	Government 	Code
	section3541.3(e):
	(Emphasis
	added.)
(1) 	To 	add
	to
	the
	unit
	unrepresented
classifications
	or
	positions
	which
	existed
prior 	to 	the 	recognition
	or
	certification
	ofthe
	current 	exclusive 	representative 	of 	the
unit,
	provided 	such
	petition 	is 	filed 	at
least
	12 	months
	after
	the 	date 	of 	said
recognition 	or
	certification,
	except 	as
provided 	in 	subsection
	(2) 	below;
(2) 	To 	add
	to 	the 	unit 	unrepresented
classifications
	or 	positions
	which 	were
included 	in
	an
	original 	request 	for
recognition 	or 	intervention, 	but 	disputed 	as
4

director
	also 	rejected
	CSEA's 	own
	unit
	modification
	petition.
Instead,
	the
	regional
	director
	directed
	the
	decertification
election
	to 	proceed, 	excluding
	all
	employees
	in 	the
	new
classifications
	who
	had
	been
	omitted
	from
	the
	unit
	through
	the
above-described
	failure 	to	
update 	the
	unit 	description.
	No
effort
	apparently
	was 	made
	to
	determine
	whether
	the
	employees
in 	the
	new
	classifications
	were
	new
	employees
	or,
	if
	not,
whether
	they
	performed
	different
	duties
	when
	their
classification
	was
	changea.4
to
	management,
	supervisory
	or
	confidential
status,
	provided
	a
	written
	agreement
	of
	all
parties
	to
	submit
	the 	disputed
classifications
	or
	positions
	pursuant
	to
this
	Section
	33261 (a) 	(2) 	was
	filed
	with 	the
regional
	office 	prior
	to 	recognition
	or
certification
	of
	an
	exclusive 	representative
in 	the
	unit
	in 	question;
(3) 	To 	add
	to
	the
	unit
	new
unrepresented
	classifications
	or
	positionscreated 	since 	recognition
	or
	certification
of 	the
	current 	exclusive 	representative;
(4) 	To
	divide
	an
	existing 	unit 	into
two
	or
	more
	appropriate 	units;
(5) 	To
	consolidate
	two
	or
	more
established 	units 	into
	one
	appropriate 	unit,
provided
	neither 	of 	the 	conditions 	of
Government 	Code
	section
	3544.7(b)
	exist
	inany
	of 	the
	units 	to
	be
	consolidated.
	The
"window
	period" 	provided 	for 	in
	GovernmentCode
	section
	3544.7(b)
	(1)
	is
	defined 	in
Section
	33020
	of 	these 	regulations.
4Employees
	in
	some 	new
	classifications
	were
	apparently
permitted 	to 	vote.
	These
	classifications
	were 	types 	of
instructional 	aides; 	e.g. 	Instructional
	Aide
	II: 	Agricultural
5

DISCUSSION
The
	PERB
	has
	been
	charged
	by
	the
	Legislature
	with
	the
responsibility
	and
	trust
	of 	carrying
	out
	the
	provisions
	of
	the
Educational
	Employment
	Relations
	Act
	(hereafter
	EERA).
	The
ability
	of
	all
	employees
	to
	participate
	in 	the
	selection
	of
	an
exclusive
	representative
	to 	represent
	them
	in
	their
	employment
relations
	with
	their
	employer
	is
	fundamental
	to
	this 	statutory
5
scheme.
	Indeed, 	the
	Legislature
	endowed
	PERB
	with
	ample
powers
	over
	representation 	matters,
	in 	order 	to 	rule
	on
	the
appropriateness 	of 	negotiating 	units
	and, 	in 	conducting
representation
	elections,
	to 	carry 	out
	this
	mission.6
Mechanic;
	Instructional
	Aide
	II:
	Data
	Processing,
	etc.
Apparently 	the
	regional
	director
	decided
	that
	these
	were
	not
new
	classifications
	because
	other
	classifications
	of
Instructional
	Aides
	II
	were
	in 	the
	original 	unit 	description.
5
Government
	Code
	section
	3540
	et
	seq.
	EERA
	section 	3540,
stating
	the 	purpose
	of
	the
	statute,
	provides, 	in
	pertinent 	part:
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
	schoolemployees
	to 	join 	organizations 	of
	their
	own
choice, 	to
	be
	represented
	by
	such
organizations 	in
	their 	professional
	and
employment
	relationships
	with 	public 	school
employers, 	to
	select
	one 	employee
organization
	as 	the 	exclusive 	representative
of 	the
	employees 	in
	an
	appropriate 	unit,
	and
to 	afford 	certificated
	employees 	a
	voice 	in
the 	formulation 	of 	educational 	policy
•...
6
several 	sections 	are 	indicative 	of 	the 	powers 	granted 	to
6

In 	this 	case, 	information 	has 	come 	to 	the 	attention 	of 	the
PERB 	in 	the 	normal 	course 	of 	processing 	a 	representation
petition 	which 	indicates 	that 	there 	may 	be 	a 	substantial 	number
of 	employees 	who 	have 	been 	in 	the 	unit, 	and 	who 	still 	should 	be
PERB 	to 	be 	exercised 	in 	carrying 	out 	its 	mission. 	For
example: 	Section 	3541.3 	empowers 	PERB:
. 	. 	. 	. 	. 	. 	., 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. .
(e) 	To 	establish 	by 	regulation 	appropriate
procedures 	for 	review 	of 	proposals 	to 	change
unit 	determination.
. 	. 	. 	. 	. 	. . 	. 	. 	. . . 	. 	.. 	. . . . . . . .
(1) 	To 	decide 	contested 	matters 	involving
recognition, 	certification, 	or
decertification 	of 	employee 	organizations.
(n) 	To 	take 	such 	other 	action 	as 	the 	board
deems 	necessary 	to 	discharge 	its 	powers 	and
duties 	and 	otherwise 	to 	effectuate 	the
purposes 	of 	this 	chapter.
Section 	3544.5 	calls 	for 	PERB 	to 	investigate 	and 	decide,
upon 	presentation 	of 	a 	petition, 	questions 	of 	representation
and 	to 	determine 	appropriate 	units.
Section 	3544.S(d) 	directs 	PERB, 	upon 	presentation 	of 	a
decertification 	petition 	in 	an 	appropriate 	unit, 	to 	obtain
information 	from 	the 	employer 	necessary 	to 	carry 	out 	its
responsibilities 	in 	representation 	matters.
Section 	3544.7 	directs 	the 	PERB, 	upon 	receipt 	of 	a
decertification 	petition, 	to 	conduct 	such 	inquiries 	and
investigations 	or 	hold 	such 	hearings 	as 	it 	shall 	deem 	necessary
in 	order 	to 	decide 	the 	questions 	raised 	by 	the 	representation
petition.
7

in
	the
	unit,
	but
	who
	are
	being
	arbitrarily
	disenfranchised.?
While
	PERB
	need
	not
	initiate
	a
	thorough
	search 	or
	investigation
for 	unrepresented
	employees
	whenever
	it
	receives
	a
	petition,
	it
should 	not
	close
	its
	eyes
	to
	evidence 	of 	the
	presence 	of
employees
	who
	should
	be
	voting
	in
	the
	unit
	when
	confronted
	with
it,
	as
	it
	has
	been
	in
	this
	case.
	On
	the
	contrary,
	PERB's
	duty
is
	to 	investigate
	or 	conduct
	a
	hearing.
	If
	there
	is 	arbitrary
disenfranchisement,
	PERB
	should
	exercise
	its
	powers 	and
	refuse
to 	conduct
	an
	election,
	and
	refuse 	to
	certify
	an
	exclusive
representative
	in
	a
	unit
	which
	is
	patently 	inappropriate.
In
	this
	case,
	both
	the
	unit
	modification
	petition
	signed 	by
the
	employer 	and 	CSEA's
	unit
	modification
	petition,
	although
rejected
	for 	other 	reasons:
	state
	facts 	indicating
	the
existence 	of
	employees
	who
	will
	be
	denied 	the
	right 	to 	vote.
The
	role 	of
	a
	labor
	board 	in
	this
	type
	of
	situation
	was
	well
described
	by
	the
	U.S.
	Circuit
	Court 	of
	Appeals 	as 	follows:
The
	interest
	of
	a
	rank-and-file
	worker
	in
selecting
	an 	economic
	representative
	having
the
	power
	to
	fix
	wages 	and 	working
conditions
	is
	no
	less
	important 	than
	a
citizen's 	interest
	in
	selecting
	a
	political
representative.
	The
	National
	Labor
Relations
	Act
	vests
	the
	Board
	with
discretionary 	authority 	to
	conduct
	a
	fair
election--fair
	for
	individual
	employees, 	as
well 	as 	for 	the 	Company
	or 	for 	the
	Union.
7
rt 	is 	quite 	possible 	that
	these
	employees 	could
	affect
the
	results
	of 	the
	election, 	since 	these
	50-80 	employees
comprise 	a
	substantial 	proportion 	of 	the 	approximately
	186
employees 	who 	were
	considered
	eligible.
8

The
	Board
	abuses
	its
	discretion
	when
	it
knowinglfi
	allows
	eligible
	em
1
Io
1
ees
	to
	be
d1sfranc
	1sed
	or
	when
	1t
	fa1 	s 	o
investigate
	the
	eligibilita
	of 	disfranchised
employees
	whose
	votes
	woul
	change
	the
results
	of
	an
	election
	to
	decide
	upon 	a
bargaining 	agent.
	(Emphasis
	added.)
Shoreline
	Enterprises
	v.
	NLRB
	(5th
	Cir.
1959) 	[43
	LRRM
	2407].
Under
	the 	circumstances 	of
	this
	case,
	the
	regional
	director
should
	have
	investigated 	to
	determine
	whether
	the
	unit
	proposed
by
	the
	decertification 	petition 	is
	inappropriate
	because
	it
fails
	to
	include
	eligible
	employees.
9