Pasadena Area Community College District (PERB A219E)

STATE
	OF
	CALIFORNIA
DECISION
	OF	
THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
PASADENA
	AREA 	COMMUNITY
	COLLEGE
DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION,
Employee
	Organization,
and
INSTRUCTIONAL 	SUPPORT 	SERVICES
UNIT,
Employee
	Organization.
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Case
	Nos. 	LA-R-958
LA-I-106
Administrative
	Appeal
PERB
	Order
	No. 	Ad-219
December 	17, 	1990
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____________________ )
Appearances:	
Howard
	Lawrence,
	Director,
	Organizing,
	for
California
	School
	Employees
	Association; 	Sylvia
	Ryan,
	President,
for 	Instructional
	Support
	Services 	Unit.
Before
	Shank,
	Camilli,
	and 	Cunningham, 	Members.
DECISION
SHANK,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the 	California
School
	Employees
	Association
	(CSEA)
	of
	a
	Board
	agent's
administrative 	determination 	(attached)
	denying
	CSEA's
	motion
	to
disqualify 	the 	Instructional
	Support 	Services 	Unit
	(ISSU)
	from
intervening 	in
	an
	election
	wherein
	CSEA
	is
	seeking 	to
	become
	the
exclusive 	representative 	of
	a
	unit
	comprised 	of
	office
technical/business 	services
	employees
	of 	the
	Pasadena 	Area
Community
	College
	District
	(College 	or 	District).
	In 	reaching
his 	conclusion, 	the
	Board 	agent 	found
	that: 	(1)
	ISSU
	is
	an
employee 	organization within 	the 	meaning 	of 	Government 	Code

section 	3540.l(d); 	(2) 	the 	College 	did 	not 	dominate, 	but 	did
support, 	ISSU; 	and 	(3) 	notwithstanding 	that 	support, 	the 	facts
taken 	as 	a 	whole 	did 	not 	suggest 	interference 	with 	employee 	free
choice 	and 	therefore 	did 	not 	provide 	a 	basis 	upon 	which 	to
invalidate 	ISSU's 	proof 	of 	support. 	We 	affirm 	the 	Board 	agent's
denial 	of 	the 	motion, 	in 	accordance 	with 	the 	discussion 	set 	forth
below.
DISCUSSION
The 	essence 	of 	CSEA's 	appeal 	is 	that 	ISSU 	is 	dominated 	by
the 	employer 	and, 	but 	for 	the 	employer's 	admitted 	improper
conduct, 	ISSU 	would 	not 	have 	qualified 	to 	intervene 	in 	CSEA's
petition. 1 CSEA 	urges 	PERB 	to 	require 	a 	new 	showing 	of 	interest,
not 	tainted 	by 	employer 	misconduct.
PERB 	Regulation 	32380 2 reads, 	in 	pertinent 	part:
The 	following 	administrative 	decisions 	shall
not 	be 	appealable:
1Specifically, 	CSEA 	contends 	that 	ISSU 	is 	dominated 	by 	the
employer 	and 	that 	the 	employer's 	domination 	of 	ISSU 	is 	evidenced
by 	the 	fact 	that: 	(a) 	the 	employer 	provided 	financial 	assistance
to 	ISSU; 	(b) 	ISSU 	was 	formed 	at 	the 	request 	of 	the 	college
president; 	(c) 	all 	meetings 	are 	scheduled 	by 	the 	employer 	since
ISSU 	only 	meets 	on 	paid 	release 	time; 	(d) 	the 	employer 	selects
ISSU 	representatives 	to 	sit 	on 	all 	classified 	standing
committees; 	and 	(e) 	the 	employer 	allows 	only 	ISSU 	a 	seat 	with 	the
college 	board 	of 	trustees 	to 	represent 	classified 	~concerns" 	at
the 	trustee 	meetings. 	CSEA 	also 	contends 	the 	fact 	that 	a
supervisor 	openly 	encouraged 	employees 	to 	sign 	authorization
cards 	for 	ISSU 	calls 	into 	question 	the 	validity 	of 	the
signatures.
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
2

(b) 	Except 	as 	provided 	in 	section 	32200, 	any
of 	the 	following 	interlocutory 	rulings 	which
may 	be 	raised 	when 	the 	case 	as 	a 	whole 	is
appealed 	to 	the 	Board 	itself:
(4) 	A determination 	that 	a 	petitioner's
proof 	of 	support 	is 	adequate 	.
Regulation 	32380 	was 	amended 	on 	March 	25, 	1989, 	to 	add,
inter 	alia, 	subsection 	(4) . 3
In 	Inglewood 	Unified 	School 	District 	(1990) 	PERB 	Order
No. 	Ad-204, 	the 	Board 	noted 	that 	the 	purpose 	of 	PERB 	Regulation
32380(b)(4) 	was 	to 	avoid 	lengthy 	and 	unnecessary 	delay 	in 	the
election 	process. 	In 	that 	case, 	CSEA 	asserted 	that 	the 	proof 	of
support 	gathered 	by 	a 	rival 	union was 	procured 	through 	fraud 	and
misrepresentation. 	Relying 	on 	PERB 	Regulation 	32380(b)(4), 	the
Board 	declined 	to 	entertain 	an 	appeal 	of 	the 	Board 	agent's
determination 	as 	to 	the 	adequacy 	of 	the 	proof 	of 	support.
Similarly, 	in 	this 	case, 	we 	must 	decline 	to 	rule 	on 	the 	merits 	of
CSEA's 	contention 	that, 	but 	for 	the 	employer's 	domination 	of
rssu, 	ISSU 	would 	not 	have 	been 	able 	to 	obtain 	the 	proof 	of
support 	required 	for 	intervention. 	Therefore, 	the 	Board 	agent's
determination 	that 	ISSU's 	proof 	of 	support 	is 	adequate 	will
stand. 4
3Subsections 	(b) (3), 	(b)(4) 	and 	(c) 	were 	also 	added 	at 	that
time.
4Our 	decision 	here 	does 	not, 	however, 	foreclose 	CSEA 	from
challenging 	the 	proof 	of 	support 	determination 	in 	an 	appeal 	to
the 	Board 	after 	the 	election 	has 	occurred.
3

CSEA
	also
	contends
	that
	an
	evidentiary
	hearing
	is
	necessary
to
	demonstrate
	employer
	domination 	through
	financial
contributions.
	The
	Board
	agent
	has
	discretion 	to
	determine
whether
	a
	hearing
	is
	necessary
	in
	a
	representation
	matter.
5 As
CSEA
	did
	not
	request
	a
	hearing
	below,
	we
	have
	no
	record
	upon
which
	to
	determine
	what
	factors
	went
	into 	the
	Board
	agent
1 s
determination
	not
	to
	conduct
	a
	hearing.
6
We
	are
	therefore
unwilling 	to
	second
	guess
	the
	Board
	agent
1 s
	decision
	in
	this
regard.
7
5PERB
	Regulation
	33237
	provides:
(a)
	Whenever
	a
	petition
	regarding
	a
representation
	matter
	is 	filed
	with
	the
Board,
	the
	Board
	shall 	investigate
	and, 	where
appropriate,
	conduct
	a
	hearing 	and/or
	a
representation 	election 	or
	take
	such
	other
action
	as
	deemed
	necessary
	to
	decide
	the
questions
	raised
	by
	the
	petition.
(Emphasis
	added.)
6we
	note
	that
	the
	Board
	agent
	may
	have
	determined
	a
	hearing
was
	unnecessary 	based
	on
	the
	fact 	that
	CSEA
	presented
	no
allegations
	as
	to 	the
	District's
	alleged 	financial 	contributions
to
	ISSU
	other 	than 	those
	allegations 	that
	the
	District
	admits
	in
the 	settlement 	of 	the 	unfair 	practice
	case
	and
	that
	ISSU
	admits
in 	the 	instant
	case.
	The
	Board
	agent 	concluded, 	based
	on
	the
admissions 	of 	the
	parties, 	that
	the
	employer 	involvement
	did 	not
justify
	an
	invalidation
	of
	ISSU 1 s
	intervention.
7we
	note
	that
	the 	unfair 	practice
	procedure
	is
	the
appropriate
	procedure 	for
	litigating
	an 	employer
	domination/
support 	charge.
	Once
	a
	complaint 	issued 	in
	CSEA 1 s
	blocking
charge 	against 	the
	District,
	CSEA
	had
	the 	right 	to
	go
	to 	hearing
and
	litigate
	the 	financial 	contribution 	issue.
	CSEA
	chose,
instead, 	to
	withdraw
	its
	charge with 	prejudice 	in
	exchange
	for
the
	District's
	admissions
	that
	it
	did 	indeed
	violate
	Government
Code
	section 	3543.S(a),
	(b) 	and 	(d) 	by
	certain 	specified 	acts.
By
	settling
	the 	unfair 	practice 	case,
	CSEA
	relinquished
	its
opportunity 	to 	attempt 	to 	procure 	an 	order 	blocking 	the 	election
on
	the 	basis 	that 	the 	District's 	actions
	had
	interfered with
employee 	free 	choice. 
4

Finally,
	CSEA
	asserts 	that
	the
	District
	"continues
	to
	deny
CSEA
	equal 	access
	to
	the
	employees
	by
	providing
	release
	time
	for
ISSU
	meetings
	and
	by
	providing
	ISSU 	a
	seat
	at
	board
	of
	trustees
meetings."
	This
	contention
	is
	ambiguous
	as
	it
	does
	not
	refer
	to
any
	specific
	incidents 	or
	time 	frames.
	In
	the
	February
	21,
	1990
settlement
	agreement 	between
	the
	District
	and
	CSEA,
	the
	District
promised
	to
	cease
	and
	desist
	from
	this
	conduct.
	In
	its
	response
to
	CSEA's
	appeal,
	ISSU
	contends
	that
	it
	has
	not
	been
	granted
	any
release
	time 	nor
	held
	any
	meetings
	on
	campus
	since 	the
	June
	9,
1989
	meeting,
	and
	that
	the
	ISSU
	representative
	stepped
	down
	as
	a
non-voting
	member
	of 	the
	board
	of
	trustees
	in 	the
	fall
	of
	1989.
Assuming
	CSEA
	is
	realleging
	the
	same
	incidents
	addressed
	by
	the
Board
	agent,
	and
	is
	claiming
	the 	alleged 	denial
	of 	equal
	access
had
	a
	bearing
	on
	ISSU's
	ability
	to 	gather
	proof 	of 	support,
	we
are
	precluded
	from
	addressing 	those 	contentions
	by
	PERB
Regulation
	32380(b)
(4).
	If
	CSEA
	is
	contending
	that
	the
	alleged
denial
	of 	equal 	access
	interfered
	with
	employee
	free 	choice,
	we
note
	that
	CSEA
	had 	an
	opportunity 	to
	litigate
	that
	issue
	in
	its
unfair 	practice
	charge
	and 	chose
	to 	enter 	into
	a
	settlement
agreement
	(seep.
	4,
	fn. 	7).
	If
	CSEA
	is
	alleging
	new
	incidents
of 	denial
	of 	equal 	access,
	we
	cannot 	consider 	those 	incidents
here 	as 	they 	are 	raised 	for 	the
	first
	time
	on
	appeal.
	(See
Colusa 	Unified 	School
	District
	(1983)
	PERB
	Decision
	No.
	296a,
pp.
	7-8.)
	Thus,
	for 	the
	above
	reasons,
	we
	reject 	this
	argument
as
	meritless.
5

ORDER
The 	Board AFFIRMS 	the 	administrative 	determination denying
the 	motion 	to 	disqualify 	ISSU 	from 	intervening 	in 	the 	election
and 	REMANDS 	this 	case 	to 	the 	Regional 	Director 	to 	be 	processed 	in
accordance 	with 	PERB 	regulations.
Members 	Camilli 	and 	Cunningham 	joined 	in 	this 	Decision.
6

STATE
	or
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS	
BOARD
PASADENA
	AREA
	COMMUNITY
	COLLEGE
DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee
	Organization,
and
INSTRUCTIONAL 	SUPPORT 	SERVICES
UNIT,
Employee
	Organization.
)
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)
)
) 	Case
	Nos.	
LA-R-958,
LA-I-106
ADMINISTRATIVE
DETERMINATION
July
	6,
	1990
)
)
)
)
)
)
)
)
)
___________________ )
)
)
PROCEDURAL
	HISTORY
Association
	On
	June 	5,
	1989,
	California
	School
	Employees
(CSEA)
	filed
	a
	request 	for 	recognition
	with 	Pasadena 	Area
College
	District
	(College 	or
	District)
	seeking
	to
Community
become
	the 	exclusive 	representative
	of
	a
	unit
	of 	the
	College's
technical/business 	services
	employees.
	A
	copy
	of
	theoffice
request,
	accompanied
	by
	proof 	of 	support,
	was
	filed
	with
	the
Public
	Employment
	Relations
	Board
	(PERB) . 1
Thereafter,
	on
	July
7, 	1989, 	an
	intervention
	was
	filed
	with 	the 	College
	by
Instructional
	Support 	Services 	Unit
	(ISSU).
	A
copy
	of 	the
intervention,
	accompanied
	by
	proof 	of 	support,
	was
	filed 	with
PERB.
1
Notice 	of 	the 	request
	was
	posted
	by
	the 	College, 	pursuan
regulation
	33060, 	on 	June
	21 1
	1989. 	The
	notice 	indicatedto
	PERB
that
	an 	intervention
	must 	be
	filed 	within
	15 	workdays 	of 	posting,
which 	was 	no
	later 	than 	July 	13, 	1989.
t

On
	August 	14, 	1989,
	the
	College
	was
	notified
	by
	letter
	that
both
	CSEA
	and
	ISSU
	had
	filed 	sufficient
	proof
	of 	support; 	the
College
	was
	given
	15
	days
	to
	file
	a
	decision
	pursuant
	to
regulation
	33190.
	On
	August 	28,
	1989,
	the
	College
	filed	
a
request 	for
	an
	election.
	However, 	on
	August 	24, 	1989,
	CSEA
	had
filed
	a
	request
	to
	hold
	in
	abeyanee
	the
	setting
	of
	an
	election
date
	pending
	the
	resolution
	of
	an
	unfair 	practice
	charge
	(LA-CE-
2887) 	which
	it
	had
	filed
	against
	the 	College.
A	
complaint
	issued
	on
	the 	unfair 	practice
	charge
	on
September
	26, 	1989,
	alleging 	that
	the
	College
	had
	supported
	an
employee
	organization,
	ISSU,
	in 	violation
	of
	the 	Educational
Employment
	Relations
	Act
	(EERA),
	by
	providing
	ISSU
	with 	mailing
labels
	and
	printing 	supplies,
	by
	granting 	paid
	release
	time 	for
an
	ISSU
	meeting,
	by
	providing
	a
	return
	address 	to 	the 	College's
Information 	Office,
	and
	by
	the 	fact
	that
	an
	agent 	of 	the
	College
had 	been
	a
	signatory 	to
	an
	ISSU
	flyer.
	In
	a
	pleading
	filed
	on
October
	16, 	1989,
	CSEA
	repeated
	its
	contention
	that
	no
	election
should
	be
	held
	until
	resolution
	of 	the
	unfair 	practice
	complaint.
CSEA
	also 	questioned
	ISSU's
	status
	as 	an 	employee
	organization,
asserted 	that
	ISSU
	would
	not
	have 	been
	able 	to 	gather 	support
without 	the 	paid 	release
	time 	provided
	to
	ISSU, 	and
	finally,
asserted 	that
	"had
	it
	not
	been
	for 	the
	employer
	the 	intervenor
would 	not
	exist.It
The
	unfair 	practice
	complaint
	was
	set 	for 	hearing.
	However,
on 	February 	21, 	1990,
	CSEA
	and
	the 	College 	entered 	into
	a
settlement 	agreement 	in
	which 	the 	College 	admitted 	certain
2

actions 	in
	violation
	of 	the
	unfair	
practice	
provisions 	of
	the
government
	code,
	agreed
	to
	cease
	and
	desist,
	and
	to
	post
	a
notice.
	For
	its
	part,
	CSEA
	withdrew
	the
	unfair 	practice
	charge,
with
	prejudice.
The
	question
	of 	whether
	to
	hold
	the
	election 	in
	abeyance
pending
	resolution
	of
	the
	unfair 	practice
	charge
	was
	resolved
	by
the
	settlement
	agreement
	and
	consequent 	withdrawal
	of
	the
	charge.
However, 	two
	issues 	raised
	by
	CSEA
	in
	its
	letter
	of 	October
	16,
1989,
	reguired 	resolution:
	whether
	ISSU
	could
	have
	obtained 	the
necessary 	support
	without
	the
	assistance
	of 	the 	College,
	and
whethar
	ISSU
	is
	an 	employee
	organization 	within 	the
	meaning
	of
Government
	Code
	section
	3540.l(d)
.
.
On
	April
	9,
	1990,
	ISSU
	filed
	a
	pleading
	which
	addressed
CSEA's
	contentione 	in
	light
	of 	the 	admissions	
by	
the
	District
	set
forth 	in 	the 	settlement
	agreement.
	By
	letter
	dated 	April
	23,
1990,
	ISSU
	was
	directed 	to
	serve 	copies 	of
	its
	April
	9
	pleading
upon
	CSEA
	and
	the
	District,
	who
	were
	given
	10
	days
	after
	service
by
	ISSU
	to
	respond
	and
	to
	submit 	any
	other 	facts
	and
	argument
they
	wished
	to
	have
	considered.
	Only
	CSEA
	responded,
	filing
	on
May
	1, 	1990,
	a
	-motion
	to 	disqualify
	ISSU
	from
	intervention
	..
due
	to
	employer 	domination
	and
	support 	of
	ISSU."
	In
	this
	motion
CSEA,
	expanding
	upon
	its
	earlier
	pleading, 	argues
	that
1
but
	for'
	the 	employer's 	conduct, 	including 	but 	not
limited 	to 	the 	creation, 	administrative 	support,
financial 	assistance, 	support
	and
	domination 	of
	ISSU,
including 	release 	time 	for 	attendance 	at 	organizing
meetings,
	ISSU
	would
	fail
	to 	exist 	as 	an 	alleged
employee
	organization.	
CSEA	
submits 	the 	signatures
collected
	by 	ISSU
	were 	done 	so 	with 	the 	assistance 	and
3

partiality
	of 	the
	District,
	rnd,
	as
	such, 	should
	be
declared 	as
	invalid
	support.
ISSUES
issues:
	This 	case
	requires 	resolution
	of
	the
	following
	1)
whether
	ISSU
	is
	an
	employee
	organization within 	the
	meaning
	of
government
	code
	section 	3540.l(d);
	2)
	whether
	the
	College
dominated
	and/or
	supported
	!SSU;
	and
	3)
	assuming
	illegal
and/or 	support
	has 	been
	demonstrated, 	whether
	domination
dismissal
	of 	ISSU's
	intervention
	is
	warranted.
FhCTS
issues
	Because
	of
	their
	importance
	to 	resolving 	the
presented 	in
	this
	case,
	the
	pertinent
	portions 	of
	the
	settlement
agreement
	entered
	into
	by
	the 	College
	and
	CSEA
	are
	set 	forth
	here
as	
follows:
hearing,
	To
	settle 	this
	dispute 	without
	an
	evidentiary 	the
parties
	agree 	as 	follows:
1.	
time
	The
	District
	admits
	it
	provided
	paid 	release 	for
district
	employees
	to 	attend
	a
	meeting 	where
	intervention
	in
an
	election 	against	
CSEA was
	discussed.
2.	
1989,
	The
	District
	admits
	that, 	prior 	to
	June
	9,
	it
provided
	ISSU
	with 	mailing
	labels.
3.	
mail
	The
	District
	admits
	that
	it
	provided
	ISSU 	a
collection
	box
	for 	the 	purpose 	of
	collecting
	employee
opinions
	on 	whether
	ISSU
	should
	become 	a
	collective
bargaining 	agent.
4.	
of
	The
	District
	admits
	that
	a
	supervisory 	employee
	the
District 	participated 	in
	union
	activities
	as 	an
	elected
	ISSU
Board 	member.
2ISSU,
	as 	an 	intervenor,
	was
	required
	by 	PERB
	regulation
33070(b) 	to 	provide 	proof 	of 	at 	least
	30
	percent 	support 	in 	the
unit
	claimed 	to
	be 	appropriate. 
4

5.	
the
	The
	District
	admits
	that	
as
	a	
result
	of 	conduct
admitted
	in
	paragraphs
	one
	through
	four,
	it
	violated
Government
	Code
	Sections 	3543.5(a),
	3543.S(b)
	and
	3543.S(d).
6.	
shall
	provide
	As 	a
	remedy,
	the
	District
	agrees
	it
	not
labels, 	printing
	services, 	materials, 	labor,
supervisory/management
	support,
	or 	free
	use 	of
	facilities
	to
ISSU.
	The
	District
	agrees
	to
	cease
	and
	desist
	meeting
	and
conferring
	with
	ISSU
	or
	recognizing
	ISSU	
as
	a	
representative
to
	the
	Board
	of
	Trustees.
	The
	District
	agrees
	to 	post
	this
settlement
	agreement
	at
	all
	places
	where
	notices 	to
employees
	are
	customarily 	placed
	for
	a
	period 	of
	30
workdays.
7.	
practice
	By
	this
	agreement,
	CSEA
	withdraws
	the
	unfair
charge
	in
	Case
	No.
	LA-CE-2887
	with
	prejudice.
ISSU
	In
	its
	response
	to
	the
	admissions
	of 	the
	District,
denies
	that
	its
	existence
	was
	made
	possible
	by
	the
	District's
impermissible
	actions.
	ISSU
	does
	not
	dispute
	any
	of
	the
admissions, 	but
	rather 	asserts 	additional 	facts
	District's
relating
	to
	admissions
	one
	through 	four 	as
	set
	forth
	above.
First,
	ISSU
	provides
	rather 	detailed
	information 	concerning
employees
	who
	attended 	the
	June
	9
	meeting,
	including
	a
	comparison
who
	of 	the
	number
	of 	bargaining
	unit
	members
	attended
,
"	
with 	those
than
who
	cards 	supporting
	ISSU. 	ISSU
	contends 	fewer
	half
signed
of 	those 	cards
	were
	from
	persons
	who
	attended 	the 	meeting, 	and
of
	a
that
	most
	of
	its
	support 	cards
	were
	obtained 	as
	a
	result
flyer
	which
	it
	mailed
	to 	unit
	members.
	Further,
	ISSU
	admits
	it
utilized 	labels
	and
	a
	mail
	collection
	box
	provided
	by
	the
3
Included
	among
	ISSU's 	documentary 	support
	was 	a
	copy
	of
	an
"Attendance 	Roster 	for 	6/9/89" 	which
	contains
	57
	signatures 	of
persons 	in 	attendance 	at 	the 	June
	9
	meeting.
	ISSU
	asserts 	those
present 	included
	CSEA's 	Pasadena 	College 	Chapter 	President,
	whose
name
	appears 	on 	the 	"Roster," 	and 	CSEA's
	Director 	of 	Organizing,
whose 	name
	does 	not 	appear. 
5

District,
	but
	argues
	that
	neither 	constituted 	irreplaceable
assistance
	because
	alternatives
	were
	readily 	available 	to
	ISSU.
By
	way
	of
	examples,
	ISSU
	notes
	that
	one
	of
	its
	members
subsequently
	typed
	a
	set
	of
	labels 	in
	one
	evening,
	and
	that
campus
	mail 	could
	have 	been 	used
	for
	collecting
	cards,
	a
	mail
system
	which
	it
	asserts
	has 	been used
	by
	CSEA.
	Finally,
	ISSU
notes
	that
	Donald
	Holthaus,
	the 	supervisor
	who
	was
	an
	ISSU
	board
member
	at
	the 	time,
	and
	whose
	name
	appeared
	on
	the
	ISSU
	flyer,
supervised
	only
	one
	unit
	employee
	during
	the 	period
	when
	cards
were
	collected,
	and
	currently
	supervises
	no
	one
	in 	the
	proposed
unit.
ISSU,"
	ISSU
	also
	submitted
	"An
	Historical
	Background
	of
which
	indicates
	it
	was 	formed
	in
	March
	of
	1978
	with
	a
	membership
of
	technical
	and
	office
	employees,
	including 	supervisors.
4 ISSU
states
	its
	early
	purpose
	was
	to
	•meet 	and
	confer" 	with
	the
•on
	salary
	and
	benefits 	questions, 	to
	provide
	classified	District
representation
	on
	College 	committees, 	and
	to
	serve 	as
	an
informational 	link
	between
	the 	Administration
	and
	the
	classified
staff.u
	ISSU
	asserts 	that
	its
	decision 	to
	seek
	to
	become
	an
exclusive 	representative,
	which
	it
	made
	•in 	late
	June 	1989,"
followed
	a
	series
	of 	events 	including 	the 	following:
	ln 	the
4PERB
	records 	indicate 	other
	classified
	employees
	are
represented
	by
	exclusive 	representatives:
	Teamsters 	Local
	911 	was
certified 	to 	represent 	operational 	support
	employees
	in
	1977 	and
1989. 	The 	Pasadena 	Area 	Community
	College 	Peace
	Officers
Association
	was
	voluntarily 	recognized
	to 	represent
	campus
security 	officers 	in
	1983. 	However,
	elections 	for 	the 	office
technical/business 	services 	unit
	which 	were 	held 	in 	June 	of
	1977
and 	again 	in 	September 	of
	1979
	resulted 	in
	no
	representation;
CSEA
	participated 	in 	both 	elections.
6

r
spring
	of
	1989 	a
	District-wide
	committee
	met
	to
	consider
	changes
in
	health
	care
	benefits.
	ISSU
	members
	felt
	vulnerable	
as	
the
only
	campus
	segment which
	was
	not 	represented 	for
	purposes
	of
collective
	bargaining.
	During
	the
	meetings
	ISSU
	members
discussed
	their
	concerns
	with 	the
	negotiator
	for 	the
	certificated
unit,
	who
	•suggested
	the
	possibility
	of
	ISSU
	becoming
	an
independent
	collective
	bargaining 	agent."
	The
	proposal
	was
"appealing"
	in 	part
	because
	of
	concerns 	about
	the
	cost
	of
Moutside
	union 	dues•
	and
	of 	the 	"negative
	and
	adversarial 	stance
CSEA
	was
	taking 	against 	the
	College
	Administration."
	The
	June
	9
meeting
	was
	held
	"so
	all
	aspects
	of
	collective
	bargaining 	could
be
	presented 	to
	the
	ISSU
	membership."
	ISSU
	asserts 	that
	no
position
	was
	advocated
	at
	the
	meeting,
	and
	that
	an
	informational
flyer
	was
	sent 	to
	members
	following 	the
	meeting
	requesting
	a
	vote
on
	whether
	to
	pursue
	exclusive 	representative 	status.
	This
resulted 	in 	intervention
	by
	ISSU.
CSEA
	supports
	its
	"motion
	to 	disqualify"
	by
	reiterating
	many
of 	the 	facts 	stated
	by
	ISSU.
	CSEA
	also 	asserts 	that
	ISSU's
formation
	was
	requested
	by
	the 	College's 	president 	following 	the
•no
	representation•
	vote
	in
	1977.
	As
	further
	evidence
	of
domination 	of
	ISSU,
	CSEA
	points 	to 	the 	factual
	admissions 	of 	the
District,
	namely,
	that
	without 	cost 	to
	ISSU
	the 	College 	granted
release
	time 	for
	employees
	to 	attend
	ISSU
	board 	meetings,
provided 	printing 	services
	and 	mailing 	labels,
5
and 	allowed
5CSEA
	observes 	that
	ISSU 	would 	not 	be 	capable 	of 	paying 	for
such 	services 	in 	light 	of
	its
	annual 	$1.00 	membership
	fee.
Further,
	it
	asserts 	that 	Teamsters 	Local
	911
	receives
	no
	similar
7

supervisors	
to
	become	
members	
and
	to
	participate
	on
	ISSU's
Board.
6
CSEA
	states
	with
	special
	emphasis
	that
	ISSU
	Board
member
	Donald
	Holthaus	
was	
allowed
	to 	attend 	the
	College's
	Board
of
	Trustees
	meetings,
	and
	was
	actually 	in 	attendance
	in
	that
capacity
	on
	June 	15, 	1989,
	when
	CSEA
	was
	denied
	voluntary
recognition.
In
	contrast 	to
	the
	assistance
	provided
	to
	ISSU,
	CSEA
contends
	that
	the
	College 	permitted
	it
	to 	contact
	employees
during
	rest
	and
	lunch 	breaks
	and
	to
	use 	College
	mail, 	but
	would
not
	grant
	paid
	release
	time 	nor 	provide
	facilities
	free 	of
charge.
	Further, 	the
	College 	did
	not
	offer
	CSEA
	the
	use
	of
duplicating 	or 	printing
	facilities,
	and
	denied
	CSEA 	a
	list
	of
bargaining
	unit
	members.
DISCUSSION
not
	The
	first
	issue
	is
	CSEA's
	allegation
	that
	ISSU
	is
	an
•employee
	organization•
	as 	defined 	by	
Government 	Code
	section
3540.
l(d).
7
The
	precise 	basis 	for 	the
	allegation
	is
	not
	clear.
services 	or 	release
	time 	without
	cost.
6
CSEA
	also
	states 	that
	supervisors 	are
	•encouraged"
	to
become 	ISSU 	members,
	although
	it
	does
	not
	state
	who
	provides
	the
encouragement 	nor 	what 	form
	the
	encouragement
	takes.
7
This
	definition
	reads 	as 	follows:
(d) 	•Employee
	organization"
	means 	any
organization
	which
	includes
	employees
	of
	a
public 	school 	employer 	and 	which
	has 	as
	one
of
	its
	primary 	purposes 	representing 	those
employees
	in 	their 	relations 	with
	that 	public
school 	employer. 	•Employee
	organization"
shall 	also 	include
	any 	person 	such 	an
organization 	authorizes 	to 	act
	on
	its 	behalf.
8

definition
	However,
	ISSU
	appears
	to
	meet
	not
	only
	the
	statutory
of
	employee
	organization,
	it
	also
	falls
	within 	the 	parameters
established
	by
	the
	Board
	in
	the
	lead 	case
	on
	this
	subject,
	State
of
	California
	(Department 	of 	General 	services}
	(1982)
	PERB
Decision
	No.
	228-S.
	Regardless 	of
	whether
	or
	not
	ISSU
	has
	a
formal
	structure,
	it
	clearly 	exists
	•for
	the
	purpose 	of
furthering
	the
	interests
	of
	employees
	by
	dealing
	with
	the
employer
	on
	[matters] 	of
	employer-employee
	relations.a
	State
	of
California,
	supra,
	at
	p.9.
	CSEA's
	allegation
	is,
	therefore,
without 	merit.
The 	next
	issue
	concerns
	CSEA's
	allegation
	that
	the 	College
has 	dominated
	and
	supported
	ISSU.
	It
	is
	axiomatic
	that
	a
	public
school
	employer
	may
	not
	dominate
	an
	employee_
	organization 	or
provide
	support
	to
	one 	employee
	organization
	in
	preference 	to
another.
8 PERB	
and
	its
	predecessor, 	the 	Educational
	Employment
Relations
	Board 	(EERB),
	have 	examined
	a
	wide
	diversity
	of
	such
conduct
	and 	found
	it
	to
	be
	prohibited.
	Azusa
	Unified
	School
District 	(1977)
	EERB
	Decision
	No. 	38
	(violation 	for 	the
	employer
to 	rent
	a
	school
	building 	to
	one
	of
	two
	competing
	organizations
for 	less
	than
	fair
	market
	value);
	AntelQpe 	Valley 	Community
College
	District
	(1979)
	PERB
	Decision
	No. 	97
	(violation 	to 	set
	up
1
Governrnent
	code
	section 	3543.5 	provides, 	in 	relevant 	part:
It
	shall
	be 	unlawful 	for
	a
	public 	school 	employer
	to:
(d) 	Dominate
	or 	interfere
	with 	the 	formation 	or
administration 	of 	any 	employee
	organization, 	or
contribute 	financial 	or 	other 	support 	to
	it,
	or 	in 	any
way
	encourage 	employees
	to 	join
	any
	organization 	in
preference 	to 	another. 
9

an
	employee
	organization purporting
	to
	represent
	classified
employees);
	Sacramento
	City
	Unified School
	District 	(1982)
	PERB
Decision
	No.
	214
	(violation 	to
	form
	and
	confer
	with
	an
organization
	while
	there
	was
	a
	question
	concerning
	representation
pending);
	Clovis Unified School
	District
	(1984)
	PERB
	Decision
	No.
389
	{violation 	to
	provide
	typing,
	stationery,
	and
	release
	time
	to
one
	organization
	but 	not
	to
	a
	rival
	organization).
The
	Board's
	remedies
	for
	such
	violations
	have
	been
	as
diverse
	as
	the
	employer
	conduct
	and
	the
	factual
	context
	in
	which
it
	occurred. 	In
	Sacramento City Unified School
	District,
	supra,
impounded
	ballots
	were
	destroyed
	and
	the
	election
	was
	rerun.
	In
Azusa 	Unified 	School
	District, 	supra, 	the
	district
	was
	ordered
	to
charge
	a
	fair
	market
	rental
	fee
	for 	the
	property
	which
	it
	was
renting 	to
	one
	of 	the
	employee
	organizations.
None
	of
	the 	above-cited 	cases 	are
	directly
	on
	point.
Certain 	decisions 	are
	instructive,
	however,
	notwithstanding
	their
factual 	differences.
	In
	Redwoods 	Community 	College
	District
(1987)
	PERB
	Decision
	No.
	650,
	the
	Board
	held 	that	
the
	district
unlawfully 	aided 	in
	the
	formation
	and
	support
	of
	an 	employee
organization, 	the 	Classified
	Employees
	Council.
	The
	district
	had
allowed 	the 	Council
	to 	act 	in
	a
	representative 	capacity 	for
employees
	at
	a
	time
	when 	a 	CSEA
	Chapter
	was
	the 	exclusive
representative.
	The 	Board
	ordered
	the 	disestablishment 	of 	the
Council.
The
	issues 	in
	Redwoods 	community 	College
	District, 	supra,
were
	set 	entirely 	in 	the 	context 	of 	an
	unfair 	practice 	charge.
10

or
	The
	case
	had
	nothing
	to
	do
	with
	an
	election,
	either	
past
pending.
	lt
	did,
	however,
	involve	
a	
charge
	and
	ultimately,
	a
finding,
	that
	the
	employer 	dominated
	and
	supported
	the
	non-
exclusive
	representative.
	CSEA
	argues
	that, 	just
	as
	employer
domination
	and
	support
	led
	to
	disestablishment 	of
	the
	non-
exclusive
	representative 	in
	Redwoods,
	District
	domination
	and
support 	of
	ISSU
	warrants 	dismissal
	of
	ISSU 1 s
	intervention.
A	
crucial
	distinction
	was
	drawn
	between
	employer
•domination"
	and
	employer
	"support"
	in
	Redwoods.
	Domination
exists
	when
	an
	organization
	is	
directed 	by
	the
	employer
	rather
than 	the
	employees.
	The
	rather
	severe
	remedy
	of
	disestablishment
was
	imposed
	because
	the
	district
	was
	found
	to
	have
	dominated
	and
not
	merely
	supported
	the
	non-exclusive
	representative.
9
in
	CSEA
	correctly
	notes
	that
	supervisory
	participation
	an
organization
	such 	as
	ISSU
	is
	a
	factor 	to
	be
	considered
	in
evaluating 	the 	nature
	end
	extent
	of 	employer
	involvement.
	CSEA
emphasizes
	the
	fact 	that	
a	
supervisor,
	Donald
	Holthaus,
	attended
Board
	of 	Trustees
	meetings 	as
	a
	representative
	of
	ISSU,
	including
the
	meeting
	at
	which
	the 	Trustees 	declined 	to 	recognize
	CSEA.
However,
	supervisory
	participation
	does
	not 	lead
	to
	a
	l2il
il.
(1979)
	finding 	of 	employer 	domination.
	See 	Sierra 	Vista 	Hospital
while
	241
	NLRB
	631,
	100
	LRRM
	1590. 	The
	facts 	asserted
	by
	CSEA,
9The
	decision 	notes 	that· "if 	the 	District
	merely
	interfered
with 	or 	supported 	[the 	Council),
	a
	cease 	and
	desist
	order 	is
appropriate."
	Redwoods 	Community 	College
	District, 	supra,
	at
p.62 	(Proposed 	Decision). 
1 1

in
clearly
	indicative
	of 	supervisory
	participation
	ISSU,
	do
	not
inf
er
	College
	control.
10
president	Similarly,
	the
	fact
	that
	the
	College's
	suggested
twelve
	years
	ago
	does
	not
	advance
	thethe
	formation
	of
	ISSU 	some
argument
	that
	ISSU
	was
	then,
	or
	is
	now
	under
	the
	control
	of, 	or
management.
	In
	sum,
	the
	facts
	alleged
	by
directed
	by,
	College
CSEA
	do
	not 	demonstrate
	the
	kind
	of 	"pervasive
	involvement"
	which
See
has 	been
	found
	to 	constitute
	employer
	domination.
	Antelope
Valley
	Community 	College
	District,
	supra.
	Therefore,
	there
	is
thatinsufficient
	evidence
	to
	support
	CSEA's
	contention
	the
College
	unlawfully
	dominated
	ISSU.
the
However,
	there
	remains
	the 	question
	of
	whether
	College
provided 	unlawful
	assistance
	and
	support 	to
	ISSU. 	The
	District's
complaint
	clearly
admissions
	in 	settlement
	of 	the
	unfair 	practice
provide
	evidence 	of 	support 	of
	ISSU.
	Furnishing
	labels,
	a
collection
	box,
	and
	release
	time
	for
	a
	meeting
	are
	all
	benefits
apparently 	not 	provided
	to
	CSEA.
provided
	to
	ISSU
	which 	were
Such
	assistance
	violated 	the
	requirement	
that 	the
	College 	remain
strictly
	neutral
	when
	there 	is
	a	
question
	concerning
representation.
	However,
	the
	consequence,
	if
	any, 	of 	the
and
	not
	simply
	their 	legality,
	must
	also
	be
District's
	actions,
determined.
	Just
	as 	not
	all
	unlawful 	conduct
	will
	provide
	a
School
basis 	for 	rerunning
	an
	election
	(San
	Ramon
	Valley Unified
10
Supervisory 	participation
	which 	may
	indicate 	that 	the
employer 	favors 	one 	organization 	over 	another
	is
	a
	factor 	to
	be
considered 	later 	in 	this 	determination.
12

District
	(1979)
	PERB
	Decision
	No.
	111),
	not
	all
	unlawful 	conduct
requires 	invalidation
	of 	proof
	of 	support.
11
CSEA's
	assertions
	concerning
	the
	consequences
	of
	the
District's
	actions
	are
	two-pronged:
	First,
	CSEA
	asserts
	that
	"but
for.,
	the
	District,
	ISSU
	would 	not
	exist.
	As
	noted 	above,
	CSEA
has
	failed
	to
	offer 	sufficient
	evidence
	which
	confirms
	College
domination
	or 	control
	of
	ISSU,
	therefore, 	there 	is
	no
	basis
	upon
which
	to
	conclude
	that
	ISSU's
	very
	existence
	is
	dependent
	upon
the
	District.
CSEA
	also
	contends
	the
	proof 	of
	support
	was
	collected
	by
is,
	ISSU
	"with
	the 	assistance
	and
	partialityN
	of 	the
	College
	and
therefore, 	invalid.
	CSEA
	has
	not
	identified
	the
	precise 	basis
for
.this
	alleged
	invalidity,
	but
	rather
	seems
	to
	suggest
	that
	it
is 	the 	inevitable
	result
	of
	College
	assistance.
	The
	evidence,
however, 	does
	not 	support
	such
	a
	conclusion,
	for 	there
	is
	no
basis 	to
	conclude
	that
	the 	"practical" 	assistance,
	such
	as
	the
labels
	and
	the
	collection
	box,
	made
	any
	significant 	difference
	to
ISSU.
12
Beyond
	the 	question 	of 	the 	value
	to
	ISSU
	of 	the
	tangible
College 	assistance
	is
	the 	question 	of 	whether
	the
	District's
11
The
	test
	here
	is
	analogous
	to 	that
	used
	when
	investigating
a
	blocking 	charge,
	which
	is
	whether
	the 	conduct
	"will
	so
	effect
the 	election
	process 	as
	to 	prevent 	the
	employees 	from
	freely
selecting 	their 	representatives.•
	Jefferson 	School
	District
(1979)
	PERB
	Decision
	No.
	Ad-66.
12
It 	is	
not
	PERB
	practice 	to 	reveal 	the 	extent 	of 	the 	proof
of 	support 	submitted 	by
	either
	a
	petitioner 	or
	an
	intervenor.
	In
this 	case,
	however,
	ISSU
	revealed 	the
	number
	of 	cards 	which
	it
submitted 	in 	its
	pleading 	filed 	April 	9, 	and
	that
	number 	was
	well
in 	excess 	of 	the
	30
	percent 	needed 	for 	filing
	an
	intervention.
13

conduct
	inhibited
	the
	employees'
	ability
	freely 	to
	decide 	whether
to
	support
	ISSU. 	The
	answer
	to
	this
	question 	requires 	evaluation
of
	the
	totality
	of
	the
	facts.
One
	fact
	which
	is
	emphasized
	by 	CSEA
	is
	the
	longstanding
	and
apparently
	amicable
	relationship
	between
	the
	College
	and
	ISSU.
In
	the
	absence
	of
	domination
	of
	ISSU
	by
	the
	District,
	such
cooperation
	was
	not
	prohibited
	prior
	to 	the 	period
	when
	the
question
	concerning
	representation 	arose.
	Azusa 	Unified School
District,
	supra.
	The
	fact
	that
	a
	cooperative
	relationship
existed
	long
	before
	CSEA's
	current 	organizing
	effort
	not
	only
fails
	to 	support
	CSEA's
	argument,
	it
	militates
	against
	it.
13
CSEA
	also
	relies
	heavily
	on
	the
	participation
	of
	Donald
	Holthaus
in 	the
	affairs
	of
	ISSU,
	including
	his 	representation
	of
	ISSU
	at
College
	Board
	of 	Trustees 	meetings.
	Yet
	there
	is
	no
	allegation
of
	pressure 	or
	coercion 	of
	any
	sort
	by
	Holthaus
	among
	those 	with
whom
	he
	was
	in
	a
	position 	to 	influence.
	Indeed,
	CSEA
	has
	not
disputed
	ISSU's
	contention
	that
	he
	supervised
	only
	a
	single 	unit
employee
	at
	the
	time 	support
	was
	collected.
	The 	mere
	fact 	of 	his
presence
	as
	a
	supporter 	of,
	and
	active 	participant
	within
	ISSU
14
does
	not, 	without
	more,
	provide 	evidence
	that
	employees 	were
13
These
	facts
	are 	usefully 	contrasted 	to 	those 	in
	Sacramento
City 	Unified 	School
	District,
	supra,
	where
	the 	non-exclusive
representative
	came
	into 	existence
	at
	the 	behest 	of 	the 	employer
at
	approximately 	the
	same
	time 	as 	the
	rival
	organizations
	filed
petitions 	for 	representation.
14
EERA
	does 	not 	prohibit 	supervisory 	participation 	in 	an
employee
	organization, 	although 	section
	3545(c)
	prohibits
	a
negotiating 	unit 	of 	supervisors
	from
	being 	represented
	by
	the
same
	organization
	which
	represents 	rank-and-file 	employees.
14

unduly
	pressured 	or 	influenced
	to
	support
	ISSU.
	See
	NLRB
	y.
	San
Antonio Portland
	cement
	co,,
	611
	F2d
	1148,
	103
	LRRM
	2631 	(CA
	s,
1980).
The
	facts
	presented
	here,
	taken	
as
	a	
whole, 	simply
	do
	not
suggest
	interference
	with
	employee
	free
	choice.
	Thus,
	there
	is
no
	basis
	upon
	which
	to
	invalidate
	ISSU's
	proof 	of 	support.
For
	the
	foregoing
	reasons,
	CSEA's
	motion
	to
	disqualify
	ISSU
is
	denied.
	The
	College
	filed
	a
	timely 	request 	for
	an
	election
pursuant 	to
	PERB
	regulation
	33190, 	and
	both
	CSEA
	and
	ISSU
	have
met
	the
	requirements 	for 	appearing
	on
	the
	ballot.
	Accordingly,
if
	an
	election 	shall
	be
	conducted
	to
	determine 	the
	organization,
any,
	to
	be
	certified
	as
	the 	exclusive
	representative
	of
	the
	unit
of
	office
	technical/business 	services
	employees.
	A
PERB
representative 	will 	contact 	the
	parties
	shortly 	to 	discuss
	the
mechanics
	of 	the 	el~ction.
Riaht
	of
	Appeal
To	
the
	extent 	that 	this 	determination
	finds
	the
	proof
	of
support 	submitted
	by 	ISSU
	to
	be
	adequate,
	it
	is
	not
	appealable.
I'
•
As
	to
	any
	remaining
	issues,
	an
	appeal
	to
	the
	Board
	itself
	may
	be
made
	within 	ten
	{10)
	calendar
	days
	following 	the 	date 	of
	service
of
	this
	decision
	(PERB
	regulation
	32360).
	To
	be
	timely
	filed,
the 	original
	and
	five
	(5)
	copies
	of
	any
	appeal
	must 	be
	filed
	with
the
	Board
	itself
	at 	the 	following 	address:
MEMBERS,
	PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
1031
	18th 	Street, 	Suite
	200
15
PERB
	regulation 	32380(b) (4).
15

Sacramento,
	CA
	95814-4174
considered
	received
	A
document
	is
	"filed"
	when
	actually 	before
the 	close
	of
	business 	(5:00
	p.m.)
	on
	the
	last
	day
	set
	for
	filing,
II
	or
	when
	sent
	by
	telegraph 	or
	certified
	or
	Express
	United
States
	mail,
	postmarked
	not
	later
	than
	the
	last
	day
	set
	for
filing
	...
•
	(regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	shall
	apply.
The
	appeal
	must
	state
	the
	specific 	issues
	of
	procedure,
law
	or
	rationale
	that
	are
	appealed
	and 	must
	state
	the
fact,
grounds
	for 	the
	appeal
	(regulation
	32360(c)).
	An
	appeal
	will
	not
automatically
	prevent
	the
	Board
	from
	proceeding
	in
	this
	case.	
A
of
	any
	activity
	may
	file
	such
	a
	request
	with
party 	seeking
	a
	stay
its
	administrative
	appeal,
	and 	must
	include
	all
	pertinent
	facts
and
	justifications
	for 	the
	request 	(regulation
	32370).
may
	If
	a
	timely 	appeal
	is
	filed,
	any
	other 	party
	file
	with
the
	Board
	an
	original
	and
	five
	(5)
	copies 	of
	a
	response
	to
	the
appeal 	within 	ten
	(10)
	calendar
	days
	following 	the 	date 	of
service
	of 	the 	appeal
	(regulation
	32375).
service
also
	All 	documents
	authorized
	to
	be
	filed
	herein
	must 	be
•servedN
	upon
	all
	parties 	to
	the 	proceeding
	and
	o~
	the
	Los
Angeles
	regional 	office.	
A	
"proof 	of
	serviceM 	must 	accompany
with 	the
each 	copy 	of
	a
	document
	served
	upon 	a
	party 	or 	filed
Board
	itself
	(see 	regulation
	32140
	for 	the 	required 	contents
	and
a
	sample 	form). 	The 	document
	will
	be 	considered
	properly
16

deposited
•served"
	when
	personally 	delivered 	or
	in
	the
	first-
class
	mail
	postage 	paid
	and
	properly 	addressed.
Charles
	F.
	Mcclamma
Labor
	Relations
	Specialist
:::-::z
	... - -
Charles
	F.
	Mcclamma
Labor
	Relations
	Specialist
17