Salinas Union High School District (PERB A315E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS UNION HIGH SCHOOL DISTRICT,
Employer,
and
SALINAS VALLEY FEDERATION OF
TEACHERS, LOCAL 1020,
Exclusive Representative.
Case No. SF-UM-588-E
Administrative Appeal
PERB Order No. Ad-315
June 6, 2002
Appearances: Lozano Smith by Kristina A. Markey, Attorney, for Salinas Union High School
District; Law Offices of Robert J. Bezemek by Martin Fassler, Attorney, for Salinas Valley
Federation of Teachers, Local 1020.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Salinas Union High School District (District) of an administrative
determination (attached) by a Board agent granting the Salinas Valley Federation of Teachers,
Local 1020’s (SVFT) unit modification petition seeking to add daily and long-term substitute
teachers to the certificated bargaining unit it represents in the District.
After reviewing the entire record in this matter, including the administrative
determination, the District’s appeal and SVFT’s response, the Board adopts the administrative
determination as the decision of the Board itself consistent with the following discussion.

DISCUSSION
The District’s Appeal
On appeal the District contends that PERB has the discretion to order an election in this
case and should do so. The District argues that Dixie Elementary School District (1981) PERB
Decision No. 171 (Dixie) is not controlling because in Dixie the employer never questioned
majority support, instead focusing on whether the unit, as modified, would be appropriate.
The District argues PERB should follow the two-part test for determining the
appropriateness of an election in the context of a unit modification found in El Monte Union
High School District (1982) PERB Decision No. 220 (El Monte). In El Monte the Board
stated:
The Board's authority to define the appropriate bargaining unit is
sufficiently broad to enable it to include new employees in an
existing unit without holding an election when the requisite
community of interests is present, and the equities dictate such a
conclusion.
The District urges that El Monte establishes two general requirements for ordering unit
modification without requiring an election. First, the "requisite community of interests" must
be present. Second, a balancing of "the equities" must "dictate" adding unrepresented
positions to an existing unit without an election. An election was not held in El Monte because
the employer did not question the majority support of the petitioned-for employees. The
District argues that as a corollary, had the employer questioned majority support, an election
would have been required.
The District is not questioning the community of interest between its full-time and
substitute teachers. Instead, it focuses on its argument that "the equities do not dictate an order
granting unit modification without an election." The District argues the equities include
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consideration of the fact that a large number of employees may be forced into an organization
against their wishes. The District urges that requiring an election whenever large groups of
unrepresented employees are being subsumed into an existing unit is the only way to determine
that employee rights of self determination are not being thwarted.
The District asks the Board to look to the National Labor Relations Act (NLRA)
precedent which supports its argument that an election in this case would be mandatory. The
District equates the NLRA's unit clarification procedure with PERB's unit modification
procedure.
The District argues that when considering a petition for unit clarification, the National
Labor Relations Board (NLRB) usually determines the appropriateness of the proposed unit
and then orders an election. Sometimes, the NLRB may exercise its discretion to accrete a
small group of employees into a preexisting unit without requiring an election. The District
cites federal precedent holding that the NLRB will not approve unit clarifications in the
absence of an election unless the change involves only a very small group of employees.
Baltimore Sun Co. v. N.L.R.B. (2001) 257 F.3d 419, 426-427 [167 LRRM 2850]. The District
notes two basis for the conclusion. First, adding a large group to a preexisting unit calls into
question the majority status of the representative in the acquiring unit. Second, accretion poses
a significant threat to the self determination rights of employees. The District summarizes the
federal standard as reserving accretion without an election for "those cases where there is no
question regarding the petitioned for employees’ desire to organize, and to join with the
petitioning unit."
The District’s final argument is that even with the rebuttable presumption that the
substitute teachers should be in the same unit as their full time counterparts, the substitutes do
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have the option [if justified] of forming their own unit. The District makes this claim to
support its argument that an election should be held, even though it expressly states it does not
claim the substitutes should be in a separate unit.
SVFT’s Response to District’s Appeal
SVFT responds that the Board agent’s certification without an election is supported by
Dixie as the authorization cards submitted by SVFT are unequivocal in the statement of their
wish to be represented by SVFT. The SVFT notes there is no evidence to suggest any doubt as
to the wishes of the substitutes to be included in the SVFT bargaining unit. SVFT also
supports the Board agent's finding that as a 64 percent increase without an election was
approved in Dixie, the less than 20 percent increase in the instant case should not be a barrier
to granting the unit modification without an election.
SVFT argues that because of the presumption that all classroom teachers should be in a
single bargaining unit and because the District does not argue an all inclusive unit is
inappropriate, the presumption must be applied. SVFT disputes the District's assertion that
“PERB has found separate bargaining units comprised solely of substitute teachers to be
appropriate.” SVFT argues the employees in each case cited by the District: (1) were part-
time employees, not substitutes; (2) that the unions representing the full-time employees were
actively opposed to the representation of part-time employees; and (3) the number of part-time
employees was much larger than the number of full-time employees -- all of which would de-
stabilize the existing collective bargaining relationship.
SVFT argues that because of the presumption, PERB’s discretion in this matter is more
limited than that of the NLRB, therefore an election is not warranted.
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Application of El Monte
The parties are in agreement that the unit modification is appropriate. The only
question for the Board is whether the proof of majority support indicated by the cards is
sufficient to certify the new unit through a unit modification proceeding without an election.
While the Board agrees with the District that the two part test in El Monte should be applied,
this application does nothing to alter the outcome of the administrative determination. The
Board agrees with the Board agent that the cards are a sufficient expression of the desire of the
employees and that an election is not warranted. Applying El Monte, the equities do dictate
that the unit modification order should issue without an election.
The District does not dispute the validity of the cards. The District's argument is that
the cards may not reflect the will of the employees and that PERB accepting the cards as a
sufficient showing of support to modify the unit without an election risks the employees’ right
to self determination. The Board disagrees.
The District argued before the Board agent that the employees may not have understood
the significance of the cards. This argument, which was all but abandoned on appeal to the
Board, is the District’s strongest argument. It is possible that cards alone could leave less than
an absolute certainty regarding the desire of employees in the following two respects.
First, only an election can be relied on to truly judge the will of individual employees.
However, employees who signed the cards knew what they were signing. It was a distinct
possibility at the time of signing the cards expressing a desire to be represented by SVFT that
the signatures could result in exactly what happened in this case; placing the substitutes in the
unit without an election. In fact, had the District not objected to the unit modification order
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without an election, this case would not have come before the Board and the unit would be so
modified, without an election.
Second, the substitutes signing the cards opted for SVFT to be the exclusive
representative. The cards do not express a desire as to which unit the employees would be in.
Perhaps some of the substitutes wanted their own unit. On the other hand, with the rebuttable
presumption that all classroom teachers should be in the same unit and with no evidence at all
that the substitutes contemplated a separate unit, the Board has no trouble overcoming this
issue because employees only get to pick whom they want to represent them, if anyone. For
the most part, employees do not get to pick and choose which unit they will be in, at least not
at the expense of the community of interest factors.
Applicability of NLRB Unit Clarification Precedent
The Board declines to apply NLRB unit clarification precedent because the PERB unit
modification procedure, based on differences between the Educational Employment Relations
Act (EERA or Act)1 and the NLRA, is fundamentally different regarding showing of interest.
The NLRA itself does not contain a requirement that any election petitions be accompanied by
evidence of employee interest. The NLRB has administratively imposed a showing of interest
requirement for some petitions. Under the NLRA, an election determines the union’s majority
status; it cannot be determined through an administratively required showing of interest.
(Northeastern University (1975) 218 NLRB 247, [89 LRRM 1862].) Significantly, NLRB unit
clarification petitions need not be supported by a showing of interest at all. (NLRB Statements
of Procedure sec. 101.17.)
1 EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
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Under EERA, the statute itself calls for representation petitions to be supported by
majority support. (See EERA Sec. 3544.) Also, PERB regulations2 specifically contemplate
the Board’s discretion to require proof of majority support for a unit modification petition.
(See PERB Reg. 32781 (e).) These statutory and regulatory differences provide the basis for
declining the District's request that the Board follow federal precedent.
The Board’s discretion to grant the unit modification order without an election is firmly
rooted in PERB Regulation 32786(a) which was relied upon by the Board agent:
(a) Upon receipt of a petition for unit modification, the Board
shall investigate and, where appropriate, conduct a hearing and/or
a representation election, or take such other action as deemed
necessary in order to decide the questions raised by the petition
and to ensure full compliance with the provisions of the law.
Further, as the Board held in El Monte:
…the purpose of the unit modification provisions is to provide a
mechanism whereby positions or classifications may be, among
other things, added to the established unit when a community of
interest exists. By the modification process, the employees in
question are thus able to exercise their right to exclusive
representation and good faith negotiation without the need for
separate units which would derogate the legislative concern over
potential fragmentation of employee groups and proliferation of
bargaining units. To require an election every time a new
position or classification is at issue would have the inevitable
consequence of destabilizing existing employer-employee
relationships contrary to the Act's fundamental purpose, as well
as being financially prohibitive and administratively cumbersome
for the Board. It is within the Board’s discretion to decide under
what circumstances it might consider an election appropriate.
The Act itself sets forth no requirement that an election be
conducted where established units are to be modified.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. and may be found on the Internet at www.perb.ca.gov.
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ORDER
For the reasons set forth above and in the Board agent’s administrative determination,
the unit modification petition is hereby GRANTED. A unit modification order adding daily
and long-term substitute teachers to the Salinas Union High School District’s certificated
bargaining unit shall be ISSUED.
Members Whitehead and Neima joined in this Decision.
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________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS UNION HIGH SCHOOL DISTRICT,
Employer,
and
SALINAS VALLEY FEDERATION OF
TEACHERS, LOCAL 1020, CFT/AFT,
Petitioner.
REPRESENTATION
CASE NO. SF-UM-588-E
ADMINISTRATIVE
DETERMINATION
OCTOBER 22, 2001
This determination finds that an election among substitute teachers to determine
whether they wish to be represented by the Salinas Valley Federation of Teachers, Local 1020,
CFT/AFT, will not be required .
PROCEDURAL HISTORY
On July 31, 2001,1 the Salinas Valley Federation of Teachers, Local 1020, CFT/AFT
(SVFT or petitioner) filed a unit modification petition with the Public Employment Relations
Board (PERB or Board) to add daily and long-term substitute teachers to the certificated
bargaining unit it represents in the Salinas Union High School District (District or employer)
pursuant to PERB Regulation 32781(a).2 The petition indicated that there are 120 substitute
1 All dates herein are in 2001 unless otherwise noted.
2PERB Regulation 32781(a) provides, in pertinent part:
(a) A recognized or certified employee organization may file
with the regional office a petition for modification of its units:
(1) To add to the unit unrepresented classifications or
positions; . . .

________________________
employees in the District, and 680 employees in the established unit. The petitioner submitted
proof of majority support with its petition in the form of authorization cards containing the
following statement:
I, ______________, a substitute teacher in the Salinas Union
High School District, hereby authorize the Salinas Valley
Federation of Teachers, Local 1020, CFT/AFT, to serve as my
exclusive representative in all aspects of my employee-employer
relations with the Salinas Union High School District as provided
under the Educational Employment Relations Act pursuant to
Government Code, Sections 3540-3549.3, inclusive.
The cards contained spaces for signature and date, and also included the following
statements: "This is not a ballot. This is not an application for membership."
PERB issued a determination finding the support to be adequate on August 22.3
The District filed its response to the petition on September 18. The response stated that
the District did not challenge the addition of substitutes to the established unit, but requested
an election "due to the number of employees proposed to be added and the resulting impact on
the District." The District submitted a supplemental response setting forth legal argument in
support of its position on September 28. 	AFT submitted its argument against the request for
an election on October 11.
3PERB Regulation 32781(e) provides, in pertinent part:
(e) If the petition requests the addition of classifications or
positions to an established unit, the Board may require proof of
majority support of persons employed in the classifications or
positions to be added. . . .
PERB typically requires proof of support when the number of employees proposed to be added
constitutes 10 percent or more of the established unit.
2

POSITIONS OF THE PARTIES
The District asserts that an election must be held for several reasons. First, it claims that
the petition is seeking to add several hundred employees to the unit, unlike most unit
modification petitions which concern only a few employees. 	Given this number, the District
asserts that the petition has raised a "question concerning representation which cannot be
resolved through a signed petition."
Secondly, the District cites as precedent two cases under the National Labor Relations
Act.4 These cases hold that the National Labor Relations Board (NLRB) will require a unit
clarification election unless the case involves small groups of employees and particularly
when "employees seeking to join an existing unit could lawfully form their own unit."
Claiming that the large number of substitute employees could lawfully form their own unit
here, and noting that PERB regularly relies on NLRB precedent, the District states that an
election would be required by the NLRB and should therefore by required by PERB.
Third, the District contends that the unit modification process is being used as an "end
run" around the vote requirement for unit creation, possibly forcing unrepresented employees
to be represented without being allowed to vote on the issue. 	Finally, the District asserts that
individuals signing the proof of support document may not have understood its significance
and could make a more educated decision through the election process.
SVFT disputes the District's arguments, asserting that the number of employees to be
added to the unit should not bar granting the unit modification petition, that NLRA precedent
is not applicable in this case, and that there is no factual basis for the District's assertion that
"there is a serious question regarding the desire for representation." 	SVFT cites the
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Educational Employment Relations Act (EERA)5 and PERB precedent6 in support of its
position that PERB should grant the unit modification petition without requiring an election.
ISSUE
The sole issue to be decided is whether PERB should require an election among the
substitute teachers to determine whether they wish to be represented by SVFT.
DISCUSSION
PERB Regulation 32786(a) provides:
(a) Upon receipt of a petition for unit modification, the Board
shall investigate and, where appropriate, conduct a hearing and/or
a representation election, or take such other action as deemed
necessary in order to decide the questions raised by the petition
and to ensure full compliance with the provisions of the law.
PERB considers NLRB precedent where appropriate, but is not bound by it, particularly
when the statutory language being interpreted by PERB has no corollary in the NLRA.7 While
NLRB case law may require a unit clarification election in certain cases where employees are
to be added to a unit, PERB precedent has held otherwise.
4 The Baltimore Sun Co. v. NLRB (2001) 257 F.3d 419, 426-27; NLRB v. Stevens
Ford, Inc. (1985) 883 F. 2d 468 at 473;
5EERA is codified at Government Code Section 3540.1 seq. All references herein are
to the Government Code. Government Code Section 3545(b)(1) provides:
A negotiating unit that includes classroom teachers shall not be
appropriate unless it at least includes all of the classroom teachers
employed by the public school employer, except management
employees, supervisory employees, and confidential employees.
6Peralta Community College District (1978) PERB Decision No. 77 (Peralta); Dixie
Elementary School District (1981) PERB Decision No. 171 (Dixie.)
7See Sweetwater Union High School District (1976) PERB Decision No. 4 (citing Fire
Fighters Union v. City of Vallejo 12 Cal. 3d 608 (1974);Los Angeles Unified School District
(UTLA) (1976) PERB Decision No. 5; and Mount Diablo Unified School District (1977)
PERB Decision No. 44.
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In this case, there is no dispute regarding the appropriateness of the unit modification
requested. Indeed, PERB has long held that all classroom teachers should be included in the
same bargaining unit. (Peralta.) More to the point, the Board in Dixie found that substitute
teachers share a community of interest with regular teachers and are appropriately included in
the same unit.
The petitioner in Dixie sought to add approximately 80 substitute employees to the
established certificated unit of approximately 125 employees, thus increasing the unit size by
64 percent. In finding this modification appropriate, the Board did not require an election but
ordered that
[b]ased on a finding that there has been a sufficient showing of
interest, the requisite number of authorization cards being on file
herein, the unit, as modified above, shall be certified
immediately. (Dixie at p.9.)
In this case, as in Dixie, the petitioner submitted proof that a majority of substitutes
wish to be represented by SVFT in the form of signed authorization cards which are currently
on file in this office. Furthermore, SVFT's petition seeks to add 120 employees to a unit of
680, increasing the unit size by approximately 18 percent.8 Since the percentage of affected
employees here is significantly less than that in Dixie, there is no numerical basis for requiring
an election.
The District argues that adding employees to the established unit through the unit
modification process avoids "the vote requirement for unit creation." This argument is
mistaken. PERB regulation 331909 allows employers in response to an initial representation
8The District has submitted no facts to support its statement that the petition seeks to
add "hundreds" of employees to the established unit.
9PERB Regulation 33190 provides, in pertinent part:
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petition to either request an election or grant voluntary recognition to an employee
organization when proof of majority support has been submitted and no valid intervening
petition is filed. Thus, even when creating new units employee organizations may not be
required to go through the election process.
The District's assertion that employees signing authorization cards may not have
understood their significance is without merit. The information contained on the authorization
card is plainly stated10 and meets PERB's proof of support requirements.11
(a) Unless otherwise directed by the Board, within 15 days
following service of the Board's determination regarding the
adequacy of proof of support, the employer shall file a decision
with the regional office.
……………………………………… .. ….
(c) The employer shall use "Format A" if it has granted voluntary
recognition pursuant to Government Code sections 3544 and
3544.1. As soon as possible, but in no event later than 10 days
from its issuance, the employer shall post a copy of the employer
decision conspicuously on all employee bulletin boards in each
facility of the employer in which members of the unit affected are
employed. The decision shall remain posted for at least 15
workdays.
.……………………………………………..
(d) The employer shall use "Format B" if it has not granted
voluntary recognition. A request for a representation
investigation or hearing to resolve a unit dispute may be raised by
"Format B" or by the employer filing a subsequent petition
pursuant to section 33220.
…………………………………………………
10 See San Juan Unified School District (1995) PERB Decision No 1082.
11 PERB regulation 32700 provides, in pertinent part:
a) . . . proof of employee support for all petitions requiring such
support shall clearly demonstrate that the employee desires to be
represented by the employee organization for the purpose of
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CONCLUSION
For the reasons stated above, it is determined that an election will not be required in
this case. 	A Unit Modification Order adding daily and long-term substitute teachers to the
established unit shall be issued by this office.
Right of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar
days following the date of service of this decision. (Cal. Code Regs., tit. 8, sec. 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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95814-4174
FAX: (916) 327-7960
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, sec. 32135(a) and 32130.)
meeting and negotiating or meeting and conferring on wages,
hours and other terms and conditions of employment.
(b) The proof of support shall indicate each employee's printed
name, signature, job title or classification and the date on which
each individual's signature was obtained. . . .
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A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8,
secs. 32090 and 32130.)
The appeal must state the specific issues of procedure, fact, law or rationale that are
appealed and must state the grounds for the appeal (Cal. Code Regs., tit. 8, sec. 32360(c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay of any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, sec. 32370).
If a timely appeal is filed, any other party may 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 (Cal. Code Regs., tit. 8, sec. 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the regional office. A "proof of service" must accompany each copy of a
document served upon a party or filed with the Board itself (see Cal. Code Regs., tit. 8, sec.
32140 for the required contents and a sample form). The document will be considered
properly "served" when personally delivered or deposited in the first-class mail postage paid
and properly addressed. A document filed by facsimile transmission may be concurrently
served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, sec.
32135(c).)
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Extension of Time
A request for an extension of time in which to file an appeal or opposition to an appeal
with the Board itself must be in writing and filed with the Board at the previously noted
address. A request for an extension must be filed at least three calendar days before the
expiration of the time required for filing the document. The request must indicate good cause
for and, if known, the position of each other party regarding the extension, and shall be
accompanied by proof of service of the request upon each party (Cal. Code Regs., tit. 8, sec.
32132).
Jerilyn Gelt
Labor Relations Specialist
9