Decision A500E – Pasadena Area Community College District

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) Interlocutory appeals are a subset of administrative appeals involving controlling issues of law the resolution of which will materially advance case resolution. (PERB Reg. 32200.) For that reason, “in most cases it is appropriate for a Board agent certifying an interlocutory appeal to the Board itself to pause activity in the case pending the Board’s resolution of the issue(s) on appeal.” (Regents of the University of California (San Francisco) (2023) PERB Order No. Ad-499-H, p. 8.) (p. 5, fn. 5.)

Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in finding “that electronic, non-original signatures may be used for proof of support for decertification petitions under PERB Regulation 32700(d)(5).” The Board reversed the AD because the Board agent misconstrued the applicable regulation on proof of support. (p. 6.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) Interlocutory appeals are a subset of administrative appeals involving controlling issues of law the resolution of which will materially advance case resolution. (PERB Reg. 32200.) For that reason, “in most cases it is appropriate for a Board agent certifying an interlocutory appeal to the Board itself to pause activity in the case pending the Board’s resolution of the issue(s) on appeal.” (Regents of the University of California (San Francisco) (2023) PERB Order No. Ad-499-H, p. 8.) (p. 5, fn. 5.)

When appealing an administrative determination, an appellant must show that the challenged decision departs from the Board’s precedent or regulations. (City and County of San Francisco (2022) PERB Order No. Ad-497-M, p. 15.) (p. 6.)

So long as there is no contract bar in effect, EERA allows a decertification petitioner the right to: (a) augment the proof of support it filed in conjunction with a pending petition; or (b) file a new petition if its initial petition was withdrawn or dismissed for insufficient proof of support. (American Indian Model Schools (2018) PERB Order No. Ad-468, pp. 1-2 [where petitioner claimed PERB denied it the opportunity to cure its proof of support, issue was moot because petitioner simply filed a new petition to the same effect].) In Pittsburg Unified School District (1978) PERB Order No. Ad-49, the Board explained the governing principles. First, the Board noted that PERB Regulations are silent on curing proof of support for decertification petitions, because that opportunity ceases whenever a new contract bar takes effect, meaning PERB cannot issue a regulation guaranteeing a set period to cure in all cases. (Id. at p. 3.) In contrast, when there is no contract bar in effect (including for all petitions to represent unrepresented employees and for decertification and severance petitions when the contract bar has lapsed), then the opportunity to cure exists at the very least because the petitioner can file a new petition. (Id. at p. 4.) (p. 12.)

PERB Regulation 32700, subdivision (d) does not allow electronically signed proof of support from exclusively represented employees. For most of PERB’s history, the agency’s regulations have disallowed electronically signed proof of support. (Regents of the University of California (2018) PERB Order No. Ad-459-H, p. 4.) This partially changed on February 15, 2021, when revisions to PERB Regulation 32700 took effect. Revised Regulation 32700, subdivision (d)(4), added an electronic signature option for “employees who are not exclusively represented by an employee organization.” The plain language of the revised regulation thus left PERB’s longstanding requirement of original signatures unchanged for exclusively represented employees who wish to change or decertify their representative or sever themselves from a represented unit. While the February 2021 regulatory changes allowed electronic signatures for unrepresented employees, the changes did not impose any new limit on represented employees’ ability to decertify or change representatives. Rather, represented employees retain the same rights to do so that they have had since EERA’s enactment. By allowing electronic signatures only in the limited instance of petitions to represent unrepresented employees, PERB declined to liberalize decertification processes, thereby rejecting a potentially destabilizing change. (pp. 7, 9.)

PERB Regulation 32700, subdivision (b) gives parties a full year to collect proof of support. (p. 9, fn. 7.)

Regulation 32700 governs proof of support for all petitions filed with PERB, but it does not govern petitions filed with an employer under the Meyers-Milias-Brown Act, section 3500 et. seq. (MMBA), or other acts permitting an employer to establish local rules regarding representation. The MMBA grants employers certain discretion in establishing rules that balance employee rights and stable labor relations. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 13.) The Board expressed no opinion as to what rules on electronic proof of support such an employer may reasonably adopt. (p. 11, fn. 11.)

The same interpretive principles apply to statutes and regulations. (Grossmont Union High School District (2018) PERB Order No. Ad-466, p. 3.) (p. 10, fn. 10.)

A cardinal rule of statutory construction is that we must give “meaning to every word of the statute, if possible, [to] avoid a construction that makes any word surplusage.” (Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, p. 16.) PERB’s regulations must be read as a whole so that every part is harmonized. (County of Santa Clara (2015) PERB Decision No. 2431-M, p. 16.) PERB cannot interpret a regulation in a manner that defeats its apparent purpose. (Region 2 Court Interpreter Employment Relations Committee & California Superior Courts Region 2 (2020) PERB Decision No. 2701-I, p. 36.) (pp. 10-11.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) (p. 5, fn. 5.)

PERB Regulation 32700, subdivision (d) does not allow electronically signed proof of support from exclusively represented employees. For most of PERB’s history, the agency’s regulations have disallowed electronically signed proof of support. (Regents of the University of California (2018) PERB Order No. Ad-459-H, p. 4.) This partially changed on February 15, 2021, when revisions to PERB Regulation 32700 took effect. Revised Regulation 32700, subdivision (d)(4), added an electronic signature option for “employees who are not exclusively represented by an employee organization.” The plain language of the revised regulation thus left PERB’s longstanding requirement of original signatures unchanged for exclusively represented employees who wish to change or decertify their representative or sever themselves from a represented unit. (p. 7.)