Decision A500E – Pasadena Area Community College District

LA-DP-460-E

Decision Date: January 11, 2023

Decision Type: Administrative Appeal

Description: California Federation of Teachers filed a decertification petition to replace Pasadena City College Faculty Association (PCCFA) as the exclusive representative of faculty members at Pasadena Area Community College District. A Board agent issued an administrative determination finding sufficient proof of support consisting of both electronically and physically signed authorization cards. PCCFA asked the Board agent to certify an interlocutory appeal, asserting that PERB Regulation 32700 bars use of electronic proof of support for decertification. The Board agent certified the interlocutory appeal for Board review.

Disposition: The Board held that PERB Regulation 32700 bars use of electronic proof of support to trigger a decertification petition. For most of PERB’s history, the agency’s regulations disallowed electronically signed proof of support. Recent revisions to PERB Regulations changed this rule only for “employees who are not exclusively represented by an employee organization.” (PERB Reg. 32700(d)(4).) The revised regulation 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. The Board therefore reversed the administrative determination.

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Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

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.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.01000 – In General; Filing Requirements

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.)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

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.)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

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

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

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.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

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.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

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. In Region 2 Court Interpreter Employment Relations Committee & California Superior Courts Region 2 (2020) PERB Decision No. 2701-I, p. 36. (pp. 10-11.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

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

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

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.)