Decision A502E – Pasadena Area Community College District

Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination erred in establishing a certain voter eligibility test for a decertification election. The Board found that the dispute met all criteria for an interlocutory appeal under PERB Regulation 32200; because there was such a significant dispute over which employees may vote, the appeal involved more than just the “mechanics” of an election as that term is used in PERB Regulation 32380, subdivision (a). (p. 3 & fn. 4.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.)

Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in establishing a certain voter eligibility test for a decertification election. The unit consists of full-time (regular) faculty and part-time (temporary) faculty. Many part-time faculty work intermittently, meaning they work some terms but not others, or work for one term only. The AD concluded that faculty are eligible to vote if they worked during either the Fall 2022 or Spring 2023 terms. The exclusive representative filed an interlocutory appeal, arguing that this standard would enfranchise many part-time faculty who do not have a reasonable expectation of future employment. The Board agent certified the appeal to the Board pursuant to PERB Regulation 32200. The Board partially sustained the appeal, holding as follows. Regular faculty may vote if they are employed in the unit on the eligibility cutoff date and are still employed when they cast their ballots. Because the District’s part-time faculty are intermittent employees, they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (pp. 4-5, 14-15.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.)

The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (p. 14.)

The Office of General Counsel (OGC) should impound challenged ballots without opening them and resolve challenges only if there are sufficient challenges to potentially impact the outcome. If that is the case, OGC may choose to resolve all challenges, or a subset based on limited issues that may be sufficient to render the remainder non-determinative. OGC should strive for efficiency in resolving challenges, as it does in compliance proceedings. (See, e.g., Bellflower Unified School District (2021) PERB Decision No. 2796, p. 22 [discussing option to accept sworn declarations in lieu of convening a compliance hearing].) (p. 16 & fn. 7.)

Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in establishing a certain voter eligibility test for a decertification election. The unit consists of full-time (regular) faculty and part-time (temporary) faculty. Many part-time faculty work intermittently, meaning they work some terms but not others, or work for one term only. The AD concluded that faculty are eligible to vote if they worked during either the Fall 2022 or Spring 2023 terms. The exclusive representative filed an interlocutory appeal, arguing that this standard would enfranchise many part-time faculty who do not have a reasonable expectation of future employment. The Board agent certified the appeal to the Board pursuant to PERB Regulation 32200. The Board partially sustained the appeal, holding as follows. Regular faculty may vote if they are employed in the unit on the eligibility cutoff date and are still employed when they cast their ballots. Because the District’s part-time faculty are intermittent employees, they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (pp. 4-5, 14-15.)

PERB Regulation 32728, entitled Voter Eligibility, provides, in part: “Unless otherwise directed by the Board, to be eligible to vote in an election, employees must be employed in the voting unit as of the cutoff date for voter eligibility, and still employed on the date they cast their ballots in the election.” Thus, Regulation 32728 provides the Board with discretion to set a voter eligibility standard different from the default standard the regulation sets out. The Board found no cause to vary from the default standard for the District’s regular faculty. The Board reached a different conclusion for the District’s part-time faculty because they are intermittent employees, concluding that they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. (p. 8.)

In administering a decertification election involving a mixed bargaining unit of regular and intermittent employees, PERB must design a voter eligibility standard for intermittent employees that tends to enfranchise those with an “established interest” in employment relations with the employer based upon their having manifested a reasonable expectation of future employment. (State of California (Department of Personnel Administration) and California Union of Safety Employees (1992) PERB Decision No. 948-S, p. 6.) In such cases, “no test is perfect.” (Ibid.) Absent a reasonable stipulation by the parties resolving with sufficient clarity which intermittent employees can vote, PERB must establish a feasible, context-specific standard that reasonably relates to such employees’ objective future expectation, while minimizing the extent to which the standard is overinclusive or underinclusive. Such a feasible, context-specific voter eligibility test should be based on all relevant circumstances. A context-specific voter eligibility test is typically backward-looking and PERB prioritizes two or three types of criteria: a minimum quantity of past work (typically at least 10 percent of full time); recency (typically work in the prior 1-2 years); and, for positions with periodicity, PERB has discretion to require a second stint of employment to winnow out those for whom the past work was merely an isolated episode. (pp. 8-11.)

Because part-time faculty who work intermittently do not necessarily lose all EERA rights between their assignments, the Board found no cause to limit voting rights to those part-time faculty working at the time a petition is filed. Instead, PERB employed a look-back using criteria that tend, on average, to winnow out those lacking a reasonable expectation of future employment. (pp. 11-12.)

Because there is a “clear distinction between voter eligibility and unit membership eligibility,” the Board “has consistently held that employees should be included in bargaining units regardless of how few hours they may work a year, while at the same time limiting who may vote in representation elections.” (Poway Unified School District (2015) PERB Decision No. 2441, p. 6; see also Oakland Unified School District (1988) PERB Order No. Ad-172, pp. 4-5 [distinguishing unit composition precedent from voter eligibility precedent]. (p. 10, fn. 6.)

Board set voter eligibility standards and directed that the Notice of Election include, among other instructions and information: (a) a description of the voter eligibility criteria for regular and intermittent employees; and (b) instructions for employees to request provisional ballots if they claim to be eligible to vote but do not appear on the initial eligibility list, or duplicate ballots if they appear on the list but do not receive the ballot within a reasonable time after Office of the General Council’s initial mailing. (pp. 5 & 15.)

An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.)