Children of Promise Preparatory Academy (PERB A402E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHILDREN OF PROMISE PREPARATORY
ACADEMY,
Employer,
and
INGLEWOOD TEACHERS ASSOCIATION,
CTA/NEA,
Petitioner.
Case No. LA-RR-1213-E
Administrative Appeal
PERB Order No. 402
November 6, 2013
Appearances: Bartsch & Haven by Duane Bartsch, Attorney, for Children
of
Promise
Preparatory Academy; California Teachers Association by Jean Shin, Attorney, for Inglewood
Teachers Association, CT A/NEA.
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Children
of
Promise Preparatory Academy- (Academy)
of
a
an administrative determination (attached) certifying the Inglewood Teachers Association,
CT A/NEA (Association) as the exclusive representative
of
the Academy's non-managerial,
non-supervisory, and non-confidential certificated personnel. The Association sought
recognition as the exclusive representative pursuant to PERB Regulation 33050.
The Board agents 	assigned to the case by PERB' s Office
of
the General Counsel
determined that the Association had demonstrated proof
of
support by more than 50 percent
of
the employees in the proposed bargaining unit, that no other employee organization had
intervened to represent any
of
the petitioned-for employees, that the Academy had not granted
PERB Regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
The first Board agent handled the case from inception in January 2013 through
June 11, 2013. Thereafter, a second Board agent was assigned effective June 13, 2013.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHILDREN OF PROMISE PREPARATORY
ACADEMY,
Employer,
and
INGLEWOOD TEACHERS ASSOCIATION,
CTA/NEA,
Petitioner.
Case No. LA-RR-1213-E
Administrative Appeal
PERB Order No. 402
November 6, 2013
Appearances: Bartsch & Haven by Duane Bartsch, Attorney, for Children of Promise
Preparatory Academy; California Teachers Association by Jean Shin, Attorney, for Inglewood
Teachers Association, CTA/NEA.
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Children of Promise Preparatory Academy (Academy) of a
an administrative determination (attached) certifying the Inglewood Teachers Association,
CTA/NEA (Association) as the exclusive representative of the Academy's non-managerial,
non-supervisory, and non-confidential certificated personnel. The Association sought
recognition as the exclusive representative pursuant to PERB Regulation 33050.'1
The Board agents2
" assigned to the case by PERB's Office of the General Counsel
determined that the Association had demonstrated proof of support by more than 50 percent of
the employees in the proposed bargaining unit, that no other employee organization had
intervened to represent any of the petitioned-for employees, that the Academy had not granted
1
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
The first Board agent handled the case from inception in January 2013 through
June 11, 2013. Thereafter, a second Board agent was assigned effective June 13, 2013.

recognition, and that there was no need for an evidentiary hearing on the matter. Thus, the
Board agents concluded that PERB should certify the Association as the 	clusive	exclusive
representative under PERB Regulation 33485.3
On appeal, the Academy asserts that the Board agents abused their discretion in
determining that the Association had shown proof
of
majority support, by misleading the
Academy through their statements, and in determining that an evidentiary hearing was not
ading the
necessary. The Academy argues in addition that the second Board agent should have
disqualified himself, and requested a stay
of
activity regarding this case pending this appeal.
We have reviewed the entire record in this matter and find that the second Board
agent's administrative determination was well-reasoned, adequately supported by the record
and in accordance with applicable law. Accordingly, we adopt the second Board agent's
administrative determination as the decision
of
the Board itself, subject to our discussion
below
of
the issues raised on appeal, including the Academy's request for disqualification
of
the second Board agent.
BACKGROUND
The Academy is a kindergarten through fourth grade charter school approved by the
Inglewood Unified School District. It serves approximately 200 children and has thirteen
employees, eight
of
whom are certificated. The Academy is a "public school employer" within
The second Board agent assigned to the case also denied the Academy's request that
he disqualify himself pursuant to PERB Regulation 32155(c).
The Academy's request for stay of activity was addressed in a recently-issued
decision. (See Children
of
Promise Preparatory Academy (2013) PERB Order No. Ad-401
(Children
of
Promise).)
2
recognition, and that there was no need for an evidentiary hearing on the matter. Thus, the
Board agents concluded that PERB should certify the Association as the ex
representative under PERB Regulation 33485.
On appeal, the Academy asserts that the Board agents abused their discretion in
determining that the Association had shown proof of majority support, by misle
Academy through their statements, and in determining that an evidentiary hearing was not
necessary. The Academy argues in addition that the second Board agent should have
disqualified himself, and requested a stay of activity regarding this case pending this appeal.*4
We have reviewed the entire record in this matter and find that the second Board
agent's administrative determination was well-reasoned, adequately supported by the record
and in accordance with applicable law. Accordingly, we adopt the second Board agent's
administrative determination as the decision of the Board itself, subject to our discussion
below of the issues raised on appeal, including the Academy's request for disqualification of
the second Board agent.
BACKGROUND
The Academy is a kindergarten through fourth grade charter school approved by the
Inglewood Unified School District. It serves approximately 200 children and has thirteen
employees, eight of whom are certificated. The Academy is a "public school employer" within
3
The second Board agent assigned to the case also denied the Academy's request that
he disqualify himself pursuant to PERB Regulation 32155(c).
4
" The Academy's request for stay of activity was addressed in a recently-issued
decision. (See Children of Promise Preparatory Academy (2013) PERB Order No. Ad-401
(Children of Promise).)
2

section 3540.l(d) the Educational Employment Relations Act (EERA). 	The
Association is an "employee organization" within the meaning
of
EERA section 3540.1 (k).
On January 18, 2013, the Association filed a representation petition and proof
of
support at PERB's Los Angeles Regional Office. On February 15, in response to PERB's
written request therefor, the Academy submitted the names
of
eight certificated teachers to the
Board agent. On February 28, the Board agent notified the parties that the Association's proof
of
support was sufficient to meet the requirements
of
PERB Regulation 33050(b) and
requested a decision from the Academy within
15
days regarding the Association's request for
recognition. On April 11, the Association requested an expedited investigation concerning the
Academy's failure to file a decision on the request for recognition. Also on April 11, the
Academy filed its decision on the recognition request with PERB, via facsimile, denying the
Association's recognition request. The Academy then stated that its denial was based on its
contention that one
of
its certificated employees was on probationary status due to poor
performance and was, therefore, not an appropriate member
of
the proposed bargaining unit.
On April 16, the Board agent scheduled a settlement conference for April 26. The
Notice for the conference included a "Community
of
Interest" checklist used in resolving
relevant issues and advised the Academy to use the checklist as a·guide to prepare for the
conference. On April 23, the Academy informed the Board agent and the Association that it
was unavailable on April 26, and would not be available for a settlement conference until
May 13. On April 26, the Association sent the Board agent a letter claiming that the Academy
was violating the rights
of
its certificated employees with delaying tactics and by its improper
refusal to recognize the Association. The Association also requested prompt processing of its
EERA is codified at Government Code section 3450 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
Unless otherwise noted, all dates herein refer to the 2013 calendar year.
3
the meaning of section 3540.1(d) the Educational Employment Relations Act (EERA).'5The
Association is an "employee organization" within the meaning of EERA section 3540.1(k).
On January 18, 2013,6the Association filed a representation petition and proof of
support at PERB's Los Angeles Regional Office. On February 15, in response to PERB's
written request therefor, the Academy submitted the names of eight certificated teachers to the
Board agent. On February 28, the Board agent notified the parties that the Association's proof
of support was sufficient to meet the requirements of PERB Regulation 33050(b) and
requested a decision from the Academy within 15 days regarding the Association's request for
recognition. On April 11, the Association requested an expedited investigation concerning the
Academy's failure to file a decision on the request for recognition. Also on April 11, the
Academy filed its decision on the recognition request with PERB, via facsimile, denying the
Association's recognition request. The Academy then stated that its denial was based on its
contention that one of its certificated employees was on probationary status due to poor
performance and was, therefore, not an appropriate member of the proposed bargaining unit.
On April 16, the Board agent scheduled a settlement conference for April 26. The
Notice for the conference included a "Community of Interest" checklist used in resolving
relevant issues and advised the Academy to use the checklist as a guide to prepare for the
conference. On April 23, the Academy informed the Board agent and the Association that it
was unavailable on April 26, and would not be available for a settlement conference until
May 13. On April 26, the Association sent the Board agent a letter claiming that the Academy
was violating the rights of its certificated employees with delaying tactics and by its improper
refusal to recognize the Association. The Association also requested prompt processing of its
5
EERA is codified at Government Code section 3450 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
6
Unless otherwise noted, all dates herein refer to the 2013 calendar year.
3

recognition petition. On May 2, the Board agent issued an amended notice
of
settlement
conference for June 11.
On June 11, the settlement conference was held at PERB's Los Angeles Regional
Office. As per PERB regulations, no record was made
of
the conference. 	It is undisputed that
the parties did not reach an agreement and that the Academy asked the Board agent to
disqualify herself. The Board agent complied with the Academy's request and withdrew from
the case._Two days later, on June 13, the case was transferred to a different Board agent.
On June 17, the second Board agent issued an order to show cause (OSC). The OSC
noted that there is a rebuttable presumption that all classroom teachers must be placed in the
same bargaining unit (citing Peralta Community College District (1978) PERB Decision
No. 77 (Peralta)) and requested a response from the Academy no later than June 24,
demonstrating why PERB should not certify the Association as the exclusive representative
without an evidentiary hearing. On June 24, the Academy notified the Board agent that
pursuant to PERB Regulation 32130(c) it was automatically entitled to an extension
of
time to
July
1,
by which time it would submit its response.
On July 1, the Academy submitted its response. As an initial matter, the Academy
requested that the second Board agent disqualify himself. The Academy argued that under
PERB Regulation 32155(c) its concurrence was required to the identity
of
any replacement
Board agent, and it had not concurred in assignment
of
the second Board agent. The Academy
also argued that the second Board agent had demonstrated prejudice against it by "demanding"
that the Academy respond to the OSC by June 24.
As to the bargaining unit, the Academy argued that the petitioned-for unit was
inappropriate because: (1) it contained four management employees and a probationary
PERB·Regulation 33290(a) prohibits the making of a record at settlement
conferences.
4
recognition petition. On May 2, the Board agent issued an amended notice of settlement
conference for June 11.
On June 11, the settlement conference was held at PERB's Los Angeles Regional
Office. As per PERB regulations, no record was made of the conference.'7 It is undisputed that
the parties did not reach an agreement and that the Academy asked the Board agent to
disqualify herself. The Board agent complied with the Academy's request and withdrew from
the case. Two days later, on June 13, the case was transferred to a different Board agent.
On June 17, the second Board agent issued an order to show cause (OSC). The OSC
noted that there is a rebuttable presumption that all classroom teachers must be placed in the
same bargaining unit (citing Peralta Community College District (1978) PERB Decision
No. 77 (Peralta)) and requested a response from the Academy no later than June 24,
demonstrating why PERB should not certify the Association as the exclusive representative
without an evidentiary hearing. On June 24, the Academy notified the Board agent that
pursuant to PERB Regulation 32130(c) it was automatically entitled to an extension of time to
July 1, by which time it would submit its response.
On July 1, the Academy submitted its response. As an initial matter, the Academy
requested that the second Board agent disqualify himself. The Academy argued that under
PERB Regulation 32155(c) its concurrence was required to the identity of any replacement
Board agent, and it had not concurred in assignment of the second Board agent. The Academy
also argued that the second Board agent had demonstrated prejudice against it by "demanding"
that the Academy respond to the OSC by June 24.
As to the bargaining unit, the Academy argued that the petitioned-for unit was
inappropriate because: (1) it contained four management employees and a probationary
7
"PERB Regulation 33290(a) prohibits the making of a record at settlement
conferences.

because
of
the Academy's small size, its efficiency would be impaired by
the unionization
of
its certificated employees and that therefore unionization would not achieve
the primary purpose
of
EERA which is "the improvement
of
personnel management and
Finally, the Academy challenged the sufficiency
of
the Association's proof
of
support,
arguing that two
of
the remaining undisputed members
of
the proposed bargaining unit had
stated that they would not return to the Academy for the next school year.
In support
of
its contentions, the Academy attached to its OSC response job
descriptions for three positions that it maintained were management and, in addition
declarations under penalty
of
perjury from the Academy's chief executive officer (CEO), the
Academy's attorney, and the Academy's school's administrator.
On July 3, the second Board agent issued a notice
of
telephonic prehearing conference.
The conference was scheduled for July 29. The notice indicated that the parties were available
As the administrative determination notes, "[t]he OSC advised that
'if
the facts
asserted are reliant on a writing, the writing must be attached to the declaration and
authenticated therein.' (OSC, p. 4.) The job descriptions provided by the Academy fail to
comply with this [authentication] requirement since the job descriptions are undated, and are
not attached to any declaration." (Admin. Deter., at p. 13.)
The three positions the Academy asserted were management and for which the
Academy submitted job descriptions were "Academic and Testing Coordinator," "Technology
Management Specialist," and "Instructional Lead Teacher." The Academy alleged that there
were four employees who filled these positions. Neither the tendered job descriptions which
were not authenticated as required by the OSC, nor the Academy's "declarations under penalty
of
perjury by witnesses with_personal knowledge" (OSC, at p. 4) identified the incumbents in
the alleged management positions or demonstrated that the "actual job duties" of the actual
. persons in the alleged management positions set forth facts to demonstrate that those persons
alleged to be management were "using independent judgment to formulate or administer
Academy programs." (Admin. Deter., at p. 13.)
5
employee; and (2) because of the Academy's small size, its efficiency would be impaired by
the unionization of its certificated employees and that therefore unionization would not achieve
the primary purpose of EERA which is "the improvement of personnel management and
employer-employee relations." (EERA, § 3540.)	employer-employee relations." (EERA, $ 3540.)
Finally, the Academy challenged the sufficiency of the Association's proof of support,
arguing that two of the remaining undisputed members of the proposed bargaining unit had
stated that they would not return to the Academy for the next school year.
In support of its contentions, the Academy attached to its OSC response
8job
descriptions for three positions that it maintained were management and, in addition
declarations under penalty of perjury from the Academy's chief executive officer (CEO), the
Academy's attorney, and the Academy's school's administrator."
9
On July 3, the second Board agent issued a notice of telephonic prehearing conference.
The conference was scheduled for July 29. The notice indicated that the parties were available
8
As the administrative determination notes, "[the OSC advised that "if the facts
asserted are reliant on a writing, the writing must be attached to the declaration and
authenticated therein.' (OSC, p. 4.) The job descriptions provided by the Academy fail to
comply with this [authentication] requirement since the job descriptions are undated, and are
not attached to any declaration." (Admin. Deter., at p. 13.)
9
" The three positions the Academy asserted were management and for which the
Academy submitted job descriptions were "Academic and Testing Coordinator," "Technology
Management Specialist," and "Instructional Lead Teacher." The Academy alleged that there
were four employees who filled these positions. Neither the tendered job descriptions which
were not authenticated as required by the OSC, nor the Academy's "declarations under penalty
of perjury by witnesses with personal knowledge" (OSC, at p. 4) identified the incumbents in
the alleged management positions or demonstrated that the "actual job duties" of the actual
persons in the alleged management positions set forth facts to demonstrate that those persons
alleged to be management were "using independent judgment to formulate or administer
Academy programs." (Admin. Deter., at p. 13.)

for a formal hearing on July 31, but that the parties would be notified later
if
it were
determined that a hearing would be necessary.
On July 11, the Association replied to the Academy's response to the OSC and the
Academy's request for disqualification
of
the second Board agent. The Association opposed
disqualification
of
the second Board agent, noting that there was no basis to disqualify him
because the Academy had misread PERB Regulation 32155(c) and in any event had not been
prejudiced by the June 24 deadline for responding to the OSC because under PERB's
procedures the Academy had until July 1 to file its response. Responding to the Academy's
claims concerning appropriateness
of
the petitioned-for bargaining unit, the Association
contended that: (1) the Academy had failed to present any evidence regarding the actual job
requirements and responsibilities
of
the bargaining unit members claimed to be management;
(2) in any case, the job duties described were not managerial in nature, but merely the duties
of
experienced teachers; and (3) the probationary status
of
an employee is irrelevant to the
employee's inclusion in the bargaining unit. In response to the Academy's claim regarding
proof
of
support, the Association noted that the adequacy
of
proof
of
support is determined at
the time it is submitted to PERB, and that subsequent staff turnover does not call into question
the adequacy support already determined. The Association asked the second Board agent to
process its petition, to forego an evidentiary hearing, and immediately to certify it as the
exclusive representative.
On August 5, the second Board agent issued his administrative determination, which we
describe below.
The notice advised the parties that at the prehearing conference they should be
prepared to discuss their theories of the case, the witnesses they intended to call, the
documents they intended to introduce, any anticipated evidentiaryissues and objections and
any other motions that could be made prior to the hearing.
6
for a formal hearing on July 31, but that the parties would be notified later if it were
determined that a hearing would be necessary."
10
On July 11, the Association replied to the Academy's response to the OSC and the
Academy's request for disqualification of the second Board agent. The Association opposed
disqualification of the second Board agent, noting that there was no basis to disqualify him
because the Academy had misread PERB Regulation 32155(c) and in any event had not been
prejudiced by the June 24 deadline for responding to the OSC because under PERB's
procedures the Academy had until July 1 to file its response. Responding to the Academy's
claims concerning appropriateness of the petitioned-for bargaining unit, the Association
contended that: (1) the Academy had failed to present any evidence regarding the actual job
requirements and responsibilities of the bargaining unit members claimed to be management;
(2) in any case, the job duties described were not managerial in nature, but merely the duties of
experienced teachers; and (3) the probationary status of an employee is irrelevant to the
employee's inclusion in the bargaining unit. In response to the Academy's claim regarding
proof of support, the Association noted that the adequacy of proof of support is determined at
the time it is submitted to PERB, and that subsequent staff turnover does not call into question
the adequacy support already determined. The Association asked the second Board agent to
process its petition, to forego an evidentiary hearing, and immediately to certify it as the
exclusive representative.
On August 5, the second Board agent issued his administrative determination, which we
describe below.
Io	" The notice advised the parties that at the prehearing conference they should be
prepared to discuss their theories of the case, the witnesses they intended to call, the
documents they intended to introduce, any anticipated evidentiary issues and objections and
any other motions that could be made prior to the hearing.

20, the Academy filed its appeal from the second Board agent's
administrative determination and requested a stay
of
activity in the case.
On August 30, the Association filed its opposition to the Academy's appeal and request
for stay.
BOARD AGENT'S ADMINISTRATIVE DETERMINATION
As an initial matter, the Board agent reviewed the procedural history
of
the case, noting
that the Academy had been given a full opportunity through the settlement conference and
OSC process to present facts which would rebut the Peralta, supra, PERB Decision No. 77
presumption and would justify the exclusion
of
disputed positions from the proposed
bargaining unit. Had the Academy done so, the Board agent observed, an evidentiary hearing
would then be appropriate to resolve any substantial and material factual disputes. However,
he concluded, the Academy had failed in its response to the OSC to establish a prima facie
rebuttal
of
the Peralta presumption and thus "[u]nder these specific circumstances presented
here, it is proper and appropriate for PERB to rely solely on an investigation and production
of
facts through an OSC, rather than setting the matter for an evidentiary hearing." (Admin.
Deter., at p. 9.)
Probationary Employees
In its OSC response, the Academy contended that the probationary employee lacked a
community
of
interest with other employees. The Board agent ruled that the Academy had
presented no evidence or legal authority supporting its contention that probationary classroom
teachers lacked a sufficient community
of
interest with other certificated employees to warrant
their exclusion from the proposed bargaining unit. The Board agent noted that a unit
consisting of "classroom teachers" includes full-time probationary teachers. (Petaluma City
7
On August 20, the Academy filed its appeal from the second Board agent's
administrative determination and requested a stay of activity in the case.
On August 30, the Association filed its opposition to the Academy's appeal and request
for stay.
BOARD AGENT'S ADMINISTRATIVE DETERMINATION
As an initial matter, the Board agent reviewed the procedural history of the case, noting
that the Academy had been given a full opportunity through the settlement conference and
OSC process to present facts which would rebut the Peralta, supra, PERB Decision No. 77
presumption and would justify the exclusion of disputed positions from the proposed
bargaining unit. Had the Academy done so, the Board agent observed, an evidentiary hearing
would then be appropriate to resolve any substantial and material factual disputes. However,
he concluded, the Academy had failed in its response to the OSC to establish a prima facie
rebuttal of the Peralta presumption and thus "[under these specific circumstances presented
here, it is proper and appropriate for PERB to rely solely on an investigation and production of
facts through an OSC, rather than setting the matter for an evidentiary hearing." (Admin.
Deter., at p. 9.)
Probationary Employees
In its OSC response, the Academy contended that the probationary employee lacked a
community of interest with other employees. The Board agent ruled that the Academy had
presented no evidence or legal authority supporting its contention that probationary classroom
teachers lacked a sufficient community of interest with other certificated employees to warrant
their exclusion from the proposed bargaining unit. The Board agent noted that a unit
consisting of "classroom teachers" includes full-time probationary teachers. (Petaluma City
7

Elementary and High School Districts (1977) EERB Decision No. 9.)" Since there was no
factual dispute regarding the probationary teacher, the Board agent ruled that the Academy
failed to rebut the Peralta, supra, PERB Decision No. 77 presumption that the probationary
teacher was appropriately included in the proposed unit.
Management Employees
In its OSC response, the Academy contended that three of the unit positions covering
four different employees" were managerial and not properly included in the unit. The Board
agent noted that the Academy bore the burden of proof as to the issue (Los Angeles Unified
School District (2004) PERB Decision No. 1665), and in order to be deemed "management,"
the positions in dispute must be "clearly allied with management." (Paramount Unified School
District (1977) EERB Decision No. 33.) Management employees are "only those employees
who have significant responsibilities for both formulating district policies and administering
district programs." (Admin. Deter., at p.12, citing Lompoc Unified School District (1977)
EERB Decision No. 13.)" Moreover, the Board has defined the formulation of policy as "the
exercise of discretionary authority to develop and modify institutional goals and priorities."
(Id., quoting Hartnell Community College District (1979) PERB Decision No. 81 (Hartnell).)
The Board agent quoted with emphasis from the Board's decision in Hartnell:
The administration of programs contemplates effective
implementation of the policy through the exercise of independent
judgment. Thus, managerial status contemplates those persons
who have discretion in the performance of their jobs beyond that
which must conform to an employer's established policy. The
question as to whether particular employees are managerial must
be answered in terms of the employees' actual job
responsibilities, authority and relationship to the employer.
"Prior to January 1, 1978, PERB was known as the Educational Employment
Relations Board or EERB.
12 See footnote 9 above.
Elementary and High School Districts (1977) EERB Decision No.
9.)11	
Since there was no
factual dispute regarding the probationary teacher, the Board agent ruled that the Academy
failed to rebut the Peralta, supra, PERB Decision No. 77 presumption that the probationary
teacher was appropriately included in the proposed unit.
Management Employees
In its OSC response, the Academy contended that three
of
the unit positions covering
four different employees
12
were managerial and not properly included in the unit. The Board
agent noted that the Academy bore the burden
of
proof as to the issue (Los Angeles Unified
School District (2004) PERB Decision No. 1665), and in order to be deemed "management,"
the positions in dispute must be "clearly allied with management." (Paramount Unified School
District (1977) EERB Decision No. 33.) Management employees are "only those employees
who have significant responsibilities for both formulating district policies and administering
district programs." (Admin. Deter., at p.12, citing Lompoc Unified School District (1977)
EERB Decision No. 13.)1 3 Moreover, the Board has defined the formulation
of
policy as "the
exercise
of
discretionary authority to develop and modify institutional goals and priorities."
(Id., quoting Hartnell Community College District (1979) PERB Decision No.
81
(Hartnell).)
The Board agent quoted with emphasis from the Board's decision in Hartnell:
The administration
of
programs contemplates effective
implementation
of
the policy through the exercise
of
independent
judgment. Thus, managerial status contemplates those persons
who have discretion in the performance of their jobs beyond that
which must conform to an employer's established policy. The
question as to whether particular employees are managerial must
be answered in terms
of
the employees' actual job
responsibilities, authority and relationship to the employer.
11
Prior to January 1, 1978, PERB was known as the Educational Employment
Relations Board or EERB.
12
See footnote 9 above.
8

Managerial status is not necessarily conferred upon employees
because they possess some limited authority to determine, within
established limits, curriculum, course content or budgetary
allocations.
(Id., emphasis added by second Board agent.)
In its OSC response, the Academy submitted job descriptions for the three certificated
job classifications claimed to be management but without authenticating declarations under
penalty of perjury by witnesses with personal knowledge of the actual job duties."* Moreover,
the Academy failed to identify any incumbent employee who filled the disputed classifications
during the 2012-2013 school year. The Board agent concluded that because the evidence
submitted by the Academy failed to comply with OSC's authentication directive, he could not
reliably determine the actual job duties of the four certificated employees claimed to be
management. (See Santa Barbara Community College District (2011) PERB Decision
No. 2212 [management positions are determined primarily by the position's actual job duties,
not just by language in a job description].) He further determined that even if the job
description documents had been authenticated, the job descriptions submitted by the Academy
failed to describe duties demonstrating "discretionary authority to formulate policies and
institutional objectives." (Admin. Deter., at p.13, citing Hartnell, supra, PERB Decision
No. 81.) On this basis, the Board agent concluded that the Academy had failed to demonstrate
a prima facie basis for excluding from the bargaining unit the four employees in the three
disputed job classifications.
14 In the OSC, the second Board agent had advised the Academy to authenticate any
document submitted as evidence, to wit, the document "must be attached to the declaration and
authenticated therein." (OSC, at p. 4.)
9
Managerial status is not necessarily conferred upon employees
because they possess soine limited authority to determine, within
established limits, curriculum, course content or budgetary
allocations.
(Id.,'
emphasis added by second Board agent.)
In its OSC response, the Academy submitted
job
descriptions for the three certificated
job
classifications claimed to be management but without authenticating declarations under
penalty
of
perjury by witnesses with personal knowledge
of
the actual job duties.
14
Moreover,
the Academy failed to identify any incumbent employee who filled the disputed classifications
during the 2012-2013 school year. The Board agent concluded that because the evidence
submitted by the Academy failed to comply with
OSC's
authentication directive, he could not
reliably determine the actual
job
duties
of
the four certificated employees claimed to be
management. (See Santa Barbara Community College District (2011) PERB Decision
No. 2212 [management positions are determined primarily by the position's actual
job
duties,
not just by language in a
job
description].)
_He
further determined that even
if
the
job
description documents had been authenticated, the
job
descriptions submitted by the Academy
failed to describe duties demonstrating "discretionary authority to formulate policies and
institutional objectives." (Admin. Deter., at p.13, citing Hartnell, supra, PERB Decision
No. 81.) On this basis, the Board agent concluded that the Academy had failed to demonstrate
a prima facie basis for excluding from the bargaining unit the four employees in the three
disputed job classifications.
14
In the OSC, the second Board agent had advised the Academy to authenticate any
document submitted as evidence, to wit, the document "must be attached to the declaration and
authenticated therein." (OSC, at p. 4.)
9

Efficiency of Operations
In its OSC response, the Academy argued that due to the small size of the Academy and
the bargaining unit, collective bargaining would impede the school's ability to operate
efficiently, but presented no factual evidence or legal citation to support its argument." The
Board agent noted that increased costs and potential time spent in negotiating did not outweigh
the employees' representational rights. (Santa Ana Unified School District (2010) PERB
Order No. Ad-383 (Santa Ana) [increased costs due to negotiating responsibilities not a basis
to deny representation petition]; Antelope Valley Community College District (1981) PERB
Decision No. 168 [potential loss of time spent in negotiating does not outweigh benefits of
collective bargaining].) On this basis, the Board agent rejected the Academy's efficiency
argument and determined that no hearing was necessary to resolve this issue.
Proof of Support
In its OSC response, the Academy contended that the recognition petition now lacked
requisite support, because the Academy no longer employed the majority of the employees
who had been in the proposed bargaining unit during the 2012-2013 school year. The Board
agent noted that: (1) proof of support was valid for one year immediately prior to the date the
recognition petition was filed (PERB Reg. 32700(c)); (2) proof of support remains valid during
a contested unit determination (Davis Unified School District, et al. (1980) PERB Decision
"SEERA section 3545(a) states:
In each case where the appropriateness of the unit is an issue, the
board shall decide the question on the basis of the community of
interest between and among the employees and their established
practices including, among other things, the extent to which such
employees belong to the same employee organization, and the
effect of the size of the unit on the efficient operation of the
school district.
(Emphasis added.)
10
Efficiency
of
Operations
In its OSC response, the Academy argued that due to the small size
of
the Academy and
the bargaining unit, collective bargaining would impede the school's ability to operate
efficiently, but presented no factual evidence or legal citation to support its argument.
15
The
Board agent noted that increased costs and pot~ntial time spent in negotiating did not outweigh
the employees' representational rights. (Santa Ana Unified School District (2010) PERB
Order No. Ad-383 (Santa Ana) [increased costs due to negotiating responsibilities not a basis
to deny representation petition]; Antelope Valley Community College District (1981) PERB
Decision No. 168 [potential loss
of
time spent in negotiatjng does not outweigh benefits
of
collective bargaining].) On this basis, the Board agent rejected the Academy's efficiency
argument and determined that no hearing was necessary to resolve this issue.
Proof
of
Support
In its OSC response, the Academy contended that the recognition petition now lacked
requisite support, because the Academy no longer employed the majority
of
the employees
who had been in the proposed bargaining unit during the.2012-2013 school year. The Board
agent noted that: ( 1) proof
of
support was valid for one year immediately prior to the date the
recognition petition was filed (PERB Reg. 32700(c)); (2) proof
of
support remains valid during
a contested unit determination (Davis Unified School District, et al. (1980) PERB Decision
15
EERA section 3545(a) states:
(Emphasis added.)
In each case where the appropriateness
of
the unit is an issue, the
board shall decide the question on the basis
of
the community
ofinterest between and among the employees and their established
practices including, among other things, the extent to which such
employees belong to the same employee organization, and the
effect of the size of the unit on the efficient operation of the
school district.

No. 116); and (3) proof of support is not extinguished by showing that employees who
supported the petition are no longer employed by the employer (Kings County Office of
Education (1990) PERB Decision No. 801). The Board agent also noted that proof of support
is confidential (PERB Reg. 32700(f)); and not part of the record (San Diego Community
College District (2001) PERB Decision No. 1445); and that both EERA section 3544(b) and
PERB Regulation 33075 grant PERB sole authority to determine proof of support. On these
bases, the Board agent determined that there was no legal or evidentiary basis to address the
issue of proof of support at an evidentiary hearing.
Disqualification of Board Agent
In its OSC response, the Academy argued two theories for Board agent disqualification.
First, urged the Academy, following the disqualification of a Board agent, PERB regulations
require that the parties to the case concur in the replacement Board agent, and that the
Academy had not accepted the current Board agent. Second, urged the Academy, the Board
agent "is not, has not and [cannot] be fair and impartial through these proceedings" (OSC
Response, at p. 2) and should disqualify himself.
The Board agent concluded that: (1) the Academy's request that he disqualify himself
did not conform with the requirements of PERB Regulation 32155(c) since it was not made
under oath; (2) the Academy had made no showing that he had exhibited any bias or prejudice
toward the Academy; and (3) the Academy's contention that its concurrence was necessary in
the identity of a replacement Board agent was based on a misreading of the particular
regulation. On this basis, the second Board agent determined that the Academy had failed to
plead sufficient grounds for disqualification and denied the Academy's request.
11
No. 116); and (3) proof
of
support is not extinguished by showing that employees who
supported the petition are no longer employed by the employer (Kings County Office
of
Education (1990) PERB Decision No. 801). The Board agent ~lso noted that proof
of
support
is confidential (PERB Reg. 32700(f)); and not part
of
the record (San Diego Community
College District (2001) PERB Decision No. 1445); and that both EERA section 3544(b) and
PERB Regulation 33075 grant PERB sole authority to determine proof
of
support. On these
bases,
the
Board agent determined that there was no legal or evidentiary basis to address the
issue
of
proof
of
support at an evidentiary hearing.
Disqualification
of
Board Agent
I~ its OSC response, the Academy argued two theories for ·Board agent disqualification.
First, urged the Academy, following the disqualification
of
a Board agent, PERB regulations
require that the parties to the case concur in the replacement Board agent, and that the
Academy had not accepted the current Board agent. Second, urged the Academy, the Board
agent "is not, has not and [cannot] be fair and impartial through these proceedings" (OSC
Response, at p. 2) and should disqualify himself.
The Board agent concluded that: (1) the Academy's request that he disqualify himself
did not conform with the requirements
of
PERB Regulation 32155(c) since it was not made
under oath; (2) the Academy had made no showing that he had exhibited any bias or prejudice
toward the Academy; and (3) the Academy's contention that its concurrence was necessary in
the identity
of
a replacement Board agent was based on a misreading
of
the particular
regulation. On this basis, the second Board agent determined that the Academy had failed to
plead sufficient grounds_for disqualification and denied the Academy's request.
11

Board Agent's Conclusion
The Board agent concluded that the Academy failed to present proper factual support:
(1) rebutting the presumption that the proposed bargaining unit was appropriate;
(2) demonstrating that any of the employees in the proposed bargaining unit were managerial;
3) demonstrating that the proposed bargaining unit did not share a sufficient community of
interest; or (4) demonstrating that collective bargaining would impede the efficient operation
of the Academy. Therefore, concluded the Board agent, no formal hearing was required and
the petitioned-for bargaining unit should be certified. 16
POSITION OF THE PARTIES
On appeal the Academy argues: (1) both Board agents abused their discretion; (2) the
Academy was entitled to an evidentiary hearing, because it had presented a material factual
dispute whether the three job classifications were managerial, which issue could only be
resolved at hearing; and (3) the second Board agent should have disqualified himself, because
the Academy never concurred in his selection and because he had demonstrated bias against
the Academy." In addition, the Academy requested a stay of activity regarding the present
case.
The Association responds that: (1) it had demonstrated proof of majority support in a
presumptively appropriate bargaining unit; (2) the Academy failed to present sufficient
evidence to rebut that presumption of appropriateness; and (3) the Board agent properly
16 The second Board agent described the bargaining unit as including "all certificated
personnel, including classroom teachers" and excluding "all management, supervisory and
confidential personnel." (Admin. Deter., at p. 19.)
17 The Academy does not raise in its appeal the second Board agent's administrative
determinations regarding the probationary employee or the Academy's efficiency of operations
claim. Thus these issues, having not been appealed, are not before us. (PERB Reg. 32360(c);
Los Angeles City & County School Employees Union, Local 99, SEIU, AFL-CIO (Kimmett)
(1987) PERB Order No. Ad-167.)
12
Board Agent's Conclusion
The Board agent concluded that the Academy failed to present proper factual support:
(1) rebutting the presumption that the proposed bargaining unit was appropriate;
(2) demonstrating that any
of
the employees in the proposed bargaining unit were managerial;
(3) demonstrating that the proposed bargaining unit did not share a sufficient community
of
interest; or (4) demonstrating that collective bargaining would impede the efficient operation
of
the Academy. Therefore, concluded the Board agent, no formal hearing was required and
the petitioned-for bargaining unit should be certified.
16
POSITION OF THE PARTIES
On appeal the Academy argues: (
1)
both Board agents abused their discretion; (2) the
Academy was entitled to an evidentiary hearing, because it had presented a material factual
dispute whether the three job classifications were managerial, which issue could only be
resolved at hearing; and (3) the second Board agent should have disqualified himself, because
the Academy never concurred in his selection and because he had demonstrated bias against
the Academy.
17
In addition, the Academy requested a stay
of
activity regarding the present
case.
The Association responds that: (1) it had demonstrated proof
of
majority support in a
presumptively appropriate bargaining unit; (2) the Academy failed to present sufficient
evidence to rebut that presumption
of
appropriateness; and (3) the Board agent properly
16
The second Board agent described the bargaining unit as including "all certificated
personnel, including classroom teachers" and excluding "all management, supervisory and
confidential personnel." (Admin. Deter., at p. 19.)
17
The Academy does not raise in its appeal the second Board agent's administrative
determinations regarding the probationary employee or the Academy's efficiency of operations
claim. Thus these issues, having not been appealed, are not before us. (PERB Reg. 32360(c);
Los Angeles City & County School Employees Union, Local 99, SEU], AFL-CIO (Kimmet!}
(1987) PERB Order No. Ad-167.)
12

refused to disqualify himself, because the Academy's disqualification request was procedurally
1.
deficient and, in any event, was based on a mischaracterization of facts and a misreading of
PERB regulations.
The Academy's Claim that Board Agents Abused Their Discretion
The Academy argues that the Board agents abused their discretion in determining that
the Association had provided valid proof of support, in misleading the Academy regarding the
composition of the unit and in deciding not to hold an evidentiary hearing. We take in turn
these claims.
Abuse of Discretion Standard
In reviewing whether a Board agent has conducted a proper investigation, the Board
generally has looked at whether or not the Board agent abused his or her discretion. (Robert L.
Mueller Charter School (2003) PERB Order No. Ad-320 (Mueller); Jefferson School District
(1980) PERB Order No. Ad-82; State of California (Department of Personnel Administration)
(1985) PERB Order No. Ad-151-S; California State University (1988) PERB Order
No. Ad-177-H; Pleasant Valley Elementary School District (1984) PERB Decision No. 380.)
We deem this standard appropriate here as well.
2. 	Proof of Support
The Academy argues that the first Board agent's investigation of the proof of support
was deficient. According to the Academy, the first Board agent erred both in her calculation of
the proof of support and in her instructions to the Academy's CEO as to which employees were
The Association also opposed the Academy's request for a stay on the grounds that it
also is procedurally deficient and that to grant a stay would undermine the rights of the
bargaining unit members.
13
refused to disqualify himself, because the Academy's disqualification request was procedurally
deficient and, in any event, was based on a mischaracterization
of
facts and a misreading
of
PERB regulations.
18
DISCUSSION	DISCUSSION
The Academy's Claim that Board Agents Abused Their Discretion
The Academy argues that the Board agents abused their discretion in determining that
the Association had provided valid proof
of
support, in misleading the Academy regarding the
composition
of
the unit and in deciding not to hold an evidentiary hearing. We take in turn
these claims.
1.
	Abuse
of
Discretion Standard
In reviewing whether a Board agent has conducted a proper investigation, the Board
generally has looked at whether or not the Board agent abused his or her discretion. (Robert
L.
Mueller Charter School (2003) PERB Order No. Ad-320 (Mueller); Jefferson School District
(1980) PERB Order No. Ad-82; State
of
California (Department
of
Personnel Administration)
(1985) PERB Order No. Ad-151-S; California State University (1988) PERB Order
No. Ad-177-H; Pleasant Valley Elementary School District (1984) PERB Decision No. 380.)
We deem this standard appropriate here as well.
2. 	Proof
of
Support
The Academy argues that the first Board agent's investigation
of
the proof
of
support
was deficient. According to the Academy, the first Board agent erred both in her calculation
of
the proof of
support and in her instructions to the Academy's CEO as to which employees were
18
The Association also opposed the Academy's request for a stay on the grounds that it
also is procedurally deficient and that to grant a stay would undermine the rights of the
bargaining unit members.
13

included in the proposed bargaining unit. We conclude that both of the Academy's contentions
lack merit.
EERA section 3544(b) and PERB Regulation 33075 grant PERB sole authority to
determine the sufficiency of an employee organization's proof of support. (Santa Ana, supra,
PERB Order No. Ad-383.) The process for determining proof of support is confidential.
(PERB Reg. 32700(f).) A party may challenge the proof of support on the basis that it was
obtained by fraud or coercion, or that the signatures on support documents are not genuine, by
filing with the Regional Office, within 20 days after the filing of the representation petition,
"declarations under penalty of perjury supporting such contention[s]." PERB will not
consider declarations which are not timely filed, absent a showing of good cause for any delay.
(PERB Reg. 32700(g).) The Academy failed to file timely a challenge to the proof of support,
and proffers no good cause for the delay. We conclude that the Board agent did not abuse her
discretion in determining that the Association had submitted to PERB proof of majority
support.
Lastly, the Academy maintains that because half of the proposed bargaining unit
members were managers, it was impossible for more than fifty (50) percent of the unit to
support the union. The Academy bases this contention on its view that a bargaining unit is
established at the time there is an election. The Academy errs. Proof of support is determined
by PERB when a petition is filed and an employer provides a list of employees that comprise
the petitioned-for unit. When a dispute arises thereafter as to the composition of the
bargaining unit, PERB conducts an investigation to determine unit appropriateness. During
this investigative process, which may or may not require an evidentiary hearing, the identity of
individual employees within the unit may change over time as employees leave employment
and are replaced. However, the initial determination regarding sufficiency of support for the
14
included in the proposed bargaining unit. We conclude that both
of
the Academy's contentions
lack merit.
EERA section 3544(b) and PERB Regulation 33075 grant PERB sole authority to
determine the sufficiency
of
an employee organization's
proof
of
support. (Santa Ana, supra,
PERB Order No. Ad-383.) The process for determining proof
of
support is confidential.
(PERB Reg. 32700(f).) A party may challenge the proof
of
support on the basis that it was
obtained by fraud or coercion, or that the signatures on support documents are not genuine, by
filing with the Regional Office, within 20 days after the filing
of
the representation petition,
"declarations under penalty
of
perjury supporting such contention[ s]." 	PERB
will_
not
consider declarations which are not timely filed, absent a showing
of
good cause for any delay.
(PERB Reg. 32700(g).) The Academy failed to file timely a challenge to the proof
of
support,
and proffers no good cause for the delay. We conclude that the Board agent did not abuse her
discretion in determining that the Association had submitted to PERB proof
of
majority
support.
Lastly, the Academy maintains that because half
of
the proposed bargaining unit
members were managers, it was impossible for more than fifty (50) percent
of
the unit to
support the union. The Academy bases this contention on its view that a bargaining unit is
established at the time there is an election. The Academy errs. Proof
of
support is determined
by PERB when a petition is filed and an employer provides a list
of
employees that comprise
the petitioned-for unit. When a dispute arises thereafter as to the composition
of
the
bargaining unit, PERB conducts an investigation to determine unit appropriateness. During
this investigative process, which may or may not require an evidentiary hearing, the identity
of
individual employees within the unit may change over time as employees leave employment
and are replaced. However, the initial determination regarding sufficiency of support for the
14

recognition petition, once made, is determinative on the issue of majority support within the
petitioned-for unit. If, following an investigation, a different unit is determined to be
appropriate, an election may be conducted in the revised appropriate unit to determine whether
a majority of employees wish to be represented by the petitioning organization.
Here, the Board agent initially requested that the Academy provide PERB a list of
employees in certificated non-management and non-supervisory positions. The Academy
submitted the names of eight certificated employees, each of whom was described as being a
"teacher." Based on this information, the Board agent determined that the Association had
demonstrated majority support in the petitioned-for bargaining unit. The Academy has had an
opportunity, through the OSC process, to demonstrate that the petitioned for unit is
inappropriate. It failed to do so. The initial determination of the Board agent that the
Association demonstrated sufficient proof of majority support in the petitioned-for unit is
affirmed.
3. 	Board Agent's Allegedly Misleading Statements
The Academy also contends that it was misled by the first Board agent into providing
names of employees who should not have been part of the bargaining unit. We conclude the
Academy's contention lacks merit.
The Board agent's letter to the Academy requesting a list of employees in positions
within the petitioned-for unit clearly stated that the Association had submitted a request for
recognition of a unit consisting of "all certificated non-management, non-supervisory
employees" (emphasis added) and requested information, including the names, of all
employees in such a unit. The Academy maintains that when it sought clarification of which
employees to include on the list for PERB, the first Board agent told them to provide the
15
recognition petition, once made, is determinative on the issue
of
majority support within the
petitioned-for unit. If, following an investigation, a different unit is determined to be
appropriate, an election may be conducted in the revised appropriate unit to determine whether
a majority
of
employees wish to be represented by the petitioning organization.
Here, the Board agent initially requested that the Academy provide PERB a list
of
employees in certificated non-management and non-supervisory positions. The Academy
submitted the names
of
eight certificated employees, each
of
whom was described as being a
"teacher." Based on this information, the Board agent determined that the Association had
demonstrated majority support in the petitioned-for bargaining unit. The Academy has had an
opportunity, through the OSC process, to demonstrate that the petitioned for unit is
inappropriate. It failed to do so. The initial determination
of
the Board agent that the
Association demonstrated sufficient proof
of
majority support in the petitioned-for unit is
affirmed.
3.
	Board Agent's Allegedly Misleading Statements
The Academy also contends that it was misled by the first Board agent into providing
names
of
employees who should not have been part
of
the bargaining unit. We conclude the
Academy's contention lacks merit.
The Board agent's letter to the Academy requesting a list
of
employees in positions
within the petitioned-for unit clearly stated that the Association had submitted a request for
recognition
of
a unit consisting
of
"all certificated non-management, non-supervisory
employees" (emphasis added) and requested information, including the names,
of
all
employees in such a unit. The Academy maintains that when it sought clarification of which
employees to include on the list for PERB, the first Board agent told them to provide the
15

names of "all certified (sic) teachers" and did not elaborate further." The Academy thus
maintains that it inadvertently submitted the names of management and supervisory
certificated personnel despite the first Board agent's letter clearly excluding such employees
from the proposed bargaining unit.
Through the OSC process the Academy had an opportunity to demonstrate, prima facie,
that some of the employees on the list provided to PERB are management employees and thus
not appropriately included within the petitioned-for unit. But it failed to provide authenticated
documentary evidence or competent declaration testimony regarding the names and job duties
of persons it claims are management employees. Thus, the Board agent properly concluded
that there are no disputed material facts regarding the appropriateness of the petitioned-for unit
and certified the Association as the representative of the petitioned-for unit. We conclude that
the Academy's contention that the Association's recognition petition lacks sufficient proof of
support, lacks merit.
4. 	An Evidentiary Hearing was Required
a. 	Hearings are conducted when appropriate in representation cases
The Academy maintains that the second Board agent abused his discretion by certifying
the bargaining unit without an evidentiary hearing. According to the Academy, it is entitled to
an evidentiary hearing to present evidence that four of its certificated employees were
managers who should be excluded from the unit. We conclude the Academy's contention
lacks merit.
Our procedures provide no guarantee or entitlement to an evidentiary hearing in a
representation proceeding. As stated in PERB Regulation 33237(a):
"certified."
Throughout its pleadings the Academy refers to its certificated personnel as
16
names
of
"all certified (sic) teachers" and did not elaborate further. 19
The Academy thus
maintains that it inadvertently submitted the names
of
management and supervisory
certificated personnel despite the first Board agent's letter clearly excluding such employees
from the proposed bargaining unit.
Through the OSC process the Academy had an opportunity to demonstrate, prima facie,
that some
of
the employees on the list provided to PERB are management employees and thus
not appropriately included within the petitioned-for unit. But it failed to provide authenticated
documentary evidence or competent declaration testimony regarding the names and job duties
of
persons it claims are management employees. Thus, the Board agent properly concluded
that there are no disputed material facts regarding the appropriateness
of
the petitioned-for unit
and certified the Association as the representative
of
the petitioned-for unit. We conclude th~t
the Academy's contention that the Association's recognition petition lacks sufficient proof
of
support, lacks merit.
4. 	An Evidentiary Hearing was Required
a.
	Hearings are conducted when appropriate in representation cases
The Academy maintains that the second Board agent abused his discretion by certifying
the bargaining unit without an evidentiary hearing. According to the Academy, it is entitled to
an evidentiary hearing to present evidence that four
of
its certificated employees were
managers who should be excluded from the unit. We conclude the Academy's contention
lacks merit.
Our procedures provide no guarantee or entitlement to an evidentiary hearing in a
representation proceeding. As stated in PERB Regulation 33237(a):
19
Throughout its pleadings the Academy refers to its certificated personnel as
"certified."
16

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.) (See also Mueller, supra, PERB Order No. Ad-320 [under EERA, the
Board agent must conduct inquiries and investigations but has discretion as to whether or not
to hold a hearing].) Although Board agents must conduct an investigation, that investigation
may lead them to determine that sufficient evidence has been submitted to raise a material
issue that necessitates an evidentiary hearing, or they may determine, as did the Board agent
did in this case, that no material issue of fact exists and thus that a hearing is unnecessary.
The burden of providing sufficient evidence demonstrating that a material issue of fact
does exist lies with the party seeking to exclude certain employees from the bargaining unit on
the basis that they are managerial, supervisory, or confidential. (Unit Determination for the
State of California (1980) PERB Decision No. 110c-S [burden of proving an exclusionary
claim is on the party asserting it]; see also The California State University (1983) PERB
Decision No. 351-H.) Moreover, it is well established that in cases involving a presumptively
appropriate bargaining unit, such as "all classroom teachers," the burden of proof also lies with
the party opposing the unit. (Peralta, supra, PERB Decision No. 77; Livermore Valley Joint
Unified School District (1981) PERB Decision No. 165; Compton Unified School District
(1979) PERB Decision No. 109; Modesto City Schools (1986) PERB Decision No. 567.)
Under either theory, the burden of proof was on the Academy to demonstrate a disputed issue
of material fact.
Here, the second Board agent provided the Academy in the OSC with clearly stated
guidelines for submitting evidence in response. The Academy failed to present evidence in the
manner required. It did not provide declarations on personal knowledge showing the actual job
17
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.) (See also Mueller, supra, PERB Order No. Ad-320 [under EERA, the
Board agent must conduct inquiries and investigations but has discretion as to whether or not
to hold a hearing].) Although Board agents must conduct an investigation, that investigation
may lead them to determine that sufficient evidence has been submitted to raise a material
issue that necessitates an evidentiary hearing, or they may determine, as did the Board agent
did in this case, that no material issue
of
fact exists and thus that a hearing is unnecessary.
The burden
of
providing sufficient evidence demonstrating that a material issue
of
fact
does exist lies with the party seeking to exclude certain employees from the bargaining .unit on
the basis that they are managerial, supervisory, or confidential. (Unit Determination for the
State
of
California (1980) PERB Decision No. 1l0c-S [burden
of
proving an exclusionary
claim.is on the party asserting it]; see also The California State University (1983) PERB
Decision No. 351-H.) Moreover, it is well established that in cases involving a presumptively
appropriate bargaining unit, such as "all classroom teachers," the burden
of
proof also lies with
the party opposing the unit. (Peralta, supra, PERB Decision No. 77; Livermore Valley Joint
Unified School District (1981) PERB Decision No. 165; Compton Unified School District
(1979) PERB Decision No. 109; Modesto City Schools (1986) PERB Decision No. 567 .)
Under either theory, the burden
of
proof was on the Academy to demonstrate a disputed issue
of
material fact.
Here, the second Board agent provided the Academy in the OSC with clearly stated
guidelines for submitting evidence in response. The Academy failed to present evidence in the
manner required. It did not provide declarations on personal knowledge showing the actual job
17

duties of the three job classifications it claimed to be management, nor did it identify by name
the employees who filled such positions during the 2012-2013 school year. The Board agent
reasonably determined that the Academy failed to meet its evidentiary burden under the OSC
to present, prima facie, issues of material fact that needed to be resolved at a hearing. The
Board agent's administrative determination fully stated the issues, facts, law and rationale for
his decision. In doing so, the second Board agent was well within the authority granted to him
under PERB Regulation 33237(a) and in full compliance with the requirements for an
administrative decision under PERB Regulation 32350(b). We conclude that the second Board
agent did not abuse his discretion in deciding that an evidentiary hearing was unnecessary.
b. 	The First Board Agent Did Not Issue or Serve a Notice of Hearing
The Academy claims that it was entitled to a hearing, because the first Board agent
allegedly stated at the June 11, settlement conference that if the parties could not agree to
management status of the disputed positions, the question could only be resolved at an
evidentiary hearing. The Academy also maintains that during the settlement conference and at
the first Board agent's insistence, the parties agreed to a mutually satisfactory date for a
hearing. We conclude that the Academy's contentions lack merit.
PERB Regulation 33300 requires that a Board agent serve a notice of hearing if he or
she determines that a hearing is necessary. It is undisputed that a notice of hearing was never
served on the parties."Moreover, stating an opinion at a settlement conference and soliciting
dates from the parties upon which a hearing might be held do not amount to the service of a
notice of hearing pursuant to PERB Regulations 33300 and 32140. Thus, we conclude that the
Academy has not established that it was entitled to an evidentiary hearing based either on the
PERB Regulation 32140 specifies the means of service of documents.
18
duties
of
the three
job
classifications it claimed to be management, nor did it identify by name
the employees who filled such positions during the 2012-2013 school year. The Board agent
reasonably determined that the Academy failed to meet its evidentiary burden under the OSC
to present, prima facie, issues
of
material fact that needed to be resolved at a hearing. The
Board agent's administrative determination fully stated the issues, facts, law and rationale for
his decision. In doing so, the second Board agent was well within the authority granted to him
under PERB Regulation 33237(a) and in full compliance with the requirements for an
administrative decision under PERB Regulation 32350(b). We conclude that the second Board
agent did not abuse his discretion in deciding that an evidentiary hearing was unnecessary.
b. 	The First Board Agent Did Not Issue or Serve a Notice
of
Hearing
The Academy claims that it was entitled to a hearing, because the first Board agent
allegedly stated at the June 11, settlement conference that
if
the parties could not agree to
management status
of
the disputed positions, the question could only be resolved at an
evidentiary hearing. The Academy also maintains that during the settlement conference and at
the first Board agent's insistence, the parties agreed to a mutually satisfactory date for a
hearing. We conclude that the Academy's contentions lack merit.
PERB Regulation 33300 requires that a Board agent serve a notice
of
hearing if he or
she determines that a hearing is necessary. It is undisputed that a notice
of
hearing was never
served on the parties.20 Moreover, stating an opinion at a settlement conference and soliciting
dates from the parties upon which a hearing might be held do not amount to
the
service
of
a
notice
of
hearing pursuant to PERB Regulations 33300 and 32140. Thus, we conclude that the
Academy has not established that it was entitled to an evidentiary hearing based either on the
20
PERB Regulation 32140 specifies the means of service of documents.
18

first Board agent's alleged statements that a hearing would be necessary or on her solicitation
of a mutually agreeable date for a potential hearing.
Additionally, the Academy solicited the first Board agent to disqualify herself and
withdraw. She did so. Thereafter, the case was assigned by PERB to a different Board agent,
who was himself free to determine the best course of action within the parameters of PERB
Regulation 33237(a). The second Board agent chose, reasonably in our view, to issue an OSC
prior to determining whether or not an evidentiary hearing was necessary.
Board agents routinely use the OSC procedure in representation investigations to
determine if there are material facts in dispute and whether or not there is sufficient evidence
to decide a disputed matter without convening an evidentiary hearing. (Santa Ana, supra,
PERB Order No. Ad-383.) An OSC provides an opportunity for the party opposing a
representation petition to demonstrate the existence of a material issue of fact requiring
resolution through an evidentiary hearing. Since the party challenging a presumptively
appropriate bargaining unit bears the burden of proof, that party, here the Academy, must
demonstrate the existence of a material issue of fact. The OSC process balances the interests
of the parties by providing an employer the means to demonstrate the existence of a material
factual issue, while protecting employee representation rights by assuring that a hearing and
the accompanying delay in the exercise of employee representation rights will occur only
where a material factual issue exists.
We conclude that the Board agent's decision to issue an OSC prior to deciding whether
an evidentiary hearing was necessary, complies with PERB Regulation 33237(a), was the
proper course of conduct, and was not an abuse of his discretion.
19
first Board agent's alleged statements that a hearing would be necessary
or on her solicitation
of
a mutually agreeable date for a potential hearing.
Additionally, the Academy solicited the first Board agent to disqualify herself and.
withdraw. She did so. Thereafter, the case was assigned by PERB to a different Board agent,
who was himself free to determine the best course
of
action within the parameters
of
PERB
Regulation 33237(a). The second Board agent chose, reasonably
in
our view, to issue an OSC
prior to determining whether or not an
evidentiary hearing was necessary.
Board agents routinely use the OSC procedure
in
representation investigations to
determine
if
there are material facts in dispute and whether or not there is sufficient evidence
to decide a disputed matter without convening an evidentiary hearing. (Santa Ana, supra,
PERB Order No. Ad-383.)
An
OSC provides an opportunity for the party opposing a
representation petition to demonstrate the existence
of
a material issue
of
fact requiring
resolution through an evidentiary hearing. Since the party challenging a presumptively .
appropriate bargaining unit bears the burden
of
proof,
that
party, here the Academy, must
demonstrate the existence
of
a material issue
of
fact. The OSC process balances the interests
of
the parties by providing an employer the means to demonstrate the existence
of
a material
factual issue, while protecting employee representation rights by assuring that a hearing and
the accompanying delay in the exercise
of
employee representati~n rights will occur only
where a material factual issue exists.
We conclude that the Board agent's decision to issue an OSC prior to deciding whether
an evidentiary hearing was necessary, complies with PERB Regulation 33237(a), was the
proper course
of
conduct, and was not an abuse
of
his discretion.
19

5. 	The Second Board Agent Should Have Disqualified Himself
On July 1, the Academy asked the second Board agent to disqualify himself on the
grounds that under PERB Regulation 32155(c), it had to concur in his assignment to the case
and it had not done so. Alternatively, the Academy argued that the second Board agent had
demonstrated bias against it by "demanding" a response to his OSC within "two business days"
or "face dismissal." (Emphasis in original.) We are not persuaded.
PERB Regulation 32155(c) provides
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
written, or if oral, reduced to writing within 24 hours of the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. The request must be made prior to
the taking of any evidence in an evidentiary hearing or the actual
commencement of any other proceeding.
If such Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel or the Chief Administrative Law Judge, as appropriate,
who shall designate another Board agent to hear the matter.
Notwithstanding his or her disqualification, a Board agent who is
disqualified may request another Board agent who has been
agreed upon by all parties to conduct the hearing or investigation.
PERB has held that a "fixed anticipatory prejudgment" against a party must be shown to
establish bias sufficient for Board agent disqualification. (Gonzales Union High School
District (1985) PERB Decision No. 480 (Gonzalez); United Teachers of Los Angeles (Adams)
(2011) PERB Decision No. 2205 (UTLA (Adams); Coachella Valley Mosquito & Vector
Control District (2009) PERB Decision No. 2031-M.) Such prejudgment is established
through statements or conduct by the Board agent indicating a clear predisposition against a
party. (Gonzalez.) Erroneous legal or factual rulings, in themselves, do not indicate bias.
(Chula Vista Elementary EA, CTA (Larkins) (2003) PERB Order No. Ad-322.)
20
5.	
The Second Board Agent Should Have Disqualified
Himself
On July
1,
the Academy asked the second Board agent to disqualify himself on the
grounds that under PERB Regulation 32155(c), it had to concur
in his assignment to the case
and it had not done so. Alternatively, the Academy argued that the second Board agent had
demonstrated bias against it by "demanding" a response to his OSC within "two business days"
or
"face dismissal." (Emphasis in original.) We are not persuaded.
PERB Regulation 32155(c) provides
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
written,
or
if
oral, reduced to writing within 24 hours
of
the
request. The request shall be under oath and shall sp~cifically set
forth
all
facts supporting it. The request must be made prior to
the taking
of
any evidence in an evidentiary hearing or the actual
commencement
of
any other proceeding.
If
such Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel or the Chief Administrative Law Judge, as appropriate,
who shall designate another Board agent to hear the· matter.
Notwithstanding his or her disqualification, a Board agent who is
disqualified may request another Board agent who has been
agreed upon by all parties to conduct the hearing or investigation.
PERB has held that a "fixed anticipatory prejudgment" against a party must be shown to
establish bias sufficient for Board agent disqualification. ( Gonzales Union High School
District (1985) PERB Decision No. 480 (Gonzalez); United Teachers
of
Los Angeles (Adams)
(2011) PERB Decision No. 2205 (UTLA (Adams); Coachella Valley Mosquito & Vector
Control District (2009) PERB Decision No. 2031-M.) Such prejudgment is established
through statements or conduct by the Board agent indicating a clear predisposition against a
party. (Gonzalez.) Erroneous legal or factual rulings, in themselves, do not indicate bias.
(Chula Vista Elementary EA, CTA (Larkins) (2003) PERB Order No. Ad-J22.)
20

a. 	PERB Regulation 32155(c)
PERB Regulation 32155(c) requires that any request that a Board agent disqualify
himself or herself be made under oath and specifically set forth all facts supporting it. It is
undisputed that the Academy's request was not made under oath and therefore is not a valid
request for disqualification. On this basis alone, we affirm the Board agent's decision of
August 5, not to disqualify himself and reject the Academy's argument that he should have
disqualified himself.
In addition, we conclude that PERB Regulation 32155(c) does not require the
concurrence of the parties to the identity of a replacement Board agent. The plain language of
the final paragraph of PERB Regulation 32155(c) provides an alternative means of selecting a
replacement Board agent in which the disqualified Board agent requests another Board agent to
serve, rather than waiting for appointment of a successor by PERB's General Counsel or Chief
ALJ, as appropriate. Only in that instance is approval of the parties required. Therefore, even
if the Academy's request for disqualification of the second Board agent had been made
properly, the basis for its request lacks merit.
b . 	The Second Board Agent's Purported Bias
The Academy claims that the second Board agent demonstrated bias by requiring the
Academy to respond to the OSC within one week. According to the Academy, by the time it
received the OSC, it only had two days to respond. We are not persuaded.
The second Board agent's conduct fails to exhibit a "clear predisposition" against the
Academy. His statement in the OSC, that the Academy had failed thus far to provide sufficient
evidence to rebut the presumption that the proposed unit was appropriate, "did not indicate bias
but rather a candid and appropriate appraisal" of the Academy's position. (UTLA (Adams),
supra, PERB Decision No. 2205, at p. 7.) Moreover, rather than indicating a "fixed
21
a.
	PERB Regulation 32155{c)
PERB Regulation 32155(c) requires that any request that a Board agent disqualify
himself or herself be made under oath and specifically set forth all facts supporting it. It is
undisputed that the Academy's request was not made under oath and therefore is not a valid
request for disqualification. On this basis alone, we affirm the Board agent's decision
of
August 5, not to disqualify himself and reject the Academy's argument that he should have
disqualified himself.
In addition, we conclude that PERB Regulation 32155(c) does not require the
concurrence
of
the parties to the identity
of
a replacement Board agent. The plain language
of
the final paragraph
of
PERB Regulation 3215 5(c) provides an alternative means
of
selecting a
replacement Board agent in which the disqualified Board agent requests another Board agent to
serve, rather than waiting for appointment
of
a successor by PERB' s General Counsel or Chief
ALJ, as appropriate. Only in that instance is approval
of
the parties required. Therefore, even
if
the Academy's request for disqualification
of
the second Board agent had been made
properly, the basis for its request lacks merit.
b. 	The Second Board Agent's Purported Bias
The Academy claims that the second Board agent demonstrated bias by requiring the
Academy to respond to the OSC within one week. According to the Academy, by the time it
received the OSC, it only had two days to respond. We are not persuaded.
The second Board agent's conduct fails to exhibit a "clear predisposition" against the
Academy. His statement in the OSC, that the Academy had failed thus far to provide sufficient
evidence to rebut the presumption that the proposed unit was appropriate, "did not indicate bias
but rather a candid and appropriate appraisal" of the Academy's position. (UTLA (Adams),
supra, PERB Decision No. 2205, at p. 7.) Moreover, rather than indicating a "fixed
21

anticipatory prejudgment," the issuance of the OSC afforded the Academy a further
opportunity to present additional evidence in support of its position, without imposing on the
parties an unnecessary delay.
With regard to the purported two days the Academy had to respond, the Academy
properly calculated the due date for its submission in response to the OSC in accordance with
PERB regulations, and determined its response was due on July 1. Therefore, we fail to see
how the Academy was prejudiced or its rights abridged by the June 24 "deadline" stated in the
OSC. We conclude that even if the Academy had properly submitted a request for
disqualification on this ground, which it did not, the second Board agent would properly have
declined to disqualify himself.
Request for Stay
The Academy's request for stay was dealt with in an earlier decision. (See Children of
Promise, supra, PERB Order No. Ad-401.)
ORDER
The Board agent's administrative determination in Case No. LA-RR-1213-E is hereby
AFFIRMED.
Members Winslow and Banks joined in this Decision.
22
anticipatory prejudgment," the issuance
of
the
0SC
afforded the Academy a further
opportunity to present additional evidence in support
of
its position, without imposing on the
parties an unnecessary delay.
With regard to the purported two days the Academy had to respond, the Academy
properly calculated the due date for its submission in response to the
0SC
in accordance with
PERB regulations, and determined its response was due on July 1. Therefore, we fail to see
how the Academy was prejudiced or its rights abridged by the June 24 "deadline" stated in the
0SC.
	We conclude that even
if
the Academy had properly submitted a request for
disqualification on this ground, which it did not, the second Board agent would properly have
declined to disqualify himself.
Request for Stay
The Academy's request for stay was dealt with in an earlier decision. (See Children
of
Promise, supra, PERB Order No. Ad-401.)
ORDER
T~e Board agent's administrative determination in Case No. LA-RR-1213-E is hereby
AFFIRMED.
Members Winslow and Banks joined in this Decision.
22

ACADEMY,
REPRESENTATION
Employer, 	CASE NO. LA-RR-1213-E
ADMINISTRATIVE
DETERMINATION
INGLEWOOD TEACHERS ASSOCIATION, 	(August 5, 2013)
and
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CHILDREN OF PROMISE PREPARATORY
Petitioner.
Appearances: Bartsch & Haven, by Duane Bartsch, Attorney, for Children of Promise
Preparatory Academy; California Teachers Association, by Jean Shin, Staff Attorney, for
Inglewood Teachers Association.
Before Yaron Partovi, Hearing Officer.
INTRODUCTION
On January 18, 2013, the Public Employment Relations Board (PERB or Board)
received a request for recognition (petition), pursuant to PERB Regulation 33050,' from the
Inglewood Teachers Association/CTA/NEA (Petitioner) for a unit of all certificated non-
management, non-supervisory employees at Children of Promise Preparatory Academy Charter
School (Academy). The Academy is a small charter school located in Inglewood, California
that serves approximately 200 students in kindergarten through fourth grade and employs 13
employees, including eight certificated personnel. In summary, the Academy argues that: (1)
for several different reasons, the Petitioner's proposed unit is inappropriate; (2) PERB is
required to conduct a formal hearing to resolve the unit dispute; and (3) the undersigned Board
agent must be disqualified from hearing the matter. The Petitioner disputes all of the
Academy's arguments regarding these allegations. Pursuant to a June 17, 2013 Order to Show
31001 et seq.
PERB's Regulations are codified at California Code of Regulations, title 8, section
STATE OF CAI,rFORNIA
PUBLIC
EMPLOYMENT RELATIONS BOARD
CHILDREN OF PROMISE PREPARATORY
ACADEMY,
Employer,
and
INGLEWOOD TEACHERS ASSOCIATION,
Petitioner.
REPRESENTATION
CASE NO. LA-RR-1213-E
ADMINISTRATIVE
DETERMINATION
. (August 5, 2013)
Appearances: Bartsch & Haven, by Duane Bartsch, Attorney, for Children
of
Promise
Preparatory Academy; California Teachers Association, by Jean Shin, Staff Attorney, for
Inglewood Teachers Association.
Before Yaron Partovi, Hearing Officer.
INTRODUCTION
On January 18, 2013, the Public Employment Relations Board (PERB or Board)
received a request for recognition (petition), pursuant to PERB Regulation 33050, 1 from the
Inglewood Teachers Association/CTA/NEA (Petitioner) for a unit of all certificated non-
management, non-supervisory employees at Chil.dren
of
Promise Preparatory Academy Charter
School (Academy). The Academy is a small charter school located in Inglewood, California
that serves approximately 200 students in kindergarten through fourth grade and employs
13
employees, including eight cert_ificated personnel. In summary, the Academy argues
that
(1)
for several different reasons, ·the Petitioner's proposed unit is inappropriate; (2} PERB is
required to conduct a formal hearing to resolve the unit dispute; and (3) the undersigned Board
agent must be disqualified from hearing the matter. The Petitioner disputes all
of
the
Academy's arguments regarding these allegations. Pursuant to a June 17, 2013 Order to Show
1 PERB 's Regulations are codified at California Code of Regulations, title
8,
section
31001 et seq.

Cause (OSC), the Academy was required to submit legal argument and declarations in support
of its allegations. This administrative determination addresses the above issues.
PROCEDURAL HISTORY
On February 15, 2013, the Academy confirmed receipt of the request for recognition
and stipulated that "There is no organization currently recognized or certified as the exclusive
representative of our employees." On February 19, 2013, PERB received an alphabetical list
of employees in the proposed unit (i.e., all non-management, non-supervisory, and non-
confidential certificated teachers). On February 28, 2013, PERB issued an administrative
determination finding that the Petitioner had demonstrated majority support in accordance with
PERB Regulation 33050, subdivision (b) and requested that the Academy file an employer
response pursuant to PERB Regulation 33190. PERB also notified the parties that since the
Petitioner had evidenced majority support and no valid intervention was filed, recognition must
be granted unless the Academy doubted the appropriateness of the unit. (Gov. Code, $
3544.1'; PERB Regulation, $ 33480.)
On April 11, 2013, the Academy notified PERB that, pursuant to PERB Regulation
33190, it was denying recognition because it doubted the appropriateness of the proposed
bargaining unit on the single ground that "One employee remains on probationary status due to
poor performance." In an April 26, 2013 letter to PERB, the Petitioner claimed that the
Academy's stated reason for denying recognition (i.e., the unit is purportedly inappropriate
because it includes a probationary teacher with "poor performance") was "frivolous." The
Petitioner also requested the Board agent to promptly process the instant petition.
In an effort to promote settlement of the issues raised by the Academy, both parties
participated in a June 11, 2013 PERB settlement conference with a PERB Board agent. The
2 Unless otherwise noted, all statutory references are to the Government Code.
2
Cause (OSC), the Academy was required to submit legal argument and declarations in support
of
its allegations. This administrative determination addresses the above issues.
PROCEDURAL HISTORY
On February 15, 2013, the Academy confirmed receipt
of
the request for recognition
and stipulated that "There is no organization currently recognized or certified as the exclusive
representative
of
our employees." On February 19, 2013, PERB received an alphabetical list
of
employees in the proposed unit (i.e.,
all
non-management, non-supervisory, and non-
confidential certificated teachers). On February 28, 2013, PERB issued an administrative
determination finding that the Petitioner had demonstrated majority support in accordance with
PERB Regulation 33050, subdivision (b) and requested that the Academy file an employer
response pursuant to PERB Regulation 33190. PERB also notified the parties that since the
Petitioner had evidenced majority support and no valid intervention was filed, recognition must
be granted unless the Academy doubted the appropriateness
of
the unit. (Gov. Code, §
3544.1 2; PERB Regulation, § 33480.)
On April 11, 2013, the Academy notified PERB that, pursuant to PERB Regulation
33190, it was denying recognition because it doubted the appropriateness
of
the proposed
bargaining unit on the single ground that "One employee remains on probationary status due to
poqr performance." In an April 26, 2013 letter to PERB, the Petitioner claimed that the
Academy's stated reason for denying recognition (i.e., the unit is purportedly inappropriate
because it includes a probationary teacher with "poor performance") was "frivolous." The
Petitioner also requested the Board agent to promptly process the instant petition.
In an effort to promote settlement of the issues raised by the Academy, both parties
participated in a June 11, 2013 PERB settlement conference with a PERB Board agent. The
2 Unless otherwise noted, all statutory references are to the Government Code.
.
	.:
. -
::_:
t
//,.;;~g/
;__
.·
2

settlement conference did not result in a resolution and on June 13, 2013, the instant case was
assigned to the undersigned for further processing.
On June 17, 2013, this office issued the attached OSC affording the Academy the
opportunity to show cause why PERB should not certify the Petitioner as the exclusive
representative of the proposed unit of certificated teachers without an evidentiary hearing
given that the unit is presumed appropriate in accordance with Peralta Community College
District (1978) PERB Decision No. 77 (Peralta CCD).) The OSC also directed the Academy
to support its factual assertions "with declarations under penalty of perjury by witnesses with
personal knowledge. .." and "[iff the facts asserted are reliant on a writing, the writing must be
attached to the declaration and authenticated therein." The OSC directed the Academy to file
its response by no later than June 24, 2013. On June 24, 2013, the Academy confirmed that, in
accordance with PERB Regulation 32130, the deadline for it to file a response was extended to
July 1, 2013. On July 1, 2013, this office received the Academy's response to the OSC and
on July 11, 2013, the Petitioner filed a reply to the Academy's July 1, 2013, response.
RELEVANT FACTS
The Petitioner is an "employee organization" within the meaning of Educational
Employment Relations Act (EERA)," section 3540.1, subdivision (d). The Academy is a
"public school employer" within the meaning of section 3540.1, subdivision (k).
PERB Regulation 32130, subdivision (c), provides that "[a] five day extension of time
shall apply to any filing made in response to documents served by mail if the place of address
is within the State of California." PERB Regulation 32130, subdivision (c), also provides that
"[whenever the last date to file a document falls on a Saturday . . . the time period for filing
shall be extended to and include the next regular PERB business day." Here, since the fifth
day fell on a Saturday (June 29, 2013), the deadline was extended to the next regular PERB
business day (Monday, July 1, 2013).
*EERA is codified at Government Code section 3540 et seq. Statutory references are
to the Government Code unless otherwise specified.
w
settlement conference did not result in a resolution and on June 13, 2013, the instant case was
assigned to the undersigned for further processing.
On June 17, 2013, this office issued the attached OSC affording the Academy the
opportunity to show cause why PERB should not certify the Petitioner as the exclusive
representative
of
the proposed unit
of
certificated teachers without an evidentiary hearing
given that the unit is presumed appropriate in accordance with Peralta Community College
District (1978) PERB Decision No. 77 (Peralta CCD).) The OSC also directed the Academy
to support its factual assertions "with declarations under penalty
of
perjury by witnesses with
personal knowledge
...
" and
"[i]f
the facts asserted are reliant on a writing, the writing must be
attached to the declaration and authenticated therein." The OSC directed the Academy to file
its response by no later than June 24, 2013. On June 24, 2013, the Academy confirmed that, in
accordance with PERB Regulation 32130, the deadline for it to file a response was extended to
July
1,
2013. 3 On July
1,
2013, this office received the Academy's response to the OSC and
on July 11, 2013, the Petitioner filed a reply to the Academy's July
1,
2013, response.
RELEVANT FACTS
The Petitioner is an "employee organization" within the meaning
of
Educational
Employment Relations Act (EERA),4 section 3540.1, subdivision (d). The Academy is a
"public school employer" within the meaning
of
section 3540.1, subdivision (k).
3 PERB Regulation 32130, subdivision (c), provides that "[a] five day extension of time
shall apply to any filing made in response to documents served by mail
if
the place of address
is within the State of California." PERB Regulation 32130, subdivision (c), also provides that
"[w]henever the last date to file a document falls on a Saturday
...
the time period for filing
shall be extended to and include the next regular PERB business day." Here, since the fifth
day fell on a Saturday (June 29, 2013), the deadline was extended to the next regular PERB
business day (Monday, July 1, 2013).
4 EERA is codified at Government Code section 3540 et seq. Statutory references are
to the Government Code unless otherwise specified.
3

At the time the petition was filed with PERB, there were eight certificated teachers
employed by the Academy. Academy School Administrator Trena Thompson's July 1, 2013,
declaration states that one certificated teacher (unidentified) was on probationary status and
that two other unnamed teachers "stated they will not return to the Academy for the coming
school year." She further states that "the eight certified teachers are no longer employed by the
Academy as of the end of the school year, June 30th" and that the Academy intends to hire ten
new certificated teachers for the coming school year beginning July 1, 2013.
There is no dispute that one of the eight certificated teachers was on probationary
status. The Academy's OSC response asserts that there are four certificated teachers employed
in three classifications who have been designated "management": one Academic and Testing
Coordinator, one Technology Management Specialist, and two Instructional Lead Teachers.
However, the Petitioner disputes that any of the eight certificated teachers had such title
designations.
The job description of the Academic and Testing Coordinator provides that the
incumbent "serves as a primary classroom teacher" or "Master Teacher" that performs the
following: student instruction; supervises teachers; organizes, implements and develops
curriculum and student instruction programs; collaborates with the Academy Administrator to
"lead and nurture" school staff; advises the Academy Administrator concerning, among other
things, personnel management; and other "teacher leadership responsibilities." Additionally,
the job description provides that the Academic Testing Coordinator reports directly to the
School Administrator and is issued an annual performance evaluation.
The Academy's OSC response includes, as an exhibit-without any supporting
declarations under penalty of perjury-job descriptions for each of these three disputed
classifications.
4
At the time the petition was
fi
Ied with PERB, there were eight certificated teachers
employed by the Academy. Academy School Administrator Trena Thompson's July I, 2013, ·
declaration states that one certificated teacher (unidentified) was on probationary status and
that two other unnamed teachers '-'stated they will not return to the Academy for the coming
school year." She further states that "the eight certified teachers are
no
longer employed by the
Academy as
of
the_end
of
the school year, June 30th" and that the Academy intends to hire ten
new certificated teachers for the coming school year beginning July
1,
2013.
There is no dispute that one
of
the eight certificated teachers was on probationary
status. The Academy's OSC response asserts that there are four certificated teachers employed
in three classifications who have been designated "management": one Academic and Testing
Coordinator, one T~chnology Management Specialist, and two Instructional Lead Teachers.5
However, 'the Petitioner disputes that any
of
the eight certificated teachers had such title
.designations.
The
job
description
of
the Academic and Testing Coordinator provides that the
incumbent "serves as a primary classroom teacher" or "Master Teacher" that performs the
following: student instruction; supervises teachers; organizes, implements and develops
curriculum and student instruction programs; collaborates with the Academy Administrator to
"lead and nurture" school staff; advises·the Academy Administrator concerning, among other
things, personnel management; and other "teacher leadership responsibilities." Additionally,
the job description provides that the Academic Testing Coordinator reports directly to the
School Administrator and is issued an annual performance evaluation.
5 The Academy's OSC response includes, as an exhibit-without any supporting
declarations under penalty of perjury-job descriptions for each of these three disputed
classifications.
4

The job description of the Instructional Lead Teacher provides that, under the
supervision of the School Administrator, the incumbent "serves as a primary classroom
teacher" and is responsible for, among other things, the following duties: advising the
Academic and Testing Coordinator and School Administrator concerning various school
issues, including staff recruitment/hiring and teacher work assignments; monitoring school
staff performance; administering personnel policies and procedures; and training, evaluating
and supervising school staff. This position is issued an annual performance evaluation.
The Technology Management Specialist Teacher job description provides that, under
the supervision of the School Administrator, the incumbent "serves as a primary classroom
teacher" and is responsible for, among other things: training and advising teachers on
integrating technology into the classrooms; managing the microcomputer networks; advising
the Academy Administrator concerning use of technology programs; troubleshooting software
and hardware; and arranging for repairs. This position is issued an annual performance
evaluation.
POSITIONS OF THE PARTIES
Position of the Academy
The Academy asserts that an evidentiary hearing is needed in the instant matter to
address the following issues.
The Academy argues that the unit is not appropriate since one of the petitioned-for
certificated teachers was on probationary status.
The Academy also argues that while the Academic and Testing Coordinator, the
Technology Management Specialist, and the Instructional Lead Teachers are certificated
employees, their inclusion in the certificated unit is also inappropriate because they are
"management" employees pursuant to the section 3540.1, subdivision (g). Consequently, the
The
job
description
of
the Instructional Lead Teacher provides that, under the
supervision
of
the School Administrator, the incumbent ''serves
as
a primary classroom
teacher" and is respop.sible for, among other things, the following duties: advising the
Academic and Testing Coordinator and School Administrator concerning various school
issues, including staff recruitment/hiring and teacher work assignments; monitoring school
staff performance; administering personnel policies and procedures; and training, evaluating
and supervising school staff. This position is issued an annual performance evaluation.
The Technology Management Specialist Teacher job description provides that, under
the supervision
of
the School Administrator, the incumbent "serves
as
a primary .classroom
teacher" and is responsible for, among other things: training and advising teachers on
integrating technology into the classrooms; managing the microcomputer networks; advising
the Academy Administrator concerning use
of
technology programs; troubleshooting software
and hardware; and arranging for repairs. This position is issued
an
annual performance
evaluation.
POSITIONS OF THE PARTIES
Position
of
the Academy
The Academy asserts that an evidentiary hearing is needed in the instant matter to
address the following issues.
The Academy argues that the unit is not appropriate since one of the petitioned-for
certificated teachers was on probationary status.
The Academy also argues that while the Academic and Testing Coordinator, the
Technology Management Specialist, and the Instructional Lead Teachers are certificated
employees, their inclusion in the certificated unit is also inappropriate because they are
"management" employees pursuant to the section 3540.1, subdivision (g). Consequently, the
5

Academy claims that currently there is no majority j roof of support, since four of the eight
certificated employees are management employees who should not have been included in
PERB's proof of support determination. Additionally, argues Respondent, majority support
does not exist since the certificated teachers that signed the proof of support are no longer
employed by the Academy. Relying solely on the job descriptions of these three
classifications, the Academy argues that such positions perform work that "exceeds that of a
Teacher" since the disputed positions allegedly develop curriculum and policies "through
exercise of independent judgment," meet with community members, and advise the Academy
on school expenditures.
The Academy asserts that granting the instant recognition request would "impair" the
efficiency of its school's operation for the following reason:
The Academy is a small charter school with only 13 full-time
employees including the eight [certificated] teacher employees.
Experience and common-sense show that there can be no
increased efficiency or "improved employer-employee relations
through the medium of collective negotiations" when a school is
so small that everyone from the CEO to the janitor is expected to
chip in and help.
Finally, the Academy asserts that under the disqualification standard set forth in PERB
Regulation 32155, subdivision (c), PERB may not assign this petition to the undersigned
Hearing Officer, since the parties have not reached a mutual agreement that the undersigned
shall conduct the formal hearing. The Academy also asserts that the undersigned must be
disqualified for "prejudice" since the Academy was purportedly afforded only two business
days to respond to the OSC upon receiving it on June 20, 2013.
Position of the Petitioner
The Petitioner opposes an evidentiary hearing and requests that PERB summarily
certify the proposed unit as appropriate. According to the Petitioner, the Academy has failed
6
Academy claims that currently there is no majority ,
roof
of
support, since four
of
the eight
certificated employees are management employees who should not have been included in
PERB'
s proof
of
support determination. Additionally, argues Respondent, majority support
does not exist since the certificated teachers that signed the
proof
of
support are no longer
employed by the Academy. Relying solely
on
the
job
descriptions
of
these three
classifications, the Academy argues that such positions perform work that "exceeds that
of
a
Teacher" since the disputed positions allegedly develop curriculum and policies "through
exercise
of
independent judgment," meet with community members, and advise the Academy
on school expenditures.
The Academy asserts that granting the instant recognition request would "impair" the
efficiency
of
its schoo I's operation for the following reason:
The Academy is a small charter school with only 13 full-time
employees including the eight [ certificated] teacher employees.
Experience and common-sense show that there can be no
increased efficiency or "improved employer-employee relations
through the medium
of
collective negotiations" when a school is
so small that everyone from the CEO to the janitor is expected to
chip in and help.
Finally, the Academy asserts that under the disqualification standard set forth in PERB
Regulation 32155, subdivision (c), PERB may not assign this petition to the undersigned
Hearing Officer, since the parties have not reached a mutual agreement that the undersigned
-shall conduct the formal hearing. The Academy also asserts that the undersigned must be
disqualified for "prejudice" since the Academy was purportedly afforded only two business
days to respond to the OSC upon receiving it on June 20, 2013.
Position
of
the Petitioner
The Petitioner opposes an evidentiary hearing and requests that PERB summarily
certify the proposed unit as appropriate. According to the Petitioner, the Academy has failed
1
6

to show any reason why the proposed bargaining unit is inappropriate, has repeatedly missed
deadlines when providing PERB its decision to refuse recognition, has made "unfounded
arguments" concerning appropriateness of the unit, and has prevented timely recognition of the
Petitioner as the exclusive representative.
The Petitioner asserts that the "probationary" status of the employees is irrelevant
because an appropriate unit under EERA includes classroom teachers, except those that are
management, supervisory, and confidential.
The Petitioner also argues that the Academy's OSC response did not include facts
supported by declarations and authenticated writings-as required by the OSC-showing that
the incumbent Academic and Testing Coordinator, Technology Management Specialist
Teacher, and Instructional Lead Teacher classifications are actually responsible for
formulating Academy policy and administering Academy programs. The Petitioner further
asserts that the job descriptions of these positions, even if accepted as relevant for the unit
determination, do not describe duties demonstrating that incumbent employees have authority
to formulate Academy policies or develop institutional objectives. The Petitioner further
contends that there are no actual incumbent teachers in the bargaining unit that have held the
above job titles. In the alternative, Petitioner argues it would not be able to adequately prepare
for this hearing given that the identities of incumbent employees are unknown.
The Petitioner also argues that PERB should not credit the Academy's contention that
majority support for the petition has not been established. The Petitioner argues that the
turnover in teaching staff is irrelevant since proof of support is determined at the time the
petition is filed. (Kings County Office of Education (1990) PERB Decision No. 801.)
Finally, the Petitioner asserts that the undersigned should not be disqualified to hear
this matter and that the Academy misread PERB Regulation 32155, subdivision (c).
7
to show any reason why the proposed bargaining unit is inappropriate, has repeatedly missed
deadlines when providing PERB its decision to refuse recognition, has made "unfounded
arguments" concerning appropriateness
of
the unit, and has prevented timely recognition
of
the
Petitioner as the exclusive representative.
The Petitioner asserts that the "probationary" status
of
the employees is irrelevant
because an appropriate unit under
EERA
includes classroom teachers, except those that are
management, supervisory, and confidential.
The Petitioner also argues that the Academy's OSC response did not include facts
supported by declarations and authenticated
writings-as
required by the
OSC-showing
that
the incumbent Academic and Testing Coordinator, Technology Management Specialist
Teacher, and Instructional Lead Teacher classifications are actually responsible for
formulating Academy policy and administering Academy programs. The Petitioner further
asserts that the job descriptions
of
these positions~ even
if
accepted
as
relevant for the unit
determination, do not describe duties demonstrating that incumbent employees have authority
to formulate Academy-policies or develop institutional objectives. The Petitioner further
contends that there are no actual incumbent teachers in the bargaining unit that have held the
above job titles. In the alternative, Petitioner argues it would not be able to adequately prepare
for this hearing given that the identities of incumbent employees are unknown.
The Petitioner also argues that PERB should not credit the Academy's contention that
majority support for the petition
ha~
not been established. The Petitioner argues that the
turnover in teaching staff is irrelevant since proof
of
support is determined at the time the
petition is filed. 	(Kings County Office
of
Education (1990) PERB Decision No. 801.)
Finally, the Petitioner asserts that the undersigned should not be disqualified to hear
this matter and that the Academy misread PERB Regulation 32155, subdivision (c).
7

CONCLUSIONS OF LAW
I. 	Order to Show Cause
At issue here is whether it is necessary to hold a formal hearing in this matter to decide
the disputed questions raised by the petition. The Academy contends that an evidentiary
hearing must be held to resolve, among other things, the appropriateness of the proposed unit.
This contention is incorrect. PERB Regulation 33237, subdivision (a) (Board Investigation)
provides:
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 action as deemed necessary to decide the questions
raised by the petition. [Emphasis added.]
PERB Regulation 33300 (Notice of Hearing) provides:
If the Board determines that a hearing is necessary, the Board
shall serve a notice of hearing on each party. The Notice shall
state the date, time and place of the hearing. [Emphasis added.]
Consistent with PERB's Regulations, PERB utilizes the OSC process as a component of the
investigation process and is not required to conduct hearings in all cases. (Robert L. Mueller
Charter School (2003) PERB Order No. Ad-320; Los Angeles Unified School District (1993)
PERB Order No. Ad-250.) Additionally, where there are no material factual disputes to be
resolved, a hearing is not warranted. (Ibid.)
The OSC process gave the Academy a full opportunity to present facts-supported by
declarations under penalty of perjury- which, if true, would justify the exclusion of the
disputed positions from the proposed certificated unit. (OSC, p. 4; see Victor Valley
Community College District (2010) PERB Order No. Ad-388.) In that event, a hearing would
be necessary to enable PERB to resolve the substantial and material factual disputes.
However, if the Academy fails to establish a prima facie basis to overcome the presumption
CONCLUSIONS OF LAW
I.
	Order to Show Cause
At issue here is whether it is necessary to hold a formal hearing in this matter to decide
the disputed questions raised
by
the petition. The Academy contends that
ru:i
evidentiary
hearing must be held to resolve, among other things, the appropriateness
of
the proposed unit.
This contention is incorrect. PERB Regulation 3323
7,
subdivision (a) (Board Investigation)
provides:
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 action as deemed necessary to decide the questions
raised by the petition. 	[Emphasis added.]
PERB
Regulation 33300 (Notice
of
Hearing) provides:
If
the Board determines that a hearing is necessary, the Board
shall serve a notice
of
hearing on each party. The Notice shall
state the date, time and place
of
the hearing. 	[Emphasis added.]
Consistent with PERB
's
Regulations, PERB utilizes the OSC process as a component
of
the
investigation process and is not required to conduct hearings in all cases. (Robert
L. Mueller_
Charter School (2003) PERB Order No. Ad-320; Los Angeles Unified School District (1993)
PERB Order No. Ad-250.) Additionally, where there are no material factual disputes to be
resolved, a earing is not warranted. (Ibid.)
The OSC process gave the Academy a full opportunity to present
facts-supported
by
declarations under penalty
of
perjury-_which,
if
true, would justify the exclusion
of
the
disputed positions from the proposed certificated unit. 	(OSC, p. 4; see Victor Valley
<;ommunity College District (20 I 0) PERB Order No. Ad-3 88.) In that event, a hearing would
be necessary to enable PERB to resolve the substantial and material factual disputes.
However,
if
the Academy fails to establish aprimafacie basis to overcome the presumption
.
h
8

that the proposed certificated unit is appropriate in accordance with Peralta CCD, supra,
PERB Decision No. 77, a hearing would be unnecessary and could easily jeopardize
employees' representational rights under section 3543, subdivision (a). Specifically,
organizational efforts may be impeded by an employer unscrupulously disputing the
appropriateness of a proposed unit in such a manner as to cause delay via Board litigation.
(See Frontier Hotel (1982) 265 NLRB 343 at p. 344 ["Since our rules require a hearing only in
cases in which material facts are in dispute, hearings in all other cases would waste time,
money, and effort for all concerned, while unduly delaying resolution of the question
concerning representation and unjustifiably denying unit employees their right to have their
election choice implemented through the appropriate certification"]; see also, Palomar
Community College District (1992) PERB Decision No. 947 at fn. 1, Hesse, Chairperson,
concurring ["undoubtedly, employee free choice is best insured by the expeditious handling of
representational disputes. .. . For that reason, the Board itself will continue to endeavor to
resolve the representational cases in a more timely manner"].) Under these specific
circumstances presented here, it is proper and appropriate for PERB to rely solely on an
investigation and production of facts through an OSC, rather than setting the matter for an
evidentiary hearing. Therefore, as discussed in greater detail below, it is determined that a
hearing is not necessary.
. Section 3543, subdivision (a) provides in relevant part:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.
9
that the proposed certificated unit is appropriate in accordance with Peralta CCD, supra,
PERB Decision No. 77, a hearing would be unnecessary and could easily jeopardize
employees' representational rights under section 3543, subdivision (a).6 Specifically,
organizational efforts may be impeded by an employer unscrupulously disputing the
appropriateness
of
a proposed unit in such a manner as to cause delay via Board litigation.
(See Frontier Hotel (1982) 265 NLRB
j43
at p. 344 ["Since our rules require a hearing only in
cases in which material facts are
in
dispute, hearings in all other cases would waste time,
money, and effort for all concerned, while unduly delaying resolution
of
the question
concerning representation and unjustifiably denying unit employees their right to have their
election choice implemented through the appropriate certification"]; see also, Palomar
Community College District (1992) PERB Decision No. 94 7 at
fn. 1,
Hesse, Chairperson,
concurring ["undoubtedly, employee free choice is best insured by the expeditious handling
of
representational disputes. . . . For that reason, the Board itself will continue to endeavor to
resolve the representational cases in a more timely manner"].) Under these specific
circumstances presented here, it is proper and appropriate for PERB to rely solely on an
investigation and production
of
facts through an OSC, rather than setting the matter for an
evidentiary hearing. Therefore, as discussed in greater detail below, it is determined that a
hearing is not necessary.·
6 Section 3543, subdivision (a) provides in relevant part:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of repre_sentation on all matters .of
employer-employee relations.
9

A. 	Probationary Employee with "Poor Performance"
The Academy reiterates that the certificated unit desired by the Petitioner is
inappropriate since it includes an employee on probationary status due to "poor performance."
As stated in the June 17, 2013, OSC, there is a rebuttable presumption that "all
classroom teachers" be contained in a single unit. (Peralta CCD, supra, PERB Decision
No. 77.) The burden of proving inappropriateness of a comprehensive classroom teacher
bargaining unit is placed on the party opposing the unit. (Ibid.) PERB determines the
appropriateness of a unit by reviewing the "community of interest" factors, which include: the
extent to which employees share education and other special qualifications, training, and skills;
job functions; method of wages or pay schedule; hours of work; fringe benefits; supervision;
frequency of contact with other employees; integration with work functions of other
employees; and interchange with other employees. (See Los Angeles Unified School District
(1998) PERB Decision No. 1267.) As previously stated, the Petitioner's request for
recognition seeks to create a bargaining unit comprising solely of non-management, non-
supervisory certificated employees.
The "definition of a classroom teacher for the purposes of the EERA . . . [includes]
regular full-time probationary and permanent teachers employed by the district." (Petaluma
City Elementary and High School Districts (1977) EERB Decision No. 9.) The parties do not
dispute that at the time the petition was filed, there was an incumbent certificated teacher on
probationary status by virtue of "poor performance." As discussed in the OSC, the mere fact
that an employee is on probationary status by virtue of "poor performance," does not change
the outcome of the unit determination such that inclusion of the probationary employee renders
the unit inappropriate. In the OSC, the Academy was specifically instructed to provide PERB
Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
10
A.
	Probationary Employee with "Poor Performance"
The Academy reiterates that the certificated unit desired
by.
the Petitioner is
inappropriate since it includes an employee on probationary status due to "poor performance."
As stated in the June 17, 2013, OSC, there is a rebuttable presumption that "all
classroom teachers"
be
contained in a single unit. (Peralta CCD, supra, PERB Decision
No. 77.) The burden
of
proving inappropriateness
of
a comprehensive classroom teacher
bargaining unit is placed on the party opposing the unit. (Ibid.) PERB determines the
appropriateness
of
a unit by reviewing the "community
of
interest" factors, which include: the
extent to which employees share education and other special qualifications, training, and skills;
job
functions; method
of
wages or pay schedule; hours
of
work; fringe benefits; supervision;
frequency
of
contact with other employees; integration with work functions
of
other
employees; and interchange with other employees. (See Los Angeles Unifzed School District
(1998) PERB Decision No. 1267.) As previously stated, the Petitioner's request for
recognition seeks to create a bargaining unit comprising
so~ely
of
non-management, non-
supervisory certificated employees.
The "definition
of
a classroom teacher for the purposes
of
the EERA
...
[includes]
regular full-time probationary and permanent teachers employed by the district." (Petaluma
City Elementary and High School Districts (1977) EERB Decision No. 9.)'
7 The parties do not
dispute that at the time the petition was filed, there was an incumbent certificated teacher on
probationary status by virtue
of
"poor perf~rmance." As discussed in the OSC, the mere fact
that an employee is on probationary status by virtue
of
"poor performance," does not change
the outcome of the unit determination such that inclusion of the probationary employee renders
the unit inappropriate. In the OSC, the Academy was specifically instructed to provide PERB
7 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).

with evidence supporting a finding that probationary classroom teachers-including the
employee exhibiting "poor performance"-do not maintain sufficient community of interest
with other employees in a certificated unit to warrant their exclusion from that unit. The
Academy has not presented any factual evidence or legal argument supporting the assertion
that the probationary teacher has a separate and distinct community of interest from the
proposed unit based on the factors set forth in Los Angeles Unified School District, supra,
PERB Decision No. 1267.
Given the lack of a factual dispute concerning the probationary employee, a hearing is
not needed to address this legal issue. Accordingly, the Academy has not provided PERB with
any evidence that the mere existence of a probationary employee rebuts the Peralta CCD
presumption that the proposed unit is appropriate.
B. 	Management Employees
Section 3540.1, subdivision (g) provides:
"Management employee" means an employee in a position
having significant responsibilities for formulating district policies
or administering district programs. Management positions shall
be designated by the public school employer subject to review by
the [PERB].
As previously stated, EERA entitles public school employees the right to form
bargaining units and be represented in their employment conditions by an employee
organization of their choosing. ($ 3543, subd. (a).) Employees properly designated as
managers, on the other hand, are excluded from the definition of a public school employee
under EERA, and consequently are denied collective bargaining rights. ($ 3540.1 subd. (j);
Los Angeles Unified School District (2004) PERB Decision No. 1665 (LAUSD).)
Because of management employees' lack of collective bargaining rights, the Board has
found that "great care must be exercised in determining who should be considered a
11
with evidence supporting a findin f that probationary classroom
teachers-including
the
employee exhibiting "poor
performance"-do
not maintain sufficient community
of
interest
with other .employees
in
a certificated unit to warrant their exclusion from that unit. The
Academy has not presented any factual evidence or legal argument supporting the assertion
that the probationary teacher has a separate and distinct community
of
interest from the
proposed unit based on the factors set forth in Los Angeles Unified School District, supra,
PERB Decision No. 1267.
Given the lack
of
a factual dispute concerning the probationary employee, a hearing is
not needed to address this legal issue. Accordingly, the Acadeiny has not provided PERB with
any evidence that the mere existence
of
a probationary employee rebuts the Peralta CCD
presumption that the proposed unit
is
appropriate.
B.
	Management Employees
Section 3540.1, subdivision (g) provides:
"Management employee" means an employee _in a position
having significant responsibilities for formulating district poli~ies
or administering district programs. Management positions shall _
be designated by the public school employer subject to review by
the [PERB].
As previously stated, EERA entitles public school employees th~ right to form
bargaining units and be represented in their employment conditions by an employee
organization
of
their choosing.
	(§
3543, subd. (a).) Employees properly designated as
managers, on the other hand, are excluded from the definition
of
a public school employee
under EERA, and consequently are denied collective bargaining rights. (§ 354_0.1 subd.
G);
Los Angeles Unified School District (2004) PERB Decision No. 1665 (LA USD).)
Because
of
management employees' lack of collective bargaining rights, the Board has
found that "great care must be exercised in determining who should be considered a
11

management employee." (LAUSD, supra, PERB Decision No. 1665, quoting Oakland Unified
School District (1977) EERB Decision No. 15.) In other words, it must be demonstrated that
the position at issue is "clearly allied with management." (Paramount Unified School District
(1977) EERB Decision No. 33.) For similar reasons, the "burden of proof rests with the party
designating an employee as management." (LAUSD, supra, PERB Decision No. 1665, citing
San Francisco Unified School District (1977) EERB Decision No. 23.)
Although the definition of "management employee" is written in the disjunctive, it has
been narrowly construed to include only those employees who have significant responsibilities
for both formulating district policies and administering district programs. (Lompoc Unified
School District (1977) EERB Decision No. 13.) PERB has defined the "formulation of policy"
to include "the exercise of discretionary authority to develop and modify institutional goals and
priorities." (Hartnell Community College District (1979) PERB Decision No. 81 (Hartnell
CCD).) Discussing the definition of management employees, the Board in Hartnell CCD
further explained:
The administration of programs contemplates effective
implementation of the policy through the exercise of independent
judgment. Thus, managerial status contemplates those persons
who have discretion in the performance of their jobs beyond that
which must conform to an employer's established policy. The
question as to whether particular employees are managerial must
be answered in terms of the employees' actual job
responsibilities, authority and relationship to the employer.
Managerial status is not necessarily conferred upon employees
because they possess some limited authority to determine, within
established limits, curriculum, course content or budgetary
allocations. [Italics added.]
The Academy asserts for the first time in its OSC response, that the Academic and
Testing Coordinator, Technology Management Specialist, and Instructional Lead Teachers are
"management" positions that should be excluded from the bargaining unit. In the OSC, the
Academy was advised to provide factual assertions supported by "declarations under penalty of
12
management employee." (LAUSD, supra, PERB Decision No. 1665, quoting Oaklund Unified
School District (1977) EERB Decision No. 15.) In other words, it must
be
demonstrated that
the position at issue is "clearly allied with management." (Paramount Unified School District
(1977) EERB Decision No. 33.) For similar reasons, the "burden
of
proof rests with the party
designating an employee as management." (LAUSD, supra, PERB Decision No. 1665, citing
San Francisco Unified School District (1977) EERB Decision No. 23.)
Although the definition
of
"management employee" is written in the disjunctive, it has
been narrowly construed to include only those employees who have significant responsibilities
for both formulating district policies and administering district programs. (Lompoc Unified
School District (1977) EERB Decision No. 13.) PERB has defined the "formulation
of
policy"
to include "the exercise
of
discretionary authority to develop and modify institutional goals and
priorities." (Hartnell Community College District (1979) PERB Decision No.
81
(Hartnell
CCD).) Discussing the definition
of
management employees, the Board in Hartnell CCD
further explained:
The administration
of
programs contemplates effective
implementation
of
the policy through the exercise
of
independent
judgment. Thus, managerial status contemplates those persons
who have discretion in the performance
of
their jobs beyond that
which must conform to an employer's established policy. The
question as to whether particular employees are managerial must
be answered in terms
of
the employees' actual job
responsibilities, authority and relationship to the employer.
Managerial status is not necessarily conferred upon employees
because they possess some limited authority to determine, within
established limits, curriculum, course content or budgetary
allocations. [Italics added.]
The Academy asserts for the first time in its OSC response, that the Academic and
Testing Coordinator, Technology Management Specialist, and Instructional Lead Teachers are
"management" positions that should be excluded from the bargaining unit. In the OSC, the
Academy was advised to provide factual assertions supported by "declarations under penalty of
12

perjury by witnesses with personal knowledge." (OSC, p. 4.) The Academy has failed to
present evidence supported by declarations: (1) showing that the actual job duties of the
Academic and Testing Coordinator, Technology Management Specialist, and Instructional
Lead Teacher classifications include using independent judgment to formulate or administer
Academy programs; and (2) identifying the incumbent employees who filled such positions in
the last school year (2012-2013). The only evidence provided by the Academy are the job
descriptions of the disputed classifications that were merely attached as exhibits to the OSC
response. The OSC advised that "if the facts asserted are reliant on a writing, the writing must
be attached to the declaration and authenticated therein." (OSC, p. 4.) The job descriptions
provided by the Academy fail to comply with this requirement since the job descriptions are
undated, and are not attached to any declaration. Even if authenticated in accordance with the
OSC directive, the job descriptions fail to describe duties demonstrating that the disputed
positions have discretionary authority to formulate policies and institutional objectives.
(Hartnell CCD, supra, PERB Decision No. 81.)
Based on the above circumstances, a prima facie basis for excluding the disputed
positions from the proposed unit has not been established to justify a hearing to resolve
whether the four certificated employees are managers. (See e.g., Robert L. Mueller Charter
School, supra, PERB Order No. Ad-320 [a hearing concerning a representation request for
recognition not warranted where employer failed to provide sufficient evidence supporting its
In Santa Barbara Community College District (2011) PERB Decision No. 2212
(Santa Barbara CCD), at footnote 10, the Board considered whether a job description was
sufficient to establish that a position was a management position. The Board noted that while
the job description at issue included the phrase "policy development," it did not elaborate on
the disputed position's actual role in policy formulation. The Board held, consistent with
Hartnell, CCD, supra, PERB Decision No. 81, that management positions are determined
primarily by the position's actual job duties, not just by language in a job description. (Santa
Barbara CCD, supra, PERB Decision No. 2212.) Since the Academy's OSC response did not
attach the job descriptions to a declaration(s), the actual job duties of the disputed positions
cannot be ascertained.
13
pe1
.;:1
ry by witnesses with personal knowledge." (OSC, p. 4.) The Academy has failed to
present evidence supported by declarations: (1) showing that the actual job duties
of
the
Academic and Testing Coordinator, Technology Management Specialist, and Instructional
Lead Teacher classifications include using independent judgment to formulate or administer
Academy programs; and (2) identifying the incumbent employees who filled such positions
in
the last school year (2012-2013). The only evidence provided by the Academy are the job
descriptions
of
the disputed classifications that were merely attached as exhibits to the OSC
response. The OSC advised that
"if
the facts asserted are reliant on a writing, the writing must
be attached to the declaration and authenticated therein." (OSC, p. 4.) The job descriptions
provided
by
the Academy
fail
to comply with this requirement since the job descriptions are
undated, and are not attached to any declaration. 8 Even
if
authenticated in accordance with the
OSC .directive, the job descriptions fail to describe duties demonstrating that the disputed
positions have discretionary authority to formulate policies and institutional objectives.
(Hartnell CCD, supra, PERB Decision No. 81.)
Based on the above circumstances, a prima facie basis for excluding the disputed
positions from the proposed unit has not been established to justify a hearing to resolve
whether the four certificated employees are managers. 	(See e.g., Robert
L.
Mueller Charter
School, supra, PERB Order No. Ad-320 [a hearing concerning a representation request for
recognition not warranted where employer failed to provide sufficient evidence supporting its
8 In Santa Barbara Community College District (2011) PERB Decision No. 2212
(Santa Barbara CCD), at footnote 10, the Board considered whether a job description was
sufficient to establish that a position was a management position. The Board noted that while
the job description at issue included the phrase "policy development," it did not elaborate on
the disputed position's actual role in policy formulation. The Board held, consistent with
Hartnell, CCD, supra, PERB Decision No. 81, that management positions are determined
prima.rily by the position's actual job duties, not just by language in a job description. (Santa
Barbara CCD, supra, PERB Decision No. 2212.) Since the Academy's OSC response did not
attach the job descriptions to a declaration(s), the actual job duties of the disputed positions
cannot be ascertained.
13

objection to recognition].) As such the Academy does not overcome the presumption
established under Peralta CCD, supra, PERB Decision No. 77.
C. Efficiency of Operations
PERB must consider the effect of a proposed unit on an employer's ability to operate
efficiently. ($ 3545 subd. (a); San Francisco Community College District (1994) PERB
Decision No. 1068.) PERB balances any impact on efficiency with the "employees' right to
effective representation in appropriate units." (San Diego Unified School District (1977)
EERB Decision No. 8.) In balancing the impact on the efficient operations of an employer with
the employees' right to effective representation in appropriate units, the Board has never found
the efficiency factor to outweigh representation rights. (See Los Angeles Unified School
District, supra, PERB Decision No. 1267; Sweetwater Union High School District (1976)
EERB Decision No. 4.)
The Academy essentially argues-without any legal support-that given the school's
small size (i.e., approximately 13 employees), collective bargaining would impede the school's
ability to operate efficiently. The Academy's argument lacks merit for several reasons. First,
the factual assertions underlying this argument (i.e., the small size of unit would not improve
employer-employee relations) are not supported by declarations under oath. (See Victor Valley
Community College District (2010) PERB Order No. Ad-388 [petitioner's efficiency of
operations argument found unpersuasive since the underlying contention was not supported by
declarations under penalty of perjury]; Santa Ana Unified School District (2010) PERB Order
No. Ad-383.) Second, the Academy's concern that the EERA's requirement of meeting and
conferring with a single employee organization (i.e. Petitioner) would create an unstable
relationship and would be burdensome, seems implausible since the petitioned-for certificated
employees are entitled to organizational rights afforded under the EERA. (Santa Ana Unified
14
objection to recognition].) As such the Academy does
not
overcome the presumption
established under Peralta CCD, supra, PERB Decision No. 77.
C. 	Efficiency
of
Operations
PERB must consider the effect
of
a proposed unit on an employer's ability to operate
efficiently. (§ 3545 subd. (a); San Francisco Community College District (1994) PERB
Decision No. I 068.) PERB balances any impact on efficiency with the "employees' right to
effective representation in appropriate units." (San Diego Unified School District ( 1977)
EERB Decision No. 8.) In balancing the impact on the efficient operations
of
an employer with
the employees' right to effective representation in appropriate units, the Board has never found
the efficiency factor to outweigh representation rights. (See Los Angeles Unified School
District, supra, PERB Decision No. 1267; Sweetwater Union High School District (1976)
EERB Decision No. 4.)
The Academy essentially
argues-without
any legal
support-that
given the school's
small size (i.e., approximately
13
employees), collective bargaining would impede the school's
ability to operate efficiently. The Academy's argument lacks merit for several reasons. First,
the factual assertions underlying this argument (i.e., the small size
of
unit would not improve
employer-employee relations) are not supported by declarations under oath. (See Victor Valley
Community College District (2010) PERB Order No. Ad-388 [petitioner's efficiency
of
operations argument found unpersuasive since the underlying contention was not supported by
declarations under penalty
of
perjury]; Santa Ana Unified School District (2010) PERB Order
No. Ad-383.) Second, the Academy's concern that the EERA's requirement of meeting and
conferring with a single employee organization (i.e. Petitioner) would create an unstable
relationship and would be burdensome, seems implausible since the petitioned-for certificated
employees are entitled to organizational rights afforded under the EERA. (Santa Ana Unified
14

School District, supra, PERB Order No. Ad-383 [Board rejected employer's assertion that
representation petition should be denied on the basis that negotiating responsibilities increased
employer's operating costs]; Antelope Valley Community College District (1981) PERB
Decision No. 168 [Legislature found that "the potential loss of time spent in negotiations does
not outweigh the benefits of an overall scheme of collective bargaining"].) Finally, there is no
showing that the Academy's claimed impact on efficiency outweighs the certificated teachers'
right to representation in a single unit of classroom teachers. (Los Angeles Unified School
District, supra, PERB Decision No. 1267.) For these reasons, the Academy's assertion that
collective bargaining would impede the school's ability to operate efficiently is rejected.
Accordingly, since a factual dispute does not exist, a hearing is not necessary to adjudicate
whether the proposed unit is appropriate.
II. Proof of Support
According to the Academy, there is no longer proof of majority support for the petition
since the Academy no longer employs the majority of the employees who purportedly signed
the proof of support cards.
PERB Regulation 33075 provides in relevant part:
(a) Within 20 calendar days of the date of receipt of the request .
. . the employer shall file with the regional office an
alphabetical list. . . of employees in the claimed unit on the
date the request for recognition was filed with the employer.
(b) If, after initial determination, the showing is insufficient the
[PERB] may allow up to 10 calendar days to perfect the
showing of support.
(c) Upon completion of the review of the showing of support,
[PERB] shall inform the parties in writing of the
determination as to sufficiency or lack thereof regarding the
showing of support.
(Italics added.)
15
School District, supra, P 1
~RB
Order No. Ad-3
83
[Board rejected employer'.s assertion that
representation petition should be denied on the basis that negotiating responsibilities increased
employer's operating costs]; Antelope Valley Community College District (1981) PERB 	·
Decision No. 168 [Legislature found that "the potential loss
of
time spent
in
negotiations does
not outweigh the benefits
of
an
overall scheme
of
collective bargaining"].) Finally, there is no
showing that the Academy's claimed impact on efficiency outweighs the certificated teachers'
right to representation in a single unit
of
classroom teachers. (Los Angeles Unified School
District, supra, PERB Decision No. 1267.) For these reasons, the Academy's assertion that
collective bargaining would impede the school's ability to operate efficiently is rejected.
Accordingly, since a factual dispute does not exist, a hearing is not necessary to adjudicate
whether the proposed unit is appropriate.
II. 	Proof
of
Support
According to the Academy, there is
no
longer proof
of
majority support for the petition
since the Academy no longer employs the majority
of
the employees who purportedly signed
the proof
of
support cards.
PERB Regulation 33075 provides in relevant part:
(a) Within 20 calendar days
of
the date
of
receipt
of
the request .
. . the employer shall file with the regional office an
alphabetical list
...
of
employees in the claimed unit on the
date the request for recognition was filed with the employer.
(b) If, after initial determination, the showing is insufficient the
[PERB] may allow up to
IO
calendar days to perfect the
showing
of
support.
(c) Upon completion
of
the review
of
the showing
of
support,
[PERB] shall inform the parties in writing of the
determination as to sufficiency or lack thereof regarding the
showing of support.
(Itali_cs added.)
15

PERB received the alphabetical list of employees in the proposed unit (i.e., all non-
management, non-supervisory, and non-confidential certificated teachers) on February 19,
2013. In accordance with PERB Regulation 33075, PERB officially determined the adequacy
of proof of support for the claimed unit on February 28, 2013, and advised the parties of such.
While the Academy disputes that a majority proof of support currently exists in the claimed
unit, section 3544, subdivision (b) and PERB Regulation 33075 grant PERB sole authority to
determine the sufficiency of an employee organization's proof of support. Such proof of
support determinations are not subject to an interlocutory appeal. (Pasadena Area Community
College District (1990) PERB Order No. Ad-219.)
PERB Regulation 32700 provides that the proof of support must demonstrate that the
employee desires to be represented by the employee organization and identifies the information
that must be provided as to each employee signing the proof of support. Such proof of support
is valid for one year immediately prior to the date the petition is filed. (PERB Regulations,
32700, subd. (c).) The proof of support remains valid when filed even during the period of a
contested unit determination. (Davis Unified School District, et al. (1980) PERB Decision
No. 116.) The Board has found "meritless" an employer's argument that lack of support is
extinguished or revoked by a showing that the employee is no longer employed following
PERB's proof of support determination. (See e.g., Kings County Office of Education, supra,
PERB Decision No. 801.) With the exception of PERB Regulation 32700, subdivision (g),
which applies to proof of support obtained via fraud, coercion, or forgery-all inapplicable to
the instant matter-PERB regulations do not otherwise provide a mechanism for challenging
PERB's proof of support determination at this stage of the investigation.
Additionally, PERB Regulation 32700, subdivision (f), provides that proof of support
"shall remain confidential and not be disclosed . . . to any party other than the petitioner. . . ."
16
PERB received the alphabetical list of employees in the proposed unit (i.e., all non-
management, non-supervisory, and non-confidential certificated teachers) on February 19,
2013. 	In accordance with PERB Regulation 33075, PERB officially determined the adequacy
of proof of support for the claimed unit on February 28, 20 I 3, and advised the parties of such.
While the Academy disputes that a majority proof of support currently exists in the claimed
unit, section 354~, subdivision (b) and PERB Regulation 33075 grant PERB sole authority to
determine the sufficiency of an employee organization's proof of support. Such proof of
support determinations are not subject to an interlocutory appeal. (Pasadena Area Community
College District (1990) PERB Order No. Ad-219.)
PERB Regulation 32700 provides that the proof of support must demonstrate that the
employee desires to be represented by the employee organization and identifies the information
that must be provided as to each employee signing the proof of support. Such proof of support
is valid for one year immediately prior to the date the petition is filed. (PERB Regulations,
32700, subd. {c).) The proof of support remains valid when filed even during the period of a
contested unit determination. (Davis Unified School District, et al. ( 1980) PERB Decision
No. 116.) The Board has found "meritless" ·an employer's argument that lack of support is
extingui_shed or revoked by a showing that the employee is no longer employed following
PERB' s proof of support determination. 	(See e.g., Kings County Office of Education, supra,
PERB Decision No. 801.) With the exception of PE~ Regulation 3iiob, subdivision (g),
which applies to proof of support obtained via fraud, coercion, or forgery-all inapplicable to
the instant matter-PERB regulations do not otherwise provide a mechanism for challenging
PERB' s proof of support determination at this stage of the investigation.
Additionally, PERB Regulation 32700, subdivision (f), _provides that proof of support
"shall remain confidential and not be disclosed ... to any party other than the petitioner .... "
16

Accordingly, such information shall not be disclosed to determine whether the Association
provided majority support. (See also, San Diego Community College District (2001) PERB
Decision No. 1445 [proof of support cards not made a part of record].) Thus, an evidentiary
hearing is not warranted to address the proposition that there ostensibly exists a lack of
employee support for the claimed unit.
III. 	Request for Disqualification of Board Agent
PERB Regulation 32155, subdivision (c), provides, in relevant part:
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be.
written. .. . The request shall be under oath and shall specifically
set forth all facts supporting it. The request must be made prior
to the taking of any evidence in an evidentiary hearing or the
actual commencement of any other proceeding.
If such a Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel. . ., as appropriate, who shall designate another Board
agent to hear the matter. . . .
Notwithstanding his or her disqualification, a Board agent. who is
disqualified may request another Board agent who has been
agreed upon by all parties to conduct the hearing or investigation.
[Italics added.]
The Academy asserts that PERB may not appoint the undersigned Board agent to hear
this matter without agreement of all the parties and that the undersigned should, in any case, be
disqualified to hear the instant matter.
The Academy's disqualification request is deficient on several grounds. First, the
Academy's written request to disqualify the undersigned was not supported under oath in
accordance with PERB Regulation 32155, subdivision (c). Second, there is no showing that
the undersigned has exhibited any bias or "prejudice" towards the Academy by setting a June
24, 2013 deadline to respond to the June 17, 2013 OSC. Indeed, the Academy confirmed that
17
Accordingly, such information shall not be disclosed to determine whellEr the Association
provided majority support. (See also, San Diego Community College District (2001)
PERB
Decision No. 1445 [proof
of
support cards not made a part
of
record].) Thus, an evidentiary
hearing is not warranted to address the proposition that there ostensibly exists a lack
of
employee support for the claimed unit.
III. 	Request for Disqualification
of
Board Agent
PERB
Regulation 32 I 5
5,
subdivision ( c
), provides, in relevant part:
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
..
written
....
The request shall be under oath and shall specifically
set forth all facts supporting it. The request must be made prior
to the taking
of
any evidence in an evidentiary hearing or the
actual commencement
of
any other proceeding.
If
such a Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel.
..
, as appropriate, who shall designate another Board
agent to hear the matter
...
·.
Notwithstanding his or her disqualification, a Board agent.who is
disqualified may request another Board ag~nt who has been
agreed upon by all parties.to conduct the hearing or investigation.
[Italics added.]
The Academy asserts that PERB may not appoint the undersigned Board agent to hear
this matter without agreement
of
all the parties and that the undersigned should, in any case, be
disqualified to hear the instant matter.
The Academy's disqualification request is deficient on several grounds. First, the
Academy's written request to disqualify t~e undersigned was not supported under oath in
accordance with PERB Regulation 32155, subdivision (c). Second, there is no showing that
the undersigned has exhibited any bias or "prejudice" towards the Academy by setting a
J1:1ne
24, 2013 deadline to respond to the June 17, 20 I 3 OSC. Indeed, the Academy confirmed that
17

pursuant to PERB Regulation 32130, the deadline to file a response automatically extended to
July 1, 2013, thus allowing the Academy a full two weeks to submit a response. The Academy
has failed to present any legal authority showing that setting such a deadline means the
undersigned acted with bias or "prejudice." (See Gonzales Union High School District (1985)
PERB Decision No. 480 [bias not established unless Board Agent had "fixed anticipatory
prejudgment"].) Third, the Academy's argument is based on a misreading of PERB Regulation
32155, subdivision (c), as the regulation does not require PERB to designate a Board agent
based on the Academy's approval and there is no showing the assignment of the undersigned
was inconsistent with PERB's regulations. Accordingly, since the Academy does not plead
sufficient grounds for disqualifying the undersigned, the Academy's request is hereby denied.
CONCLUSION
In the present case, the Academy presented conclusions and characterizations in
response to the OSC without accompanying proper factual support rebutting the presumption
that the proposed unit of certificated employees is inappropriate. (Peralta CCD, supra, PERB
Decision No. 77.) Also, there is no supporting evidence that the petitioned-for unit includes
classroom teachers (i.e., Academic and Testing Coordinator, Technology Management
Specialist, and both Instructional Lead Teachers) with managerial status consistent with
section 3545, subdivision (b)(1). Finally, there was no evidence that the petitioned certificated
unit does not share a sufficient community of interest with all certificated teachers of the
Academy or that such unit adversely affects the efficient operation of the Academy. ($ 3545,
subd. (a).) Therefore, no formal hearing is necessary and it is determined that the petitioned
for unit sought by Petitioner is appropriate.
"Prejudice towards the Academy is also not established given that the Petitioner was
granted a shorter deadline of ten days (i.e., July 11, 2013) to reply to the Academy's response.
18
pursuant to PERB Regulation 32130, the deadline to file a response automatically extended to
July 1, 2013, thus allowing the
A(?.ademy
a full two weeks to submit a response. The Academy
has failed to present any legal authority showing that setting such a deadline means the
undersigned acted with bias or "prejudice. "9 (See Gonzales Union High School District (1985)
PERB Decision No. 480 [bias not established unless Board Agent had "fixed anticipatory
prejudgment"].) Third, the Academy's argument
is
based on a misreading
of
PERB Regulation
32155, subdivision (c), as the regulation does not require PERB to designate a Board agent
based on the Academy's approval and there is no showing the assignment
of
the undersigned
was inconsistent with PERB's regulations. Accordingly, since the Academy does not plead
sufficient grounds for disqualifying the undersigned, the Academy's request is hereby denied.
CONCLUSION
In the present case, the Academy presented conclusions and characterizations in
response to the OSC without accompanying proper factual support rebutting the presumption
that the proposed unit
of
certificated employees is inappropriate. (Peralta CCD, supra, PERB
Decision No. 77.) Also, there is no supporting evidence that the petitioned-for unit includes
classroom teachers (i.e., Academic and Testing Coordinator, Technology Management
Specialist, and both Instructional Lead Teachers) with managerial status consistent with
section 3545, subdivision (b)(l ). Finally, there was no evidence that the petitioned certificated
unit does not share a sufficient community
of
interest with all certificated teachers
of
the
Academy or that such unit adversely affects the efficient operation of the Academy. (§ 3545,
subd. (a).) Therefore, no formal hearing is necessary and it is determined that the petitioned
for unit sought by Petitioner is appropriate.
9 Prejudice towards the Academy is also not established given that the Petitioner was
granted a shorter deadline of ten days (i.e., July 11, 2013) to reply to the Academy's response.
18

DETERMINATION OF PROOF OF SUPPORT
PERB Regulation 33485 (Certification of Exclusive Representative) provides:
If the Board determines (1) the employee organization requesting
recognition has demonstrated proof of support of more than 50
percent of the employees in an appropriate unit, (2) no other
employee organization has demonstrated proof of support of at
least 30 percent of the employees, and (3) the employer has not
granted recognition, the Board shall certify the petitioner as the
exclusive representative.
As stated above, Petitioner has demonstrated proof of majority support in an
appropriate certificated unit. No other employee organization intervened to represent any of
the petitioned-for employees. Since the Academy has not granted recognition, it is HEREBY
CERTIFIED as of August 5, 2013, that Inglewood Teachers Association/CTA/NEA is the
exclusive representative of all employees in the unit set forth below.
Certificated Unit
Shall Exclude: All management, supervisory, and confidential personnel.
RIGHT OF APPEAL
An appeal of this decision to the Board itself may be made within ten calendar days
following the date of service of this decision. (Cal. Code Regs., tit. 8, $ 32360.) To be timely
filed, the original and five 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also $ 11020, subd.
Shall Include: All certificated personnel, including classroom teachers.
19
DETERMINA
TTON
OF PROOF OF SUPPORT
PERB Regulation 33485 (Certification
of
Exclusive Representative) provides:
If
the Board determines
(I)
the employee organization requesting
recognition has demonstrated proof
of
support
of
more than 50
percent
of
the employees in an appropriate unit, (2) no other
employee organization has demonstrated proof
of
support
of
at
least 3 0 percent
of
the employees, and (3) the employer has not
granted recognition, the Board shall certify the petitioner as the
exclusive representative.
As stated above, Petitioner has demonstrated proof
of
majority support in an
appropriate certificated unit. No other employee organization intervened to represent any
of
the petitioned-for employees. 	Since the Academy has not granted recognition, it is
HEREBY
CERTIFIED as
of
August 5, 2013, that Inglewood Teachers Association/CTA/NEA
is
the
exclusive representative
of
all employees in the unit set forth below.
Certificated Unit
Shall Include: All certificated personnel, including classroom teachers.
Shall Exclude: All management, supervisory, and confidential personnel.
RIGHT OF APPEAL
An
appe_al
of
this decision to the Board itself may be made within ten calendar d~ys
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
filed, the original and five 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also § 11020, subd.
19

(a).) A document is also considered "filed" when received by facsimile transmission before
the close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135 subdivision (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, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
$8 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, $ 32360, subd.
(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, $ 32370.)
If a timely appeal is filed, any other party may file with the Board an original and five
copies of a response to the appeal within ten calendar days following the date of service of the
appeal. (Cal. Code Regs., tit. 8, $ 32375.)
Service
All documents authorized to be filed herein must also be "served" upon all parties to
the proceeding and on the Sacramento 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, $ 32140 for the required contents.) The document will be considered properly
"served" when personally delivered, or when deposited in the mail or with a delivery service
properly addressed, or when sent by facsimile transmission in accordance with the
requirements of PERB Regulations 32090 and 32135, subdivision (d).
20
(a).) A dc<ument is also considered "filed" when received by facsimile transmission before
the close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135 subdivision ( 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§ 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, § 32360, subd.
(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,
§ 32370.)
If a timely appeal is filed, any other party may file with the Board an original and five
copies
of
a response to the appeal within ten calendar days following the date
of
service
of
the
appeal. (Cal. Code Regs., tit. 8, § 32375.)
Service
All documents authorized to _be filed herein must also be "served" upon all parties to
the proceeding and on the Sacramento 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, § 32140 for the required contents.) The document will be considered properly
"served" when personally delivered, or when deposited in the mail or with a delivery service
properly addressed, or when sent by facsimile transmission in accordance with the
requirements
of
PERB Regulations 32090 and 32135, subdivision (d).
20

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,
$ 32132.)
Yaron Partovi
Hearing Officer
Attachment
21
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,
§ 32132.)
21
Yaron Partovi
Hearing Officer
Attachment