Grossmont-Cuyamaca Community College District * * * SUPERSEDED, IN PART, by PERB Regulation 32110, effective 2/15/2021 (PERB A365E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GROSSMONT-CUYAMACA COMMUNITY
COLLEGE DISTRICT,
Employer,
and
GROSSMONT-CUYAMACA COMMUNITY
COLLEGE DISTRICT PART-TIME FACULTY
ASSOCIATION,
Petitioner,
and
UNITED FACULTY OF GROSSMONT-
CUYAMACA COMMUNITY COLLEGE
DISTRICT,
Exclusive Representative.
Case No. LA-SV-145-E
Administrative Appeal
PERB Order No. 	Ad- 365
J u n e 	2 0 , 	2007
Appearances: 	California Teachers Association by Rosalind D. Wolf, Attorney, for Grossmont-
Cuyamaca Community College District Part-Time Faculty Association; Gattey Baranic by
Michael P. Baranic, Attorney, for United Faculty of Grossmont-Cuyamaca Community
College District.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
SHEK, Member: 	This case is before the Public Employment Relations Board (PERB
or Board) on an appeal by Grossmont-Cuyamaca Community College District Part-Time
Faculty Association/CCA/NEA (Association) of a Board agent's dismissal (attached) of its
severance petition (petition), on the ground that it was untimely filed pursuant to Educational
* * *SUPERSEDED, IN PART, by PERB Regulation 32110, effective 2/15/2021* * *

Employment Relations Act (EERA)l section 3544.7(b)(1), and former PERB Regulation
33020.2 The Board agent stated in the dismissal dated April 20, 2006 that:
Based on the explicit language of EERA section 3544.7 (b)(I)
and the lack of specific case authority that would excuse the late
filing of this petition, the severance petition is therefore deemed
to be untimely filed and is dismissed. 	The employer may not
grant recognition of the Petitioner in this matter, pursuant to
EERA section 3544.1(c).
The Board has reviewed the entire record in this case, including but not limited to the
Association's motion to excuse the late filing, the Board agent's dismissal, the Association's
appeal, and letters from the United Faculty of Grossmont-Cuyamaca Community College
District (United Faculty) and the Grossmont-Cuyamaca Community College District (District).
Based upon this review, the Board affirms the dismissal and adopts the Board agent's dismissal
dated April 20, 2006, as the decision of the Board itself, and supplements it with the following
discussion.
BACKGROUND
The current exclusive representative of the unit in question is United Faculty, which
was certified as the exclusive representative on May 29, 1984. 	The approximate size of the
proposed part-time faculty unit is 850. 	A written agreement existed between United Faculty
and the District during the time in question. This written agreement expired on June 30, 2006.
lEERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq. 	The Board agent's dismissal was issued under former PERB Regulation 33020,
which became effective May 31, 2005, and was amended effective May 11, 2006, subsequent
to the period in question.
22

The Board agent found that the "window period , ,3 for filing a petition based on a
contract expiring on June 30, 2006, was March 3 through March 31, 2006. The Los Angeles
regional office of PERB (PERB office) received the petition after the close of business on
March 30, 2006, at 5:06 p.m., and filed it on April 3, 2006, the next business day. PERB was
closed for business on March 31, 2006, due to observance of Cesar Chavez Day, a state
holiday under Government Code section 6700.
The Association alleges in its appeal to the Board that Cesar Chavez Day is not an
observed holiday within the District, so the Association personnel had no prior knowledge of
the closure of the PERB office on March 31, 2006. Once they were aware of the state holiday,
the Association personnel arranged to have a District part-time faculty member, David Milroy
(Milroy), deliver the petition and proof of support to the PERB office on March 30, 2006.
While driving from San Diego to Los Angeles in the congested afternoon traffic, Milroy
allegedly called the PERB office thrice on the cell phone, encountered a traffic accident, and
lost his way. 	The Association nevertheless conceded that Milroy arrived at the PERB office
"just after 5:00 p.m."
The Association filed a motion to excuse the late filing on the basis that it made a good
faith effort to file the petition in a timely fashion once it realized that PERB would be closed
for business on March 31, 2006. 	The Board agent dismissed the petition, relying on Bassett
Unified School District (1979) PERB Order No. Ad-63 (Bassett), which affirmed the dismissal
of a decertification petition filed on the next regular business day (Monday), after the "window
period" had expired over a weekend.
3Section 3544.7(b)(1) and former PERB Regulation 33020.
33

DISCUSSION
In determining whether or not the Association's petition was timely filed, we must
address three issues. 	First, we have to decide whether the petition was timely filed "on the last
day set for filing," pursuant to former PERB Regulation 32l35(a),4 and what is commonly
known as the "holiday rule" in California general law. The "holiday rule" provides that if the
last day to perform an act falls on a holiday, the time is extended to the next business day.
(Code of Civil Procedure (CCP) secs. 12 and l2a, and Secs. 6707 and 6800.) Second, we
consider whether the petition was "actually received by the appropriate PERB office before the
close of business" according to former PERB Regulation 32135(a) and PERB authorities.
Lastly, if the petition is found to be untimely filed, we address whether or not the Board should
excuse the late filing for good cause pursuant to PERB Regulation 32136.5
The Association argues on appeal to the Board that former PERB Regulation 33020,
defining the window period, was contrary to the "holiday rule." 	The Association further
contends that the former PERB Regulation 32l30(b), which excepted the "window period"
from the application of the "holiday rule," was "unfair, inconsistent and unnecessary."
The United Faculty concurs with the Board agent's dismissal of the petition on the
ground that it was untimely filed. The District is neutral on the Association's petition, but
certifies that it received the Association's request on April 3, 2006.
Former PERB Regulation 32135(a), effective during the period in question, read "All
documents shall be considered 'filed' when the originals, and the required number of copies, if
any, are actually received by the appropriate PERB office before the close of business on the
last date set for filing." PERB regulation 32135(a) was amended effective May 11, 2006, to
read, in part, "actually received by the appropriate PERB office during a regular PERB
business day."
5PERB Regulation 32136 states, "A late filing may be excused in the discretion of the
Board for good cause only. 	A late filing which has been excused becomes a timely filing
under these regulations."
44

EERA section 3544.7(b)(1) sets forth the requirement for a severance petition as:
An election may not be held and the petition shall be dismissed if
either of the following exist:
(1) There is currently in effect a lawful written agreement
negotiated by the public school employer and another employee
organization covering any employees included in the unit
described in the request for recognition, or unless the request for
recognition is filed less than 120 days, but more than 90 days,
prior to the expiration date of the agreement.
Former PERB Regulation 33020, which was in effect when the Association filed its
severance petition, defined "window period" as follows:
'Window period' means the 29-day period established pursuant to
Government Code Sections 3544.1(c) and 3544.7(b)(l) which is
less than 120 days, but more than 90 days, prior to the expiration
date of a lawful written agreement negotiated by the public
school employer and the exclusive representative. 	The written
agreement expiration date means the last effective date of the
agreement. 	Notwithstanding the provisions of Section 32130, the
date on which the written agreement expires shall not be counted
for the purpose of computing the window period. 	Whenever the
last day of the window period falls on a Saturday, Sunday, or
holiday, as defined in Government Code Sections 6700 and 6701,
and state offices are closed, any petition required to be filed
during a window period must be filed on or before the last PERB
business day during the window period.
(Emphasis added.)
We first find that the Board agent correctly determined that the last day for filing the
petition was March 30, 2006, under the former regulations. 	The window period for filing the
petition was from March 3 through March 31, 2006. 	(See former Reg. 33020.) However,
March 31, 2006 was Cesar Chavez Day, a state holiday. The former Regulation 33020
contained a specific reference to Section 6700, which provides in part, "(t)he holidays in this
state are: ... (f) March 31 st known as 'Cesar Chavez Day'." As quoted above, former
Regulation 33020 did not apply the "holiday rule," and required petitions to be filed "on or
55

before the last PERB business day during the window period." 	Similarly, former PERB
Regulation 32130(b), which was in effect during the period in question, stated in part:
Except for filings required during a 'window period' as defined in
Section 33020, ..., whenever the last date to fie a document falls
on Saturday, Sunday, or a holiday, as defined in Government
Code Sections 6700 and 670i, or PERB offices are closed, the
time period for filing shall be extended to and include the next
regular PERB business day.66
(Emphasis added.)
Although Regulations 33020 and 32130(b) were subsequently amended to incorporate the
"holiday rule,7" we shall apply the regulations that were in effect when the filing of the petition
and the Board agent's dismissal occurred.
We now discuss how PERB authorities have defined "close of business." The Board
has established the "close of business" to be 5:00 p.m. 	In Shasta College Faculty Association
(Sloan) (2004) PERB Decision No. 1603, the Board specifically stated:
Sloan argues on appeal that the Board agent improperly found his
amended charge late-filed. Sloan has submitted documents
indicating that he filed his amended charge via facsimile at 4:59
p.m. on the day it was due. 	Obviously, by waiting until the last
minute - literally - Sloan took the risk that his amended charge
would not be received by PERB until after the close of business
at 5:00 p.m. 	(Emphasis added.)
The Board amended the above-quoted portion of former PERB Regulation 32130(b)
effective May 11, 2006, by removing the exception for filings required during a "window
period," to state as follows:
Whenever the last date to fie a document falls on Saturday,
Sunday, or a holiday, as defined in Government Code Sections
6700 and 6701, or PERB offices are closed, the time period for
filing shall be extended to and include the next regular PERB
business day.
7Effective May 11, 2006, the Board amended former PERB Regulation 33020 by
deleting the last sentence, thus extending the 29-day "window period" when the last day of the
period falls on Saturday, Sunday, or holiday, to include the next regular PERB business day.
66

In State of California (Water Resources Control Board) (1999) PERB Order
No. Ad-294-S, the Board referred to the Chief Administrative Law Judge's cover letter that
accompanied the proposed decision to infer that "close of business" meant 5:00 p.m.
In compliance with former PERB Regulations 33020, 32130(b) and 32135(a), the
petition in the present matter should have reached the PERB office no later than 5:00 p.m. on
March 30, 2006, to be considered timely filed. The petition was clocked in at 5:06 p.m. 	The
Association's untimely filing was due to their alleged ignorance of Cesar Chavez day as a state
holiday. 	Since Government Code section 6700 states that March 31 st is a state holiday, known
as "Cesar Chavez Day," the Association had, at the least, constructive knowledge of said
holiday. 	We therefore affirm the Board agent's dismissal of the petition.
Lastly, we decline to consider whether there was good cause for extending the deadline
for filing. We affirm the Board agent's finding that a good cause consideration under PERB
Regulation 32136 is inappropriate here due to the explicit language of EERA section 3544.7
(b)(1). 	As the Board stated in Bassett:
The window period provided by section 3544.7(b) is
unequivocally defined. 	For the Board to extend that period by
allowing the filing of decertification petitions outside its time
limits would be to override explicit legislative directions and
erode the right of the incumbent organization to pursue its
obligations as the exclusive representative.
ORDER
The severance petition in Case No. LA-SV-145-E is therefore deemed to be untimely
filed and is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member McKeag joined in this Decision.
7

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
" 	,
'~r	!~$0
,:, ~o, cw•
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916)327-6377
April 20, 2006
Rosalind D. Wolf, Attorney
California Teachers Association
11745 E. Telegraph Rd.
Santa Fe Springs, CA 90670
Timothy K. Garfield, Attorney
Stephenson Worley Garratt Schwartz Garfield & Praire, LLP
401 "B" Street, Suite 2400
San Diego, CA 92101-4200
Zoe Close, PresÌdent
United Faculty of Grossmont-Cuyamaca CCD
8800 Grossmont College Drive, Room 590E
El Cajon, CA 92020
Re: 	Grossmont-Cuyamaca Community College District
Case No. LA-SV-145-E
Dear Interested Parties:
Investigation of the severance petition filed in the above-referenced case has established the
following facts:
1. The current exclusive representative of the unit in question is
United Faculty of Grossmont-Cuyamaca CCD, which was
certified as the exclusive representative on May 29, 1984.
2. The approximate size of the proposed part-time faculty unit is
850.
3. 	A written agreement currently exists between the exclusive
representative and the employer. 	This written agreement expires
June 30, 2006.
This petition was filed pursuant to PERB Regulation 337001 which provides in relevant part
that:
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications

LA-SV-145-E
April 20, 2006
Page 2
(a) An employee organization may fie a request to become the
exclusive representative of an appropriate unit consisting of a
group of employees who are already members of a larger
established unit represented by an incumbent exclusive
representative by filing a request for recognition in accordance
with the provisions of Article 2 (commencing with Section
33050). All provisions of Articles 2 and 3 of this Subchapter shall
be applicable to a severance request except as provided in this
Article 6.
(b) 	Whenever the conditions of Government Code Section
3544.1(c) exist, a severance request for recognition or
intervention must be filed in accordance with Section 32135 with
the employer during the "window period" as defined by Section
33020.
The Educational Employment Relations Act (EERA) states at 3544.l(c) that:
The public school employer shall grant a request for recognition
filed pursuant to Section 3544, unless any of the following apply:
(c) There is currently in effect a lawful written agreement
negotiated by the public school employer and another employee
organization covering any employees included in the unit
described in the request for recognition, unless the request for
recognition is filed less than 120 days, but more than 90 days,
prior to the expiration date of the agreement.
EERA section 3544.7(b)(1) states:
An election may not be held and the petition shall be dismissed if
either of the following exist:
(1) There is currently in effect a lawful written agreement
negotiated by the public school employer and another employee
organization covering any employees included in the unit
described in the request for recognition, or unless the request for
recognition is filed less than 120 days, but more than 90 days,
prior to the expiration date of the agreement.
The definition of window period is found at PERB Regulation 33020. 	It provides:
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
ww.perb.ca.gov.
C
I

LA-SV-145-E
April 20, 2006
Page 3
"Window period" means the 29-day period established pursuant
to Government Code Sections 3544.1(c) and 3544.7(b)(1) which
is less than 120 days, but more than 90 days, prior to the
expiration date of a lawful written agreement negotiated by the
public school employer and the exclusive representative. 	The
written agreement expiration date means the last effective date of
the agreement. 	Notwithstanding the provisions of Section 32130,
the date on which the written agreement expires shall not be
counted for the purpose of computing the window period.
Whenever the last day of the window period falls on a Saturday,
Sunday, or holiday, as defined in Government Code Sections
6700 and 6701, and state offices are closed, any petition required
to be filed during a window period must be filed on or before the
last PERB business day during the window period. 	(Emphasis
added.)
The investigation has resulted in the administrative determination that the severance petition is
not timely filed. The window period for filing a petition based on a contract expiring on June
30 is March 3 through March 31. This petition was placed in U.S. mail to the employer and
current exclusive representative on March 30 and received by the employer on April 3. 	The
petition was filed with the Los Angeles Regional Office of PERB after the close of business on
March 30, 2006, at 5:06 p.m., and thus not filed with PERB until April 3, 2006 due to the
State's observance of Cesar Chavez Day on March 31, 2006.
Petitioner filed a Motion to Excuse the Late Filing, and cites its good faith efforts to file the
petition in a timely fashion once the petitioner learned that the PERB offices were going to be
closed on March 31. 	Counsel cites a series of cases in which PERB has excused the late filing
of documents with PERB. None of the cases cited by petitioner's counsel dealt with a
statutory defined time period for filing, but rather are concerned with appeals that are either
misrouted (San Diego Community College District (2001) PERB Order No. Ad-311), delayed
due to mailing errors (Fullerton Elementary School District (2004) PERB Order No. Ad-319),
or caused no prejudicial error (United Teachers of Los Angeles (2003) PERB Order No. Ad-
325).
.
In Bassett Unified School District (1979) PERB Order No. Ad-63, PERB reviewed the appeal
of the dismissal of a decertification petition filed on the next regular business day, Monday,
after the expiration of the "window period" over a weekend. 	PERB held that "(t)he window
period provided by section 3544.7(b) is unequivocally defined." The Board went on to state:
For the Board to extend that period by allowing the filing of
decertification petitions outside its time limits would be to
override explicit legislative direction and erode the right of the
incumbent organization to pursue its obligations as exclusive
representative.
I

LA-SV-145-E
April 20, 2006
Page 4
Based on the explicit language of EERA section 3544.7 (b)(1) and the lack of specific case
authority that would excuse the late filing of this petition, the severance petition is therefore
deemed to be untimely filed and is dismissed. The employer may not grant recognition of the
Petitioner in this matter, pursuant to EERA section 3544.1(c).
Right of Appeal
-
An appeal of this decision to the Board itself may be made within ten (10) calendar days
following the date of service of this decision. 	(Regulation 32360.) 	To be timely filed, the
original and five (5) copies of any appeal must be filed with the Board itself at the following
address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95814-4174
FAX: (916) 327-7960
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32l35(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. (Regulation
32135(b), (c) and (d); see also Regulations 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 (Regulation 32360(c)). 	An appeal will not
automatically prevent the Board from proceeding in this case. 	A party seeking a stay of any
activity may fie such a request with its administrative appeal, and must include all pertinent
facts and justifications for the request (Regulation 32370).
If a timely appeal is filed, any other party may fie with the Board an original and five (5)
copies of a response to the appeal within ten (10) calendar days following the date of service of
the appeal (Regulation 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 regional office. 	A "proof of service" must
accompany each copy of a document served upon a party or filed with the Board itself (see
Regulation 32140 for the required contents and a sample form). 	The document will be
considered properly "served" when personally delivered or deposited in the first-class mail
postage paid and properly addressed. 	A document filed by facsimile transmission may be
(

LA-SV-145-E
April 20, 2006
Page 5
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
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 (Regulation 32132).
Sincerely,
Roger Smith
Labor Relations Specialist
RCS
cc: Marianne Reynolds
Ben Lastimado