Grossmont Union High School District (PERB A466E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Employer,
and
AMERICAN FEDERATION OF TEACHERS
GUILD, LOCAL 1931,
Petitioner.
Case No. LA-RR-1270-E
PERB Order No. Ad-466
June 20, 2018
Appearance: Ochoa Law by Ricardo Ochoa, Attorney, for American Federation of Teachers
Guild, Local 1931.
Before Banks, Shiners, and Krantz, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by American Federation of Teachers Guild, Local 1931 (AFT)
from the Appeals Office’s denial of a request for an extension of time. The sole issue on
appeal is whether the prohibition on granting extensions of time in certain representation
matters set forth in PERB Regulation 32305, subdivision (c), applies to an appeal from an
administrative decision.1 Based on the regulation’s language, history, and purpose, we hold
that PERB Regulation 32305, subdivision (c), does not apply to an appeal from an
administrative decision. We accordingly reverse the denial of AFT’s extension request.
1 PERB’s Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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BACKGROUND
On May 26, 2017, AFT filed a request for recognition with PERB’s Office of the
General Counsel (General Counsel) pursuant to PERB Regulation 33050. AFT sought to
represent a proposed bargaining unit of adult education teachers at the Grossmont Union High
School District (District). The proposed unit included adult education teachers who teach
academic subjects, but excluded adult education teachers who teach non-academic subjects.
PERB determined that AFT’s request was accompanied by sufficient proof of support among
employees in the proposed unit.
On July 19, 2017, the District notified PERB that it was denying recognition of AFT
because it doubted the appropriateness of the proposed unit. The District asked PERB to
investigate whether the proposed unit was appropriate.
On October 17, 2017, the General Counsel issued an order to show cause (OSC)
requiring AFT to demonstrate why PERB should not dismiss its request for recognition
because the proposed unit appeared to be inappropriate. AFT filed a response to the OSC, and
the District filed a reply to AFT’s response.
On March 23, 2018, the General Counsel issued an administrative decision on the OSC.
The General Counsel determined the proposed unit was not appropriate because it excluded
adult education teachers who teach non-academic subjects.
Under the timelines in PERB’s regulations, an appeal from the administrative decision
was due no later than April 9, 2018.2 On March 29, 2018, AFT filed with the Board’s Appeals
2 Under PERB Regulation 32360, subdivision (b), an appeal from an administrative
decision must be filed no later than 10 days after the decision is served on the parties. April 2,
2018 was the tenth day following service of the decision in this case. Because the decision
was served on AFT by U.S. mail, PERB Regulation 32130, subdivision (c), gave AFT an
additional five days to file an appeal—until April 7, 2018. And because April 7, 2018 was a
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Office a written request for a three-week extension to file an appeal. The Appeals Office
denied the extension on March 30, stating: “Your request cannot be granted, pursuant to
PERB Regulation 32305, subdivision (c).” AFT filed a timely appeal from the denial of its
extension request.
Saturday, PERB Regulation 32130, subdivision (b), gave AFT until the next PERB business
day—April 9—to file an appeal.
DISCUSSION
AFT argues in its appeal that PERB Regulation 32305, subdivision (c), prohibits the
Board itself from granting an extension of time in a representation case only when a party is
filing exceptions to a proposed decision, not when, as here, a party is appealing an
administrative decision. Based on our review of the regulation’s language, history, and
purpose, we agree with AFT.
PERB Regulation 32305 states in full:
(a) Unless a party files a timely statement of exceptions to the
proposed decision, the decision shall become final on the date
specified therein.
(b) In cases arising under Section 32761, 32770, 32781, 33050,
33070, 33700, 40170, 40200, 51030, 51040, 51100, 51680,
61210, 61300, 61350, 61400, 61450, 71030, 71040, 71100,
71680, 81210, 81300, 81350, 81400, 81450, 91210, 91300,
91350, 91400, 91450 or 95150, and where exceptions are filed
pursuant to Section 32300, the Board agent’s decision shall
become final unless the Board itself issues a decision not later
than 180 days from the date the exceptions were filed with the
Board.
(c) The Board shall not grant extensions of time in cases before
the Board itself that are subject to subparagraph (b), above.
The first step in interpreting an administrative regulation is to “give the regulatory
language its plain, commonsense meaning.” (Price v. Starbucks Corp. (2011)
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192 Cal.App.4th 1136, 1145.) If the language is ambiguous, we may look to other sources of
interpretation, “including the purpose of the regulation, the legislative history, public policy,
and the scheme of which the regulation is a part.” (Manriquez v. Gourley (2003)
105 Cal.App.4th 1227, 1235.)
1. 	Plain Language of Regulation 32305
According to the plain language of PERB Regulation 32305, subdivision (c), the Board
itself may not grant an extension of time in a case that is subject to subdivision (b). For a case
to fall under subdivision (b), it must satisfy two requirements, as indicated by the use of the
conjunctive “and” to join the two phrases in the sentence’s introductory clause. (See In re
C.H. (2011) 53 Cal.4th 94, 101, citations and internal quotations omitted [“The ordinary and
usual usage of ‘and’ is as a conjunctive, meaning ‘an additional thing,’ ‘also’ or ‘plus.’”].)
First, the case must arise under one of the enumerated PERB Regulations. Second, the case
must be one where exceptions may be filed pursuant to Regulation 32300.
Under PERB Regulation 32300, exceptions may be filed only “to a Board agent’s
proposed decision issued pursuant to Section 32215.” Although Regulation 32215 does not
say so explicitly, its placement near the end of Subchapter 3 of PERB’s Regulations, entitled
“HEARINGS,” shows that the proposed decision is the culmination of the formal hearing
process. This interpretation is confirmed by PERB Regulation 32350, subdivision (a)(3),
which excludes from the definition of “administrative decision” “a decision which results from
the conduct of a formal hearing or from an investigation which results in the submission of a
stipulated record and a proposed decision written pursuant to Section 32215.”
Read as a whole, PERB’s Regulations create two possible tracks for a representation
case. The first track leads to a formal hearing where an evidentiary record is created, followed
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by a proposed decision that may be appealed to the Board itself by filing exceptions pursuant
to PERB Regulation 32300. The second track leads to an administrative decision, without a
formal hearing and thus without an evidentiary record, that may be appealed to the Board itself
by filing an appeal pursuant to PERB Regulation 32360. Because PERB Regulation 32305,
subdivision (b), applies only to cases “where exceptions are filed pursuant to Section 32300,”
only the first type of case, i.e., one that produces a proposed decision, falls under
subdivision (b). Consequently, subdivision (c)’s prohibition on granting extensions of time
applies only to cases where a proposed decision has been issued, not to cases that resulted in an
administrative decision.
2. 	Legislative History and Purpose of PERB Regulation 32305
Although we do not find the language of PERB Regulation 32305 ambiguous, we note
that the legislative history and purpose of the regulation further support our interpretation.
Effective January 1, 2012, Senate Bill 609 (Chapter 242, Statutes of 2011) amended the
statutes under PERB’s jurisdiction to facilitate faster resolution of representation matters.
Representative of these amendments is section 3541.35 of the Educational Employment
Relations Act (EERA):3
Notwithstanding any other law, if a decision by an administrative
law judge regarding the recognition or certification of an
employee organization as described in subdivision (l) of Section
3541.3 is appealed, the decision shall be deemed the final order
of the board if the board does not issue a ruling that supersedes
the decision on or before 180 days after the appeal is filed.
According to the legislative history, this language is intended to prevent public employers from
using appeals to the Board itself to delay recognition or certification of, and thus delay first
contract negotiations with, employee organizations that have been freely chosen by their
3 EERA is codified at Government Code section 3540 et seq.
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employees. (Assem. Com. on Public Employees, Retirement and Social Security, Rep. on Sen.
Bill No. 609 (2011-2012 Reg. Sess.) as amended March 24, 2011, p. 2.) To implement Senate
Bill 609, PERB added subdivisions (b) and (c) to Regulation 32305 effective July 1, 2013.
(Cal. Reg. Notice Register 2012, No. 43-Z, p. 1555.)
To understand how PERB Regulation 32305 implements EERA section 3541.35 and its
counterparts in other statutes, it is necessary to recognize how orders resulting from proposed
decisions and administrative decisions are treated differently under PERB’s Regulations.
Under subdivision (a) of Regulation 32305, a proposed decision becomes final if no exceptions
are filed. When exceptions are filed, the decision does not become final and the proposed
order is effectively stayed pending a decision by the Board itself. (Poway Unified School
District (2015) PERB Decision No. 2441, p. 8.)
In contrast to a proposed decision, an administrative decision “is considered final and
effective upon issuance” and therefore an appeal from such a decision does not automatically
stay the effect of the decision. (Children of Promise Preparatory Academy (2018) PERB
Decision No. 2558, p. 20, fn. 18; PERB Reg. 32370.4) To stay operation of an administrative
decision, the appealing party must file a request for stay pursuant to Regulation 32370, and the
Board must grant the request. (Poway Unified School District, supra, PERB Decision
No. 2441, p. 8.)
As its legislative history indicates, Senate Bill 609 sought to prevent public employers
from using the automatic stay resulting from the filing of exceptions to delay recognition and
4 PERB Regulation 32370 provides: “An appeal will not automatically prevent the
Board from proceeding in a case. Parties seeking a stay of any activity may file a request for a
stay with the administrative appeal which shall include all pertinent facts and justification for
the request. The Board may stay the matter, except as is otherwise provided in these
regulations.”
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first contract negotiations. Because they do not result in an automatic stay, appeals from
administrative decisions do not raise the same concerns about delay. Thus, EERA
section 3541.35—and by extension Regulation 32305, subdivisions (b) and (c), implementing
it—apply only to exceptions to proposed decisions, not to appeals of administrative decisions.
In conclusion, we hold that PERB Regulation 32305, subdivision (c), does not prohibit
the Board itself from granting an extension of time in a representation case where a party is
appealing an administrative decision. Accordingly, AFT’s extension request was improperly
denied.
ORDER
The Appeals Office’s administrative decision in Case No. LA-RR-1270-E is hereby
REVERSED and the matter is remanded to the Appeals Office for further processing.
Members Banks and Krantz joined in this Decision.
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