Santa Clarita Community College District (College of the Canyons) (PERB 1506E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PART-TIME FACULTY UNITED, AFT,

Charging Party, Case No. LA-CE-4357-E

PERB Decision No. 1506

SANTA CLARITA COMMUNITY COLLEGE
DISTRICT (COLLEGE OF THE CANYONS), January 8, 2003

Respondent.

LYN CHARLES "CHUCK" WHITTEN,
Case No. LA-CO-1092-E

Charging Party,

COLLEGE OF THE CANYONS FACULTY
ASSOCIATION,

Respondent.

BEVERLY JOANN COPE,
Case No. LA-CO-1093-E

Charging Party,

COLLEGE OF THE CANYONS FACULTY
ASSOCIATION,

Respondent.

Appearances: 	Law Offices
of
Robert Bezemek by Robert
J.
Bezemek and Martin Fassler,
Attorneys, for Part-Time Faculty United, AFT; Liebert Cassidy Whitmore by Mary L. Dowell,
Attorney, for Santa Clarita Community College District (College
of
the Canyons); California
Teachers Association
by
Michael D. Hirsch, Attorney, for Intervenor College
of
the Canyons
Faculty Association.
Before Baker, Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by Part-Time Faculty United, AFT (PFU),
of
a dismissal by an administrative
law judge (ALJ)
of
the unfair practice charge in Case No. LA-CE-4357-E. 	The charge
in
that
case alleged that the Santa Clarita Community College District (College
of
the Canyons)
(District) violated the Educational Employment Relations Act (BERA) 1
by encouraging
employees to join one employee organization over another by entering an agreement
with
the
College
of
the Canyons Faculty Association (COCFA), the exclusive representative
of
the full
time faculty, to modify the bargaining unit to include part-time instructors at a time
when
the
District was on notice that PFU was attempting to organize the part-time faculty. 	This conduct
was alleged to constitute violations ofEERA section 3543.5(a), (b) and (d).2
1 BERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 BERA section 3543.5 provides, in relevant part:
It shall be unlawful for a public school employer to do any the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

After reviewing the entire record in this case, including the proposed decision,
PFU's
exceptions, the District's response
to
the exceptions, COCFA's reply to the exceptions, and
an
informational brief filed by the California Labor Federation,3 the Board reverses the proposed
decision
of
the ALJ. 4
BACKGROUND
At the time
of
the events at issue herein, the District employed 159 full-time faculty and
376 part-time or "adjunct" faculty. 	There are many differences in the terms and conditions
of
employment between adjunct and full-time faculty, including, but not limited to such subjects
as amount
of
work, job security, level
of
pay, office space and benefits.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
( d) Dominate or interfere with the formation or administration
of
any employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another.
3 After the parties completed their filings to the Board, the California Labor Federation
filed a petition with the Board for permission to submit an amicus letter addressing issues
presented herein. Pursuant to PERB Regulation 32210 (PERB regs. are codified at Cal. Code
Regs., tit. 8, sec. 31001, et seq.), the Board grants the petition and accepts the amicus letter as
an informational brief. The arguments contained therein are consistent with those presented by
PFU and do not alter the Board's analysis
of
this case.
4 This case was consolidated by the ALJ for hearing and decision with Case Nos.
LA-CO-1092-E and LA-CO-1093-E. In those cases, two individuals, Charles Whitten
(Whitten) and Beverly Cope (Cope), alleged that COCFA interfered with their rights to
participate in the activities of PFU, in violation ofEERA section 3543.6(b). At the time
of
consolidation, it was determined that evidence presented on behalf of any charging party would
be presented on behalf of them all. As no exceptions were filed by or on behalf of Whitten or
Cope, the ALJ's dismissal of Case Nos. LA-CO-1092-E and LA-CO-1093-E is final. Thus,
only Case No. LA-CE-4357-E is before the Board herein.
3

On February 24, 1977, the Board
of
Trustees
of
the District voluntarily granted
recognition to COCF A as the exclusive representative
of
a bargaining unit composed entirely
of
full-time faculty. 	On March
1,
1977, the District notified PERB5 that the parties had been
able to agree upon an appropriate bargaining unit composed
of
full-time faculty.
Hourly paid instructors, known as "adjunct instructors," have never been represented by
an employee organization.
Michelle Harris (Harris) was an adjunct faculty member and representative on the
curriculum committee
of
the Academic Senate. In 1998, she approached former PFU President
Brad Reynolds (Reynolds), California Teachers Association (COCFA's statewide affiliate
organization) Representative Ray Barney (Barney), and current PFU President Lea Templer
(Templer), requesting that COCF A organize the adjunct faculty. They were not receptive to her
requests. Barney told Harris that their position could change
if
she obtained signatures
or
ballots. She obtained over 100 cards showing interest in representation and left Barney
messages to that effect, but Barney never returned her calls.
]'vfarcy Bregman (Bregman), another part-time faculty member, spoke with Templer
during the 2001-2002 school year and made the same request. Templer advised Bregman that
the full-time faculty were not interested in bringing the adjunct faculty into the bargaining unit.
At a COCFA meeting in January 2002 attended by adjunct faculty, a full-time faculty member
expressed the opinion that addition of part-time faculty to the full-time unit would "dilute the
vote"
of
the full-time members.
5 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
4

PFU began efforts to organize the adjunct faculty in September 2001. Four American
Federation
of
Teachers (AFT) members visited the college campus repeatedly during the fall
and spring semesters, distributing literature about AFT and answering questions about PFU.
They regularly set up a table, bearing the AFT logo, inside the campus administration building.
AFT lead organizer Linda Cushing (Cushing) and two other AFT organizers made certain the
District was aware
of
the organizing efforts by speaking with college President Dianne Van
Hook and District Assistant Superintendent/College Vice President Philip Hartley (Hartley) in
October 2001.
By November 2001, PFU had secured signatures on cards from approximately 20
percent
of
the faculty.
Shortly after PFU began its organizing campaign, COCF A began exploring how it
could bring adjunct faculty into the existing unit. On October 24, 2001, COCFA requested in
writing that the District modify the recognition clause in Article 2
of
the contract to include
adjunct instructors in the bargaining unit represented by COCF A. Subsequently, the District
received a copy
of
a unit modification petition filed with PERB by COCF A, absent a showing
of
interest, on October 30, 2001. The record contains no evidence that any notice was posted
to employees regarding either the request for recognition or the unit modification petition. The
District declined a request by COCF A to "sign
off'
on the unit modification document.
The Board agent informed COCFA by phone that, absent proof
of
majority support,
PERB would not process the unit modification petition, and the only means by which the
modification could take place was with the concurrence of the employer.
5

District Assistant Superintendent Hartley reported that the District then received a
verbal communication from COCFA, stating that they had been informed by PERB that the
appropriate method was to demand to bargain a change in the agreement. Hartley stated that
he called the Board agent, on November 2, 2001, to verify the communication from COCFA
and to solicit advice. Hartley further stated that the Board agent indicated that this was a
matter that could be negotiated and the District would have to respond, but that AFT would
likely file an unfair labor practice charge.
Hartley (and the District) also came to believe that
if
the District refused to bargain
with COCF A over its proposal, it would be subject to an unfair practice charge from COCF
A.
The distinction between mandatory versus permissive subjects
of
bargaining did not
come up in Hartley's conversation with the Board agent. The record does not indicate whether
Hartley obtained other advice that would have apprised him
of
the fact that such a proposal
was not a mandatory subject ofbargaining.6
The District held a regularly scheduled open meeting on November 14 at which
COCFA presented its unit modification proposal. The District's governing board president
called AFT organizer Cushing prior to the meeting to inform her that she had suddenly become
aware
of
a pending agreement between the District and COCFA to accrete the part-time
faculty, and to draw Cushing's attention to it, in case she wanted to speak to the board. 	Two
AFT organizers appeared at the meeting and spoke in opposition to the pending agreement,
arguing that it would violate employees' right to vote on their own representative. The board
took no action at that meeting.
6 See Lake Elsinore School District (1986) PERB Decision No. 603 (responding party
to a bargaining proposal is not required to waive a statutory right).
6

The next day, November 15, 2001, a District representative signed a tentative
agreement to modify the recognition clause
of
the agreement between the District and COCFA
to grant COCF A the right to represent the adjunct faculty. 	The same day, COCF A wrote to the
Board agent requesting that the unit modification petition be withdrawn. The Board agent
notified the District and COCFA by letter dated November 21, 2001, that PERB's records
would be adjusted to reflect the unit modification agreement. 	The District's governing board
approved the tentative agreement on December
5,
2001. The agreement also contained several
provisions regarding the terms and conditions
of
adjunct faculty employment, including a
provision that part-time faculty would not be required to pay an agency fee.
PFU support declined drastically after formation
of
the agreement between COCF A and
the District. On April 27, 2002, PFU filed a representation petition with PERB seeking to
represent a unit
of
the adjunct faculty. 7 That petition was accompanied by proof
of
majority
support within the proposed unit.
ALJ' S PROPOSED DECISION
The ALJ identified the issue relevant to this discussion as: "whether the District
unlawfully encouraged employees to join COCFA in preference to PFU or otherwise violated
EERA section 3543.5(a), (b) or (d) by entering into the unit modification agreement."
The District argued that the agreement was specifically permitted by PERB Regulation
32781, which provides, in relevant part:
Absent agreement
of
the parties to modify a unit, an exclusive
representative, an employer, or both must file a petition for unit
7 The proposed decision erroneously indicated that PFU's petition was filed on May 8,
2002. 	Based on its own records, the Board hereby takes administrative notice that PFU's
representation petition was filed with the District on April 26, 2002, and with PERB on April
27, 2002.
7

modification in accordance with this section. Parties who wish to
obtain Board approval
of
a unit modification may file a petition
in accordance with the provisions
of
this section.
(a) A recognized or certified employee organization may file
with the regional office a petition for modification
of
its units:
(1) To add to the unit unrepresented classifications or positions.
(Emphasis added.)
The District argued that the regulatory language, emphasized above, demonstrates that
the parties are permitted to modify a bargaining unit by agreement and that there is no contrary
Board precedent. The District further contended that, where, as here, there was no pending
question concerning representation based on a showing
of
sufficient support to secure
intervenor status for a competing organization or a pending petition for representation with
PERB or recognition with the District, the District could lawfully enter into a unit modification
agreement with COCFA. The ALJ found this to be an issue
of
first impression and that there
was "no decision directly on point, or even closely on point."
The ALJ began by looking at Hartnell Community College District (1978) PERB
Decision No. 54 (Hartnell). In Hartnell, an employer granted voluntary recognition to a
California School Employees Association (CSEA) affiliate for a wall-to-wall unit
of
classified
employees. The school district initially had objected to the union's request for recognition and
requested that PERB decide the appropriateness
of
the unit as well as hold a representation
election. A competing employee organization, Stationary Engineers, began organizing a subset
of operations employees, but failed to garner proof
of
support for its own representation
petition. The district was aware of the organizing activity. PERB rejected the Stationary
Engineers' objection to being denied intervenor status in the representation proceedings for the
purpose of carving out an operations unit on grounds that the Stationary Engineers failed to
8

create a question-concerning-representation because it did not timely file a valid petition for
recognition. However, PERB reversed the general counsel's dismissal
of
an unfair practice
allegation under Section 3543.S(d) on grounds that the district may have been unlawfully
motivated to grant CSEA recognition because
of
a preference for that entity.
The ALJ next looked to Santa Monica Community College District (1979) PERB
Decision No. 103 (Santa Monica). In that case, an employee organization had filed a petition
for recognition. Thereafter, the employer unlawfully met and conferred exclusively with the
faculty senate over matters within the scope
of
representation, provided the senate financial
assistance and support (typing and distribution
of
minutes, stationary and released time), and
made express statements favoring the senate, in violation
of
Section 3543.S(d). PERB rejected
the employer's argument that the employee organization failed to support its claim with a
showing
of
unlawful employer intent, and held instead that the employer owes a duty
of
strict
neutrality between competing employee organizations. Under PERB's objective test,
any
conduct that tends to influence the choice between competing organizations or provides
stimulus in one direction or another meets the threshold requirement for a violation, said the
ALJ. The ALJ also viewed the Board's ruling as limited to situations in which there is a
pending question concerning representation.
The ALJ noted that "Santa Monica has become an oft-cited case for the proposition
that an employer under PERB's jurisdiction owes a duty of strict neutrality vis-a-vis competing
employee organizations." However, he noted, "some
of
these cases adopt this test as though it
applies only in the context of a question-concerning-representation." 	(Citing Sacramento City
Unified School District (1982) PERB Decision No. 214 (Sacramento City); Pittsburg Unified
School District (1983) PERB Decision No. 318 (Pittsburg); Clovis Unified School District
9

(1984) PERB Decision No. 389; Office
of
Kem County Superintendent
of
Schools (1985)
PERB Decision No. 533.) However, he acknowledged, at least one case applied the strict
neutrality requirement even in the absence
of
a question concerning representation. 	(Citing
Long Beach Community College District (1998) PERB Decision No. 1278 (Long Beach). The
ALJ asserted that "The existence
of
a question-concerning-representation is assumed
but
never
explicated." He found PERB precedent insufficient to resolve the instant case, saying, "None
of
these cases addresses the question whether granting 'recognition' to one
of
two competing
employee organizations by virtue
of
exercising the procedure under PERB 's unit modification
regulation constitutes an unlawful expression
of
preference or otherwise violates section
3543.5(d)."
For guidance, the ALJ turned to case law from the National Labor Relations Board
(NLRB) and federal courts. He opined that, in the context
of
initial election campaigns
involving rival organizations, the current private sector rule is that strict employer neutrality is
required only when a representation petition has been filed with the NLRB. (Citing Bruckner
Nursing Home (1982) 262 NLRB 955, 956 [110 LRRM 1374] (Bruckner).)
The ALJ also examined private sector case law addressing an employer's duty to
bargain with an incumbent union being challenged by a rival organization through a
decertification campaign. In RCA del Caribe (1982) 262 NLRB 963 [110 LRRM 1369])
(RCA), the NLRB held that an employer is not relieved
of
its duty to bargain with an
incumbent merely because a rival organization has filed a decertification petition, unless the
employer has a good faith doubt regarding the incumbent's majority status. The ALJ noted
that RCA was cited approvingly in Pittsburg.
10

In light
of
that case law, the ALJ said,
My reading
of
the foregoing authorities leads me to conclude that
a public school employer that agrees with an exclusive
representative to modify a unit so as to cover previously
unrepresented employees does not violate section 3543.S(d)
unless the rival employee organization has on file with PERB a
representation petition (with proof
of
support) and the public
school employer has been notified
of
such. Once on notice, the
public school employer owes a duty
of
strict neutrality and may
not grant the unit modification.
(Proposed dee. at pp.15-16; fn. omitted.)
The ALJ offered a "three-part rationale" for that conclusion.
First, the ALJ found that a public school employer's granting
of
a unit modification
petition under PERB Regulation 32871 "shares similarities" with the situation presented in the
NLRB's Bruckner decision. According to the ALJ's understanding
of
Bruckner, the NLRB
approves an employer's voluntary recognition
of
one competing employee organization over
another in the absence
of
a petition for representation because (
1)
doing so serves the neutral
purpose
of
effectuating employees' statutory rights to engage in collective bargaining, and (2)
the importance
of
that purpose outweighs any resulting infringement on employees' right to
freely choose their representative.
The ALJ acknowledged that Bruckner could be distinguished on grounds that,
in
the
situation at issue in the instant case, the ALJ's proposed rule would preclude inquiry into
whether the favored union enjoyed majority support "within the subset
of
unrepresented
employees."
Second, the ALJ focused on differences between the National Labor Relations Act
(NLRA) and EERA. The ALJ accepted the view "that section 3543.S(d), like [LM:RAJ
section 8(a)(2), involves the balancing of employee free choice and a countervailing neutral
11

purpose
of
the EERA." However, reasoned the ALJ, "PERB has noted in the context
of
representation issues under the EERA, that the Legislature was less concerned with free choice
than was Congress." (Citing Los Angeles Unified School District (1998) PERB Decision
No. 1267 (Los Angeles).)
In Los Angeles, a rival union attempted to sever a group
of
bus drivers from a larger
operations-support unit. The Board rejected the union's argument that severance was
mandated because employee free choice was
of
"paramount concern." Language differences
between EERA and the NLRA and Board precedent indicate a preference for large bargaining
units with strong shared community
of
interests over proliferation
of
small units, according to
the ALJ' s interpretation
of
Los Angeles. As an example, the ALJ cited EERA section
3545(b)(l), which states:
(b) In all cases:
(1) A negotiating unit that includes classroom teachers shall not
be appropriate unless it at least includes all
of
the classroom
teachers employed by the public school employer, except
management employees, supervisory employees, and confidential
employees.
In light
of
the foregoing, the ALJ found that PFU's free-choice argument "weighs less
convincingly on the side
of
a section 3543.S(d) violation." The ALJ also said, "Moreover, the
less convincing argument for employee free choice here sufficiently offsets the absence
of
any
requirement that the incumbent demonstrate majority support within the classifications it seeks
to accrete." This sentence appears to mean that attenuation
of
free choice rights under BERA
offsets or negates problems posed by the fact that allowing the unit modification by agreement
absolves the favored union from proving it enjoys majority support within the group it seeks to
12

add to the unit. The ALJ added, "Especially where the challenging rival has not yet
established proof
of
support (either majority, or even 30 percent), there appears to be no
presumptive risk that the employer is 'recognizing' a union with only minority support,
understanding,
of
course, the fluid nature
of
employee support."
The ALJ acknowledged that "COCF A may have been able to accomplish through
agreement what it might not have been able to achieve otherwise by organizing support among
the part-timers. And PERB does have the authority to require a proof
of
majority support for a
unit modification petition where the number
of
positions sought to be added is substantial, as it
is here. (PERB Reg. 32781(e).)8 Nonetheless, the ALJ found that "Regulation 32781 evinces
no intent that such a requirement is a condition
of
the employer agreeing to a proposal to
accrete positions to an already recognized unit." Further, the ALJ found "there is nothing in
PERB's regulation qualifying the right to agree to a unit modification by reference to section
3543.S(d) or similar language." The ALJ concluded "it is logical to infer that through its
regulation, PERB has expressed its intent that the issue
of
majority support in unit
modifications achieved through agreement is one ceded to the discretion
of
the employer."
The ALJ' s third rationale was "borrowed" from his interpretation
of
Bruckner:
requiring "'strict neutrality' by a public school employer that has knowledge
of
organizing
activity by a rival employee organization, but is unaware
of
the rival's qualifying
proof of
support, would lead to lengthy,
if
not futile, efforts by the employer to respect employee free
choice. It would also invite abuse by disingenuous rivals."
8 An employee organization seeking to represent a separate unit of unrepresented
employees would need proof of majority support. (PERB Reg. 33050.)
13

The ALJ acknowledged that "Long Beach (No. 1278) perhaps implies that the duty
of
strict neutrality applies regardless
of
the existence
of
a question-concerning-representation,
although that issue was not actually presented." In Long Beach (No. 1278), the employer
allowed an informational presentation by an employee organization seeking to decertify the
incumbent by way
of
a severance petition. PERB found that allowing the presentation,
although not on official work time, constituted an unlawful grant
of
support to the challenging
union because the meeting took place during a week-long in-service training, was listed on the
employer's official schedule, immediately followed a mandatory training session, and occurred
one day before the incumbent became vulnerable to decertification.
The ALJ said "Long Beach is distinguishable because it is a case involving the
provision
of
unlawful assistance. It would be a rare case where the discriminatory provision of
such assistance (typically financial, or in-kind services) could be construed as furthering a
competing neutral purpose
of
the Act."
The ALJ concluded that, because PFU had not yet filed a representation petition with
PERB at the time the District and COCFA entered into the unit modification agreement, the
District did not violate EERA section 3543.S(d), and recommended dismissal
of
that charge.
He also recommended dismissal
of
the 3543.S(a) and (b) charges because they were based on
the same conduct, which the ALJ found was lawful.
PFU'S EXCEPTIONS
In its exceptions, PFU asserts that the ALJ improperly failed to make numerous factual
findings that were supported by the record. 	Among those allegedly omitted findings were that
that COCFA lacked support, and the District lacked a good faith belief that COCF A had the
support, of an uncoerced, unassisted majority, any majority, or a single member of the adjunct
14

faculty during the relevant time periods. PFU also excepted on grounds that the ALJ failed to
legally conclude that the agreement between the District and COCFA deprived employees
of
their rights to freely choose their representative or to choose not to be represented.
	PFU
further asserts that the ALJ erred by failing to conclude that the District violated EERA when
it
agreed to the modification without determining whether COCF A enjoyed majority support
among the adjunct faculty, and where COCFA was not demonstrated to have majority support.
PFU excepts to much
of
the ALJ' s legal analysis, finding his interpretation
of
PERB
and
NLRB precedent inaccurate and challenging his determination that PERB precedent is
inadequate to resolve this case. The remainder
of
PFU's exceptions relate to community
of
interest and appropriateness
of
COCF
A's
proposed bargaining unit.
PFU' s brief in support
of
its exceptions emphasized the differences in terms and
conditions
of
employment between full-time and adjunct faculty. 	PFU argued that
EERA
requires strict neutrality between competing organizations, more strongly protects employee
free choice than the NLRA, and that the ALJ's authorization
of
the unit modification
agreement under PERB Regulation 32781 violates EERA section 3543.5(d). PFU also
contended that the ALJ erred by "rejecting" the Board's earlier decisions in Hartnell,
Sacramento City and Long Beach (No. 1278).
PFU also argued that the District's voluntary recognition
of
COCFA had the "natural
and inevitable effect"
of
encouraging part-time faculty to participate in COCF A and to
discourage them from participating in PFU. Moreover, argued PFU, under NLRB case law,
the unit modification agreement in the instant case would be found unlawful because the
District had no evidence that COCFA enjoyed majority support among adjunct faculty.
15

Finally, COCF A argued that the District violated EERA section 3543 .5(d) by insisting that
COCFA place an adjunct facuity empioyee on the COCF A bargaining team.
DISTRICT'S RESPONSE TO EXCEPTIONS
The District argues in its response to PFU's exceptions that the ALJ's decision
was
well reasoned and founded on solid precedent and should be upheld. The District argues that
the ALJ correctly determined that entering the unit modification agreement did not violate
EERA section 3534.5(d). The District contends that its statutory duty to bargain in good faith
with the exclusive representative, COCFA, justified its actions in this case. Nothing
in
the
language
of
EERA suggests that it is "more protective" than the NLRA, contends the District.
The District argued that, in cases requiring employer neutrality, PERB has either held
or assumed there was evidence
of
support for a rival organization. In this case, such evidence
was lacking, contends the District. Moreover, the District faced the countervailing duty to
bargain with COCFA.
The District relies on the prefatory language in PERB Regulation 32781 that "Absent
agreement
of
the parties to modify a unit," a party must file a petition. 	That language and
PERB precedent make clear the parties can agree to modify a unit, argues the District.
The District also contends that Regulation 32781, as applied by the ALJ, "furthers the
EERA's twin purposes
of
fostering employer and union agreements and
of
encouraging the
most efficient and encompassing
of
units possible." EERA "unquestionably has these goals as
part
of
its legislative history, argued the District. (Citing Los Angeles.)
The District also emphasized that "PERB precedent makes it clear that a bargaining
unit consisting of both full-time and part-time faculty members is the presumptively
16

appropriate unit." (Citing Los Rios Community College District (1977) EERB Decision
No. 18-E; Hartnell.) Only under "limited circumstances" will the Board allow exceptions to
that presumption, argued the District. In Long Beach Community College District (1989)
PERB Decision No. 765 (Long Beach), the union "refused to represent the part-time faculty
members," noted the District. (Emphasis in original.) The District argued that Long Beach
(No. 765) is distinguishable:
... Long Beach does not say, and has never been held to
say, that a union representing full-time faculty members that
has historically declined to represent part-time faculty
members, but which changes its mind, can never represent
the presumptively appropriate unit. Here, it is clear from
the record that the COCF A is now willing and interested in
representing the part-time faculty members.
Regarding private sector precedent, the District focused on NLRB cases addressing
accretion
of
employees into an existing unit and argued that the determining factor is whether
the employees in the unit and those to be added share a community
of
interests.
COCFA'S OPPOSITION TO EXCEPTIONS
In its opposition to PFU' s exceptions, COCFA asserts that the ALI' s three-part
rationale for the rule he articulated was grounded in labor law and furthers public policy.
COCFA also asserts that the ALJ properly found no duty
of
strict neutrality arose in this case
because employee rights are balanced against employer rights under EERA. COCF A further
asserts that there was no violation of EERA section 3543.5(d) because "the proposed decision
carefully considered when the duty
of
employer neutrality is triggered under PERB and NLRA
precedent and determined that it was not unlawful for COCF A to agree to modify the
bargaining unit because no representation petition had yet been filed by PFU." Finally,
17

COCFA's opposition asserts that the ALJ properly construed Sacramento City and Long Beach
(No. 1278).
COCFA further asserts that, because the ALJ's decision relied on COCFA's "question
of
representation" argument, the proposed decision did not address other defenses COCF A
raised through closing arguments. 	COCF A incorporates those arguments by reference in it its
exceptions and has submitted them to the Board as an attachment to the exceptions.
In the incorporated closing argument, COCFA argues that finding the unit modification
agreement to be unlawful would amount to "rule making" by PERB without compliance with
procedural requirements
of
the Administrative Procedures Act. COCFA states, "Through the
issuance
of
the complaints at issue in this case, and to make findings
of
a violation thereon,
PERB is clearly rewriting the express language
of
PERB Regulation 32781 (providing for
agreements to modify units) so as to limit its applicability or eviscerate it entirely."
COCFA also argues that PERB is estopped from finding either the District or
COCF
A
committed unfair practices because they proceeded based on statements and alleged
predictions they received from an agent
of
the Board. COCFA contends:
The record shows that both COCF A and the College pursued the
agreement to modify the bargaining unit only after extensive
consultation with a PERB Labor Relations Specialist. Even
though the Specialist mentioned to the College's Vice-President
that AFT might challenge the agreement, it was her advice that
such a charge would not be sustained.
COCFA urges that the parties could not have reasonably anticipated that the Board
might find the actions the parties chose based on conversations with a Board agent to
be
unlawful. Thus, claims COCFA, the Board is estopped from finding a violation on review of
the ALJ's proposed decision.
18

COCFA further submits that PERB lacks statutory authority to approve a bargaining
unit composed
of
less than all
of
the classroom teachers employed
by
the District. 	(Citing
EERA sec. 3545(b)(l), discussed supra.) COCFA distinguishes Long Beach (No. 765)
on
grounds that, there, the full time faculty representative was unwilling to represent part-time
faculty. 	Here, COCFA disputes the ALJ' s factual determinations and contends that California
Teachers Association (CTA) and COCFA representatives made efforts to assist the adjunct
faculty in obtaining representation.
EERA section 3545(b )(1) expressly prohibits PERB from approving a bargaining unit
with less than the full compliment
of
classroom teachers, argues COCFA. 	Alternatively,
COCFA argues that, even
if
the standards justifying split units in Long Beach (No. 765) are
valid and are applied, this case does not merit the same result because COCF A is willing to
represent the part-time faculty. 	COCF A also posits that this case can arguably be
viewed as a
longstanding violation
of
COCF
A's
duty
of
fair representation.
Finally, COCF A argues that the charging parties have not shown that a part-time
faculty unit is appropriate.
DISCUSSION
Contrary to the analysis
of
the ALJ, the Board finds that this case can be resolved in a
straightforward manner under clear statutory language and settled PERB precedent.
Two statutory provisions are implicated in this case:
EERA section 3543 provides, in relevant part:
(a) 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. 	[Emphasis added.]
19

EERA section 3543. 5 provides, in part:
It shall be unlawful for a public school employer to do any
of
the
following:
(
d)
	Dominate or interfere with the formation or administration
of
any employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another. [Emphasis added.]
To show a violation
of
EERA section 3543.5(d), the charging party must allege facts
which demonstrate that the employer's conduct tends to interfere with the internal activities
of
an employee organization or tends to influence the choice by employees between employee
organizations. (Santa Monica; Redwoods Community College District (1987) PERB Decision
No. 650 (Redwoods).) Proof that an employer intended to unlawfully dominate, assist
or
influence employees' free choice is not required. Nor is it necessary to prove that employees
actually changed membership as a result
of
the employer's act. (Santa Monica; Redwoods.)
The threshold test is "whether the employer's conduct tends to influence [free] choice
or
provide stimulus in one direction or the other." (Santa Monica, p. 22.) The test
of
whether an
employer has violated EERA section 3543.5(d) is based on the totality
of
the circumstances.
(Redwoods.)
The crux
of
the District's argument and the ALJ's analysis is that the unit modification
agreement in this case was authorized by the prefatory language in PERB Regulation 32781
stating, "Absent agreement
of
the parties to modify a unit," a petition to the Board is required.
The inference is that, in the presence
of
such an agreement, no petition to the Board is
required. On the facts
of
this case, such a result violates basic provisions
of
EERA itself,
which prevail over interpretations of regulations enacted under the Board's jurisdiction
pursuant to that statute.
20

The ALJ noted that "there is nothing in PERB's regulation qualifying the right to agree
to a unit modification by reference to section 3543.S(d) or similar language." Based on that
observation, the ALJ reasoned that "it is logical to infer that through [PERB Regulation
32781], PERB has expressed its intent that the issue
of
majority support in unit modifications
achieved through agreement is one ceded to the discretion
of
the employer."
The ALJ's analysis is erroneous because PERB's regulations are enacted pursuant to
and in conformity with authority granted by the Legislature through the statutes creating
PERB'sjurisdiction, in this case EERA. EERA section 3541.3(g) provides, in relevant part,
The Board shall have all the following powers and duties:
(g) To adopt pursuant to Chapter 3.5 (commencing with Section
11340)
of
Part 1
of
Division 3
of
Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies
of
this chapter. [Emphasis added.]
By operation
of
the very language empowering PERB to make rules, the regulations
must be enacted and construed in conformity with the provisions, purposes and policies
of
EERA. 	Thus, it is not necessary that PERB Regulation 32781 refer to EERA section 3543.S(d)
in order for section 3543.S(d) to circumscribe the regulation. More generally, administrative
regulations must be enacted in harmony with the statutes that create and empower the agency
issuing the regulations.9
9 For example, the Administrative Procedures Act (AP A) mandates that proposed
regulations first be reviewed by the Office
of
Administrative Law for, inter alia,
"consistency" with existing law. (Gov. Code sec. 11349.1) Government Code section
11349(d) provides: "'Consistency" means being in harmony with, and not in conflict with or
contradictory to, existing statutes, court decisions, or other provisions of law." Regulations
later alleged not to meet that requirement (or other requirements imposed by the AP A) are
subject to further review by the Office of Administrative Law. (See Gov. Code sec. 11349.7.)
21

The Supreme Court has advised,
Administrative regulations promulgated under the aegis
of
a
general statutory schedule are only valid insofar as they are
authorized by and consistent with the controlling statutes.
Administrative statutes [regulations] that alter or amend the
statute or enlarge or impair its scope are void ...
(Cooper
v.
Swoap (1974)
11
Cal.3d 856 [115 Cal.Rptr 1].)
BERA section 3543.5(d) and section 3543 state fundamental rights statutorily conferred
by the Legislature. PERB has no authority to expand or reduce those rights. PERB's
regulations must be enacted and applied in conformity with the legislative grant
of
jurisdiction
under which they were promulgated.
Section 3543 .5( d) prohibits an employer from providing "support" to an employee
organization, "or in any way encourag[ing] employees to join any organization in preference
to
another." In Hartnell, the Board applied that language and reversed dismissal
of
a charge
factually similar to the instant case, finding merit in the rival union's argument that a district
violates Section 3543.S(d) when it grants recognition for a wall-to-wall unit it previously
rejected, after discovering that a rival union is seeking to represent a subpart
of
that unit.
When Section 3543 (employees have right to representation by "organizations
of
their
own choosing") and 3543.S(d) (employer shall not "contribute ... support" to an employee
organization, "or in any way encourage employees to join any organization in preference to
another") are considered together, it becomes clear that the statutory goal enforced by the
Board in Hartnell was to ensure that employees are not forced into being represented
by
an
employer-favored union in the face of organizing efforts by another employee organization of
which the employer is on notice.
22

Contrary to the rationale
of
the ALJ and arguments
of
the District and COCFA, the
Board has not ruled that there must be a representation petition pending in order for the
mandate
of
Section 3543.5(d) to come into play. The Board in Santa Monica stated:
[Section 3543.5(d)] imposes on employers an unqualified
requirement
of
strict neutrality. There is no indication in the
statutory language that the Legislature meant to prohibit only
those acts which were intended to impact on the employees' free
choice. The simple threshold test
of
section 3543 .5( d) is whether
the employer's conduct tends to influence that choice or provide
stimulus in one direction or the other. [Emphasis in original and
supplied.]
In Long Beach (No. 1278), a school district allowed a rival organization to make a
presentation to employees regarding a campaign to sever a portion
of
an existing unit. 	There
was no petition pending, yet the Board found that the district's actions constituted
encouragement
of
membership in the rival organization, in violation
of
Section 3543.5(d).
The Board in Long Beach (No. 1278) summarized PERB's case law interpreting
Section 3543.5(d) as follows:
It is well established that a public school employer may not
encourage employees to join one employee organization over
another. (EERA sec. 3543.5(d).) The Board has found that
Section 3543.5(d) imposes on the employer an unqualified
requirement
of
strict neutrality with respect to employee choice
of
representation. (Sacramento City Unified School District
(1982) PERB Decision No. 214 at p. 3, citing Santa Monica.)
Where the natural consequence
of
an employer's conduct is to
encourage or discourage membership in a labor organization, the
Board presumes that the employer intended that result. [Citation
omitted.]
By allowing the rival organization to make its presentation at the end
of
an in-service
training session, the District "gave the impression that the District supported the [rival
organization's] presentation." The Board in Long Beach (No. 1278) found that "this
is
23

precisely the kind
of
conduct that would lead a reasonable person to conclude that the District
favored [the rival over the incumbent.]
Here, the ALJ found and the District and COCFA argue that Long Beach (No. 1278) is
distinguishable because, in the words
of
the ALJ, "it is a case involving the provision
of
unlawful assistance.	
It
would be a rare case where the discriminatory provision
of
such
assistance (typically financial, or in-kind services) could be construed as furthering a
compelling neutral purpose
of
the Act."
The Board finds the distinction unpersuasive. Here, the District went beyond providing
assistance to COCF A.	
It
participated with COCFA in the formation
of
an agreement that it
claims required part-time faculty to accept COCF A representation at a time when all parties
were on notice that PFU was organizing the part-time faculty. 	The District used its governing
board session to entertain COCFA's motion, and used District personnel and time to discuss its
terms and to ratify it. The Board finds this case consistent with the analysis in Long Beach
(No. 1278). The District's conduct could not be viewed in a manner other than as indicating
the District favored COCFA over PFU. The natural consequence
of
the District's actions
would be interference with employee selection
of
a representative. Such conduct tends to
influence the choice by employees between employee organizations. (Santa Monica.)
This approach is consistent with private sector precedent. Under NLRB case law, an
employer that recognizes a union which enjoys only minority support commits an unfair
practice. (Ladies Garment Workers v. NLRB (1961) 366 U.S. 731 [48 LRRM 2251].) 	That
holding from Ladies Garmant Workers was reaffirmed in Bruckner, the case heavily relied
upon by the ALJ in the proposed decision in the instant case. (Bruckner at p. 957, fn. 13.)
24

Additionally, in the private sector, to recognize one of two competing unions while the
employees' choice between them is demonstrably in doubt is an unfair practice under the
NLRB's doctrine of strict neutrality. 	(NLRB v. Signal Oil & Gas Co., (1962) 303 F.2d 785
[50 LRRM 2505].) A significant application of this neutrality requirement is contained in
Midwest Piping and Supply, Inc. (1945) 63 NLRB 1060, and more fully discussed in Playskool
v. NLRB (1973) 477 F.2d 66 [83 LRRM 2544] (Playskool).
In Playskool, the employer voluntarily recognized the Retail and Department Store
Union (Retail Union) when another union, the United Furniture Workers (United) was also
seeking representation of the same unit of employees. Although United had lost at least one
representation election and the Retail Union had obtained authorization cards from at least 300
of the 500 company employees, the Board found that recognition of the Retail Union by the
employer amounted to a breach in its duty of neutrality. In summarizing the Board's neutraiity
doctrine, the Court of Appeal stated:
The [NLRB] has held that this doctrine precludes recognition of
any union upon the basis of a card showing when another union
has raised a "question concerning representation." The Board has
not precisely defined the minimum amount of support a union
must show to raise such a question, but has held that an election
between two competing unions must be held if the claim of the
rival union is "not clearly unsupportable and lacking in
substance." Nor is it necessary for the rival union to present any
claim to the employer that it currently has majority support, for
the employer's knowledge of organizing activity is apparently
sufficient to raise the question. (Id. at 69-70.)
Although the Court ultimately found that the Retail Union had demonstrated a majority
showing and thus refused to enforce the NLRB's order, the NLRB's standard for determining
when a question concerning representation exists survives the Court's refusal to enforce.
25

The Board finds that the NLRB's cases on "accretion"
of
unrepresented employees into
an existing unit are in accord with the ruling herein. (See, e.g., Safeway Stores, Inc. (1981)
256 NLRB 918 [107 LRRM 1338] (voluntary extension
of
exclusive representative status to
unrepresented employees requires evidence that unrepresented employees support such
representation). The Board further notes that the cases regarding decertification efforts, such
as RCA and Pittsburg, cited by the ALJ are distinguishable. In those cases, the employer owed
an ongoing duty to bargain with the incumbent exclusive representative
of
the existing unit and
could lawfully refuse to negotiate with a rival union. Here, the part-time faculty have
no
exclusive representative. This case did not involve, as did RCA and Pittsburg, an effort to
force an employer to bargain with a rival organization regarding employees represented
by
a
recognized empioyee organization enjoying a presumption
of
majority support.
In fact, based on the record evidence, there can be no presumption
of
majority support
for COCF A in the combined unit it sought to represent, much less among the part-time faculty.
The District negotiated an agreement with COCFA to more than triple the size
of
COCF
A's
bargaining unit by adding 376 part-time faculty to the existing unit
of
159 full-time faculty.
While nearly 20 percent
of
the part-time faculty signed authorization cards in favor
of
PFU
representation, COCF A failed to provide any evidence that even one part-time faculty
employee signed an authorization card in its favor. 	The District was on notice
of
PFU'
s efforts
to organize the part-time faculty when it chose to enter into the unit modification with
COCF A. In so doing, the District demonstrated support for COCFA, conduct that unlawfully
tends to influence employee selection, in violation
of
EERA section 3543.5( d). 10
10
Resolution of this case does not require a determination regarding what would
constitute an appropriate unit. Thus, arguments regarding whether PFU proposed an
appropriate unit need not be resolved here.
26

No exceptions having been filed regarding allegations based on BERA section 3543.5
(a) or (b), the Board does not disturb their dismissal by the ALJ.
COCFA's Other Arguments
Contrary to COCFA's assertion, the Board is not engaging in "rule making" when it
finds that the unit modification agreement formed between the District and COCF A in this case
violates BERA section 3543.5(d). To the contrary, the Board is reasonably applying an
existing regulation to the specific facts
of
this case and the parties thereto, in light
of
the
statutory authority under which the regulation was enacted. That is an adjudicatory, not a
rulemaking function. 	Neither PERB nor any other agency or court has the authority to
interpret PERB regulations in a manner that conflicts with the statutes under which they were
enacted. (See Cooper
v.,_
Swoap; also, Gov. Code secs. 11349(d), 11349.1, 11349.7, discussed
supra.) To construe Regulation 32781 as endorsing the District's violation
of
BERA section
3543.S(d) would amount to legislative activity, which is vested with the Legislature.
Nor is PERB "estopped" from finding that the District violated BERA section
3543.5(d) when it entered into the unit modification agreement with COCFA at a time when all
parties were on notice that PFU was attempting to organize the part-time faculty. 	The
assertions regarding alleged statements by PERB's agent regarding the District's duty to
bargain and AFT's potential prospects on an unfair practice challenge to a unit modification
agreement between the District and PFU do not divest this Board
of
its duty and authority to
remedy unfair practices. (See American Can Company v. National Labor Relations Board (2 nd
Cir. 1976) 535 F.2d 180, 187 [92 LRRM 2251] (conduct by official in regional office does not
justify perpetuation of unfair practice and does not bind Board).) PERB does not issue
27

"advisory opinions" or generalized declarations oflaw. (See, e.g., Thorpe
v.
Long Beach
Community College District (2002) PERB Dec. No. 1475, and cases cited therein; Lemoore
Union High School District (1978) PERB Order No. Ad-47.) PERB's binding precedent is
articulated only through adjudication
of
issues presented through appeal
of
Board agent
dismissals
of
charges or exceptions from decisions
of
an ALJ. 	The Board's rulings bind its
agents; its agents' alleged speculations do not bind the Board.
11
ORDER
Based on the foregoing findings
of
fact, conclusions oflaw, and the entire record
in
this
case, it is found that the Santa Clarita Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(d)
by
contributing support to an employee organization and encouraging employees to join one
organization in preference to another when it entered into a unit modification agreement with
the College
of
the Canyons Faculty Association, CTA/NEA (COCFA), to expand the full-time
faculty unit represented by COCFA to include unrepresented part-time faculty at a time when
the District was on notice that part-time faculty were being organized and were seeking
representation by Part-Time Faculty United, AFT.
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESISTFROM:
1.	
Contributing support to an employee organization;
11
l\1oreover, the Board agent was not serving as the attorney for either the District or
COCFA when the conversations allegedly took place. Thus, contrary to COCFA's assertion, it
would not be reasonable for either party to rely exclusively on the Board agent's initial
assessment of a case as the only basis for deciding how to proceed.
28

2.	
Encouraging employees to join one organization in preference to
another; 
3.	
Entering into or enforcing a unit modification agreement with the
College
of
the Canyons Faculty Association, CTA/NEA (COCFA), to expand the full-time
faculty unit represented by COCF A to include unrepresented part-time faculty when the
District is on notice that part-time faculty are being organized and are seeking representation
by another employee organization;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE EERA:
1.	
Within ten (10) workdays following the date this decision is no longer subject to
appeal, post at all locations where notices are customarily posted, copies
of
the notice attached
hereto as an Appendix.
2.	
Written notification
of
the actions taken to comply with this Order shall
be
made
to the San Francisco Regional Director
of
the Public Employment Relations Board (PERB) in
accordance with the director's instructions. Continue to report in writing to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Part-Time Faculty United, AFT.
It is further Ordered that the proposed decision
of
the administrative law judge in Case
No. LA-CE-4357-E is hereby REVERSED, consistent with the discussion herein.
Members Baker and Whitehead joined in this Decision.
29

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4357-E, Part Time Faculty United,
AFT v. Santa Clarita Community College District, in which all parties had the right to
participate, it has been found that the Santa Clarita Community College District (District)
violated the Educational Employment Relations Act (EERA), Government Code section
3543.5(d) by contributing support to an employee organization and encouraging employees to
join one organization in preference to another when it entered into a unit modification
agreement with the College of the Canyons Faculty Association, CTA/NEA (COCFA), to
expand the full-time faculty unit represented by COCFA to include unrepresented part-time
faculty at a time when the District was on notice that part-time faculty were being organized
and were seeking representation by Part-Time Faculty United, AFT.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. CEASE AND DESIST FROM:
1. Contributing support to an employee organization;
2. Encouraging employees to join one organization in preference to
another;
3. Entering into or enforcing a unit modification agreement with the
College of the Canyons Faculty Association, CTA/NEA (COCFA), to expand the full-time
faculty unit represented by COCFA to include unrepresented part-time faculty when the
District is on notice that part-time faculty are being organized and are seeking representation
by another employee organization.
Dated: SANTA CLARITA COMMUNITY COLLEGE
DISTRICT (COLLEGE OF THE CANYONS)
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.