Grossmont-Cuyamaca Community College District (PERB A380E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GROSSMONT-CUYAMACA COMMUNITY
COLLEGE DISTRICT,
Employer,
and
GROSSMONT-CUY AMA CA COMMUNITY
COLLEGE DISTRICT FA CUL TY
ASSOCIATION,
Petitioner,
and
UNITED FACULTY OF GROSSMONT-
CUY AMA CA COMMUNITY COLLEGE
DISTRICT,
Exclusive Representative.
Case No. LA-DP-370-E
Administrative Appeal
PERB Order No. Ad-380
June 22, 2009
Appearances: 	Marianne Reynolds, CCA Staff Consultant, for Grossmont-Cuyamaca
Community College District Faculty Association; Law Offices of Robert J. Bezemek by
David Conway, Counsel, for American Federation of Teachers Guild, Local 1931.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Grossmont-Cuyamaca Community College District Faculty
Association (Association) of an administrative determination (attached) in which a Board agent
dismissed a decertification petition for insufficient proof of support. The appeal alleges that
the employee list provided by the Grossmont-Cuyamaca Community College District (District)

was not an accurate representation of the employees in the unit and, therefore, the Board agent
erred in concluding that the Association's proof of support was insufficient. 1
We have reviewed the entire matter in this case and find the administrative
determination was well-reasoned, adequately supported by the record and in accordance with
applicable law. Accordingly, we hereby adopt the administrative determination as a decision
of the Board itself, subject to the following brief discussion addressing the Association's
allegations on appeal.
REQUEST FOR WITHDRAWAL
On June 19, 2009, the Association sent a letter by facsimile requesting the withdrawal
of the instant appeal. The Board has long held that it possesses the discretion to grant or deny
such requests. (ABC Unified School District (1991) PERB Decision No. 831 b.) When an
appeal involves a matter of continuing public interest, and when a precedential ruling on the
matter will be instructive to all parties similarly situated, the Board has held that, when
considering a request to withdraw, it should exercise discretion in the interest of justice.
(Oakland Unified School District (1983) PERB Order No. Ad-171.) Because of the significant
legal issues presented by this appeal, and because the representation rights of over 1400
employees are at issue, we find the best interests of justice are not served by the withdrawal of
the instant appeal. Accordingly, we decline to grant the Association's request for withdrawal.
1 On April 23, 2009, PERB determined that a decertification petition (Case
No. LA-DP-369-E) filed by the American Federation of Teachers Guild, Local 1931 for the
same bargaining unit was timely submitted and accompanied by sufficient proof of support.
Consequently, an election was scheduled. In its appeal, the Association requested that this
election in Case No. LA-DP-369-E be stayed, pending the Board's decision on the merits of its
appeal. The Board denied the request, but ordered the ballots cast in that election to be
impounded until the Board issued its decision on the merits in the instant case. (Grossmont-
Cuyamaca Community College District (2009) PERB Order No. Ad-378.)
2

FACTS AND DISCUSSION
On April 14, 2009, the District provided PERB with a list
of
unit members employed as
of
February 28, 2009. The Board agent referred to this list as "List #1". Later, in response to a
request by the Association, the District provided PERB with a second list
of
unit members
employed in the Fall semester. This second list was consolidated with the first list to create a
comprehensive list
of
individuals who were employed during the Fall semester and/or on
February 28, 2009. The Board agent referred to this consolidated list as "List #2". The Board
agent concluded that the Association failed to provide adequate proof
of
support in either
List
#1
or List #2. Consequently, the Board agent dismissed the matter for insufficient proof
of
support.
In its appeal, the Association argues that the Fall semester list was based, not on actual
payroll records, but on the list
of
individuals who received hire letters for the Fall semester.
According to the Association, not all individuals who receive hire letters become District
employees. 	Therefore,
if
actual payroll records were used by the District, the number
of
individuals in the unit that worked during the Fall semester would be lower and, consequently,
the Association's proof
of
support might be sufficient to support its participation in the
decertification election. The Association also claims that List # 1 is inaccurate.
To challenge the dismissal
of
a decertification petition for lack
of
support, the charging
party must allege facts sufficient to demonstrate the adequacy/inadequacy of the proof
of
support. (Coast Community College District (1986) PERB Decision No. Ad-159 (Coast).) 	In
Coast, an incumbent union appealed a decertification petition filed by a rival union.
According to the incumbent union, the actual unit size was much larger than the unit size
considered by the Board agent and, therefore, the rival unit lacked adequate proof of support
3

for its petition. The Board, however, ruled that the incumbent union's bald assertion that the
unit size was larger than the unit size considered by the Board agent was insufficient to sustain
its appeal.
Like the incumbent union in Coast, the Association's appeal consists
of
bare assertions
that the Fall semester employee list provided by the District potentially contains too many
names and that List
#1
is inaccurate. The appeal, however, fails to provide any specific
evidence regarding employees improperly included or excluded on the list. Moreover, the
appeal fails to identify how the Association would have met its proof
of
support burden even
if
the size
of
the unit was "appropriately" determined. Under these circumstances, the
Association's grounds for appeal are, at best, speculative and insufficient to support the
reversal
of
the administrative determination.
ORDER
The appeal
of
the administrative determination in Case No. LA-DP-370-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND. In addition, the ballot impound ordered
by the Board in Grossmont-Cuyamaca Community College District (2009) PERB Order
No. Ad-378 is hereby lifted.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
4

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA. 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
April
21,
2009
Marianne
Reynolds, CCA Staff Consultant
California Teachers Association
281 N. Rampart Street, Suite A
Orange,
CA
92868
Michael
P.
Baranic, Attorney.
Gattey & Baranic
2445
Fifth A venue, Suite 350
San
Diego,
CA
92101-1665
Timothy
K. Garfield, Attorney
Worley, Schwartz, Garfield & Prairie,
LLP
401 "B" Street, Suite 2400
San
Diego,
CA
92101-4200
Re:
	Case
No. LA-DP-370-E
Grossmont-Cuyamaca Community College District
Dear
Interested Parties:
ARNOLD SCHWARZENEGGER, Governor
Review
of
all proof
of
support submitted by the petitioner with its decertification petition
inthe above-referenced case has resulted in the administrative determination that it is
insufficient
to meet the requirements
of
PERB Regulation 32770(b)(2). 1
The petition is therefore
dismissed.
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. (Cal. Code Regs., tit. 8, sec. 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
1 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies may be purchased from PERB 's Publications Coordinator, 1031 18thStreet, Sacramento, CA 95811-4124, and the text is available at www.perb.ca.gov.

LA-DP-370-E
April 23, 2009
Page 2
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, sec. 32135(a) and 32130; Gov. Code sec. 11020(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
Regulation 32135(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, sec.
32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 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,
sec. 32360(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, sec. 32370).
If a timely appeal is filed, any other party may file 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 ofthe appeal (Cal. Code Regs., tit.
8,
sec. 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to
theproceeding and on the [***] 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,
sec. 32140 for the required contents). The document will be considered properly "served"when personally delivered or deposited in the mail or deposited with a delivery service
andproperly addressed. A document may also be concurrently served via facsilllile transmission
on all parties to the proceeding.- (Cal. Cocle Regs., tit. 8, secs. 32090 and 32135(c).)

LA-DP-370-E
April 23, 2009
Page 3
Extension of Time
A request for an extension of time in which
to
file an appeal
	Board
	or
	itself must
	opposition to
be
	an
	in
	appeal
	writing
	with
	and
	the
	filed with the Board at
request
	the
for an
previously
extension
	noted
must
	address.
be	
A	
filed at least three
time
	calendar
required
	days before
for
	the
	filing the
	expiration
document.
	of
the
	The request must
the
	indicate
	position
	good
	of each
	cause
	other
	for and,
	party
	if
	regarding
	known,
the extension,
service
	and shall
of
	be
	the request upon
	accompanied by	
each
	proof
	party 	of
	(Cal. Code Regs., tit. 8, sec. 32132) .
Sincerely,
J3n.ifCu
:Regional
Attorney
:ec
cc:	
Jim Mahler
.,