Communications Workers of America, AFL-CIO (PERB A383E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA ANA UNIFIED SCHOOL DISTRICT,
Employer,
and
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO,
Petitioner.
Case No. LA-RR-1158-E
Administrative Appeal
PERB Order No. Ad-383
February 23, 2010
Appearances: Law Offices
of
Eric Bathen by Eric Bathen, Attorney, for Santa Ana Unified
School District; Judith
G.
Belsito, District Counsel, for Communications Workers
of
America,
AFL-CIO.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
NEUW ALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Santa Ana Unified School District (District)
of
an
administrative determination (attached) by a Board regional attorney (RA). The
Communications \Vorkers
of
,A.~merica,
AFL-CIO (CWA) filed a request for recognition with
the District pursuant to PERB Regulation 33050, 1 seeking to represent a unit
of
substitute
teachers employed by the District. The RA granted the request for recognition.
The Board has reviewed the administrative determination and the entire record in this
case in light
of
the District's appeal,
C\
1/i\""'s response
and
tl1e
rele~.,1ant laYv.
2 Based on this
review, we find the administrative determination well-reasoned, adequately supported by the
1 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2 The Board denies the District's request for oral argument.

record and in accordance with applicable law. As such, we adopt the administrative
determination as the decision
of
the Board itself consistent with the discussion below.3
On appeal, the District argues that the RA' s determination should be overturned for the
following reasons: (1) there is no practical purpose for a stand-alone unit
of
substitute teachers
and it will interfere with the efficiency
of
the District's operations; (2) there is no potential
benefit to substitute teachers being a part
of
a bargaining unit especially in light
of
the severe
financial crisis facing the State
of
California; and (3) the unit
of
substitute teachers would be
transitory, such that the District and CWA would be unable to determine who actually belongs
at a given point in time, since there could be thousands
of
eligible substitute teachers in the
District.
As to the first argument, the District contends that,
if
CWA succeeds in obtaining
recognition as the exclusive negotiator for the substitute teachers, these employees will be
harmed by having dues deducted from their already-low paychecks and, given the current
economic climate, CWA will be unable to negotiate increased wages or benefits on their
behalf. Thus, the District contends, the employees are being misled by CWA recruiters, while
the District stands to lose valuable resources
of
administrative time, money, and efficiency
if
it
is required to bargain with CWA.
The Educational Employment Relations Act (EERA)4 guarantees all covered employees
the right to select an employee organization as their representative in an appropriate bargaining
3 The RA stated in the administrative determination that the District has not "attempted
to modify the certificated unit through PERB procedures to accrete the substitute teachers into
the certificated unit." We clarify that, while the District could not have filed a unit
modification petition in this case pursuant to PERB Regulation 32781, the District could have
sought to include the substitute teachers in the certificated unit through agreement with the
Santa Ana Educators Association (SAEA).
4 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2

unit. (EERA § 3540.) It is well established that substitute teachers are employees entitled to
the protections under EERA. (Palo Alto Unified School District, et al. (1979) PERB Decision
No. 84.) While substitute teachers may be included within a broader unit of teachers, a unit
composed solely of substitute teachers may also be appropriate. (Ibid.) Moreover, PERB has
made it clear that, even where the broader unit may well be appropriate had the matter been
brought before PERB, it would not effectuate the purposes of the statute to force expansion of
a unit upon an unwilling representative. (Santa Clara Unified School District (2007) PERB
Decision No. 1911; Long Beach Community College District (1989) PERB Decision No. 765.)
PERB's role in this proceeding is not to evaluate the wisdom of the decision of a
majority of the employees in the proposed unit to select CWA as their bargaining
representative, or whether CWA will be able to negotiate favorable terms and conditions of
employment on their behalf. We are charged solely with determining whether sufficient proof
of support exists to certify CWA as the exclusive representative of an appropriate bargaining
unit and thereby confer an obligation to meet and negotiate in good faith. (EERA § 3544
et seq.; PERB Reg. 33485.) Contrary to the District's assertions, we find that a stand-alone
unit of substitutes in this case satisfies the requirements of EERA section 3 545 and ensures the
ability of such employees to exercise the rights guaranteed under EERA where, as here, the
alternative would leave them with no representation whatsoever.5 Furthermore, as noted by the
RA, the employer's operational efficiency concerns cannot outweigh employee representation
rights when employees have no other options for representation. (Sweetwater Union High
5 We reject the District's argument that CWA was required to establish what SAEA
would have done in the event the substitute teachers requested inclusion and representation by
SAEA in the regular teachers' bargaining unit. The record is clear that SAEA has never sought
to represent the substitute teachers and did not seek to intervene in this proceeding.
3

School District (1976) EERB6 Decision No. 4; Los Angeles Unified School District (1998)
PERB Decision No. 1267.)
As to the second argument, the District appears to contend that substitute teachers
should not be included in any bargaining unit because of the potential for increased costs to the
District arising out of having to negotiate with respect to these employees. As noted above,
substitutes are covered by EERA and entitled to all the rights afforded thereby. This argument
is, therefore, rejected.
Finally, the District cites no authority for the proposition that substitute employees are
not entitled to representation in collective bargaining merely because the nature of their
employment may be "transitory" or that the bargaining unit may encompass a largenumber of
members. As noted above, PERB has long recognized that substitute teachers fall within the
scope of EERA, and the District "would have an obligation to negotiate regardless of whether
substitutes were placed in a separate unit or folded into the existing unit." (Oakland Unified
School District (1983) PERB Decision No. 320.) Therefore, we reject the District's argument.
ORDER
The Santa Ana Unified School District is ORDERED to grant recognition to a unit of
all substitute teachers employed by the District.
Acting Chair Dowdin Calvillo and Member Wesley joined in this Decision.
6 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
4

STATE OF CALIFORNIA
PUBLIC El\1PLOYMENT RELATIONS BOARD
SANTA ANA UNIFIED SCHOOL DISTRICT,
Employer,
and
COMMUNICATIONS WORKERS OF
AMERICA,
Petitioner.
REPRESENTATION
CASE NO. LA-RR-1158-E
ADMINISTRATIVE
DETERMINATION
(November 26, 2008)
Appearances: 	Law Offices of Eric Bathen, by Eric Bathen and Marcia P. Brady, Attorneys, for
Santa Ana Unified School District; Communications Workers of America, AFL-CIO, by Judith
G. Belsito, District Counsel.
Before Sean McKee, Regional Attorney.
PROCEDURAL HISTORY
On April 21, 2008, the Communication Workers of America AFL-CIO (CWA) filed a
request for recognition petition (petition) with the Public Employment Relations Board
(PERB). CWA seeks recognition as the exclusive representative of the substitute teachers
employed by the Santa Ana Unified School District (District). CW A's petition was not
accompanied by proof of majority support of the employees in the claimed unit1 as required by
PERB Regulation 33050(b ).2 In addition, the proof of service form attached to the petition did
not list the name(s) and address(es) used for service as required by PERB Regulation 32140(a).
On April 23, 2008, PERB notified the parties that it received the petition. PERB also
informed the parties that CW A and/or "PERB records indicate that no employee organization
1 The petition declares that CWA is supported by 30 percent of the employees in the
claimed unit.
2 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
Coordinator, 1031 18th Street, Sacramento, CA 95811, and the text is available at
www.perb.ca.gov.

( 	(
is
currently recognized or certified as the exclusive representative
of
any
of
the employees in
the claimed unit." PERB directed the District to post a "Notice
of
EERA[3] Representation
Petition along with a copy of the representation petition
...
" and to confirm that no employee
organization currently represents substitute teachers employed by the District. The District
was also instructed to file with PERB "a list of the names
of
all persons employed in the
claimed unit who have worked at least 10% of the current academic year [im]mediately
preceding the date the [petition] was filed with the [District.]" (Emphasis omitted.)
On April 25, 2008, CWA amended the petition. The amended petition reduced the
number of employees in the claimed unit and declared that the petition was accompanied by
proof
of
majority support. The proof of service form attached to the amended petition
complied with PERB Regulation 32140.
On May 9, 2008, the District filed a notice
of
appearance form with PERB designating
"The Law Office of Eric Bathen" as its representative. Marcia Brady, an attorney from The
Law Office of Eric Bathen, confirmed that the District received the petition on April 24, 2008
and that the District posted a copy
of
the petition on April 29, 2008. Ms. Brady also confirmed
that "there is not currently an exclusive representative for the proposed substitute
teacher/faculty unit." Ms. Brady assured PERB that a list of the names of the employees in the
claimed unit was forthcoming.
In the weeks following, the parties identified the names of the employees in the claimed
unit. On June 5, 2008, PERB made an "initial determination" that the proof of support filed
by
CW A with the petition was insufficient to meet the requirements of PERB Regulation
3 EERA stands for the Educational Employment Relations Act. EERA is codified at
Government Code section 3540 et. seq.
2

33050(b
).
	Pursuant to PERE Regulation 33085, CWA was granted
10
calendar days to perfect
its proof of support.
Within 10 calendar days, CWA filed additional proof
of
support with PERE.
	On
June
20, 2008, PERB notified the parties that, after reviewing CWA's additional proof of support,
PERB made the administrative determination that the support
is
sufficient to meet the
requirements
of
PERE Regulation 33050(b). The District was advised that it had 15 calendar
days to file a "decision pursuant to Regulation 33190" and that since "CW
A has evidenced
majority support and no valid intervention has been filed, recognition must be granted unless
the [District] doubts the appropriateness
of
the unit." (Citation omitted.)
On July 14, 2008, PERE granted the District's request for an extension
of
time to file
its decision. 	On July 31, 2008, the District filed a decision refuting the appropriateness
of
the
claimed unit. 	Among other reasons, the District refused to voluntarily recognize CWA
because "the proposed classification of substitute teachers shares a community interest with the
teachers in the District and the teachers are already represented by Santa Ana Educators
Association [SAEA]."
In a letter dated September 17, 2008, C\VA
..
petitioned PERB for a Board investigation
pursuant to PERE Regulation 33230. Thereupon, the above-titled case was transferred to the
undersigned for further processing.
On September 30, 2008, this office scheduled a settlement conference between the
parties to enable the undersigned to gather information regarding the appropriateness
of
the
claimed unit, and to attempt settlement of the case. On October 2, 2008, CWA attorney Judith
Belsito contacted the undersigned via telephone and stated that CWA was not interested in
engaging in settlement negotiations with the District. Thus, the scheduled informal settlement
conference was canceled.
3

On October 14, 2008, CWA filed a declaration of CW A Staff Representative Janine
Munson. Ms. Munson's declaration provides in relevant part: "On November 29, 2007, I met
with the Vice President
of
SAEA, Dr. David Barton, at the offices of SAEA, in Santa Ana. At
this meeting I asked Dr. Barton if SAEA was interested in representing the part-time substitute
teachers. He specifically stated that SAEA was not interested in representing this unit."
On October 16, 2008, after reviewing the District's July
31
decision, this office ordered
the District to show cause why "CW A should not be recognized as the exclusive representative
of
the proposed unit
of
substitute teachers." The Order to Show Cause (OSC) directed the
District to support factual assertions with declarations signed by witnesses with personal
knowledge under the penalty of perjury. The District was ordered to file its response by no
later than November 3, 2008. On October 31, 2008, PERB granted the District's request for an
extension of time to file its response. On November 7, 2008, the District filed a response to
the OSC and on November 10, 2008, CWA filed a reply to the District's November 7 response.
ISSUE
Whether CW A should be certified by PERB
as
the exclusive representative of the
District's substitute teachers.
FINDINGS OF FACT
CW A is an "employee organization" within the meaning of Government Code section
3540.1 ( d). The District is a "public school employer" within the meaning of Government
Code section 3540. l(k).
On October 8, 1984, SAEA was certified by PERB as the exclusive representative of
permanent teachers (certificated unit) employed by the District. Among the positions
specifically excluded from the certificated unit were "Day Substitutes." There is no record that
4

( 	(
SAEA has ever attempted to modify the certificated unit through PERB procedures to accrete
substitute teachers into the certificated unit.
On April 29, 2008, the District posted a copy
of
CW
A's
petition seeking recognition as
the exclusive representative
of
the substitute teachers. The posting notified employees that
"any other employee organization desiring to represent any
of
the employees in the unit
described in [the petition] has the right within 15 workdays following the date of [the] notice,
to file with [the District] an intervention
....
" Neither SAEA nor any other employee
organization attempted to intervene to challenge the petition with evidence of employee support
of its own.4
POSITION OF THE PARTIES
The District
Among other PERB precedent, the District cites Sweetwater Union High School
District (1976) EERB5 Decision No. 4 and Los Angeles Unified School District (1998) PERB
Decision No. 1267 and argues that the petition should be dismissed by PERB because
substitute teachers share a community of interest with the certificated unit. For example,
substitute teachers and permanent teachers share many of the same duties, responsibilities and
qualifications. Many of the substitute teachers are retired permanent teachers or applicants for
permanent teaching assignments. Thus, due to community of interest factors, PERB case law
favoring bargaining units that include "all classroom teachers," and the Legislature's intent to
limit the number of public sector bargaining units, "the District contends that the Substitute
employees
...
should seek to align themselves with the already existing SAEA
....
"
4 As of the date of this Administrative Determination, no employee organization has
contacted PERB and attempted to intervene in this case.
5 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB.)
5

The District and SAEA are parties to a collective bargaining agreement. Thus,
according to the District, "It would be more efficient to seek an amendment of the existing
collective bargaining agreement to include a new classification of covered employees .... "
"Furthermore, SAEA is a chapter of the California Teachers Association (CTA) and as such,
has more experience and knowledge relating to the rights and privileges afforded to substitute
teachers under California law, including the California Education Code."
The District also doubts CW A's "level of sophistication with respect to legal aspects of
meeting and negotiating, contract enforcement, and legal defense in disciplinary matters." The
District notes that "The existing District Bargaining Units on the other hand, are the
prototypical 'modern' public sector unions in terms of their outlook, their emphasis on the
need for political access, and their reliance on education field professionals."
The District asserts that there is no reliable evidence that SAEA
seriously considered or reviewed the issues related to inclusion of
the substitute teachers. The CWA's Staff Representative's
hearsay laden recounting of Dave Barton's alleged comments
does not establish what SAEA's Board or membership's reaction
would have been had the teachers' bargaining unit been presented
with the issue of affording inclusion of the substitute teachers,
many of whom are former SAEA members or will be SAEA
members in the future.
The District also doubts "the legitimacy of the majority of signatures claimed to have been
collected by [CWAJ."
Furthermore, the District is concerned that the creation of an additional bargaining unit
will hinder the District's efficiency of operation and will be unduly burdensome. The District
alleges that it is experiencing declining enrollment, state budget cutbacks and major budget
shortfalls. The additional costs required to negotiate with a separate bargaining unit will place
an added strain on the District's finances. Moreover, the District maintains
6

if CW A succeeds in obtaining recognition ... low wage at-will
employees who are already discouraged about their lack of job
security and alleged inadequate compensation are going to be
faced with additional paycheck cuts because they will have CWA
withdrawing dues moneys out of their paychecks. CW A will fail
to negotiate increased wages or benefits concessions for the
substitute teachers because of the State and District budget crises
which is resulting in, at the minimum, freezes of all pay levels
without even cost of living adjustments for the foreseeable future,
and potentially actual reductions in salaries and benefits. The
employees who are being mislead by the CWA recruiters will be
sorely disappointed when they find they are going to get no new
concessions from the District and will instead have an additional
1.2-2.0 percent of their paychecks siphoned off to pay for the
"nothing" CWA is going to get for them.
CWA
Citing Santa Clara Unified School District (2007) PERB Decision No. 1911 (Santa
Clara) and Long Beach Community College District (1989) PERB Decision No. 765 (Long
Beach), CW A argues that the District cannot "force a group of previously unrepresented
teachers into a unit already represented by an organization not of the choosing of the
employees at issue, and not seeking to accrete them into the established unit .... "
CONCLUSIONS OF LAW
RP-hntt::ible Presumption
As stated in the October 16 OSC, there is a rebuttable presumption that "all classroom
teachers" be contained in a single unit. (Peralta Community College District (1978) PERB
Decision No. 77.) However, in numerous decisions, PERB has found appropriate a unit of
certificated employees that does not include "all classroom teachers." (See O::ikl::inrl TTnified
School District (1983) PERB Decision No. 320; Davis Joint Unified School District (1984)
PERB Decision No. 474; Modesto City Schools (1985) PERB Decision No. 567; Long Beach,
supra, PERB Decision No. 765; Pasadena Community College District (2001) PERB Decision
No. 1098; Santa Clara, supra, PERB Decision No. 1911.)
7

In Long Beach, supra, PERB Decision No. 765, the Board considered the issue
of
how
to resolve disputes over representation petitions filed by residual groups of unrepresented
employees who were excluded from existing units via voluntary recognitions or consent
election agreements, but would likely have been included in the unit had the issue been before
the Board at that time. (Part-time faculty were not represented in the faculty unit.) The Board
noted that a dilemma may arise when, sometime later, the excluded employees seek bargaining
rights through a petition for a separate unit. These types of petitions are filed because there is
no mechanism for being added to the existing unit if the exclusive representative of that unit
chooses not to file a unit modification petition. (Santa Clara, supra, PERB Decision
No. 1911.) There
is
no established mechanism for forcing upon an existing unit an additional
group of employees the unit does not want. (Ibid.)
In Long Beach, supra, PERB Decision No. 765, the Board found that it would not
effectuate the purposes of the statute to order such a forced expansion of
t..tie
unit, even
assuming it had the authority to order such action. The Board gave great weight to the fact that
denial of the petition for a separate unit would effectively preclude the part-time faculty from
exercising their statutory bargaining rights. More importantly, the Board found no authority,
express or implied, for the Board to force an employee organization to represent employees
against its will. (Ibid.)
At no point since 1984 has either the District or SAEA attempted to modify the
certificated unit through PERB procedures to accrete the substitute teachers into
t11e
certificated unit. Similarly, there is no evidence that SAEA has ever filed a petition with
PERB for a separate unit of substitute teachers. In addition, SAEA did not attempt to intervene
to challenge the CWA petition with evidence of employee support of its own, despite being
8

given notice and fifteen work days to do so.6 PERB does not have the authority to force
SAEA
to represent substitute teachers against its will. (Long Beach, supra, PERB Decision No. 765.)
Thus, like in Long Beach supra, PERB Decision No. 765 and Santa Clara, supra, PERB
Decision No. 1911, denial of the petition for a separate unit
of
substitute teachers will
effectively preclude the employees from exercising their statutory bargaining rights.
Therefore, based on the well-established series
of
PERB cases, the District's decision to
deny
recognition to CW A as the substitute teachers' exclusive representative-because substitute
teachers belong in the certificated unit represented by
SAEA-is
rejected.
Efficiency
of
Operation
PERB must consider the effect
of
a proposed unit on an employer's ability to operate
efficiently. (Gov. Code, § 3545(a); San Francisco Community College District (1994) PERB
Decision No. 1068.) PERB balances any impact on efficiency with the "employees' right to
effective representation in appropriate units." (San Diego Unified School District (1977)
EERB Decision No. 8.) In balancing the impact on the efficient operations of an employer
with the employees' right to effective representation in appropriate units, the Board has never
found the efficiency factor to outweigh representation rights. (See Sweetwater Union High
School District, supra, EERB Decision No. 4; Los Angeles Unified School District, supra,
PERB Decision No. 1267.)
In Oakland Unified School District, supra, PERB Decision No. 320, the Board rejected
an employer's argument that including substitutes in a general teacher unit
\:Vould
affect the
6 The District cites no authority for its argument that CWA must provide PERB with
evidence that SAEA "seriously considered or reviewed the issues related to inclusion
of the
substitute teachers" or that CWA must "estabiish what SAEA's Board or membership's
reaction would have been had the teachers' bargaining unit been presented with the issue of
affording inclusion of the substitute teachers
....
" Consequently, these requirements will not
be imposed on CW A.
9

efficiency
of
the employer's operation. The Board explained that employers "have an
obligation to negotiate regardless of whether substitutes were placed in a separate units [sic] or
folded into the existing unit."
In Long Beach, supra, PERB Decision No. 765, the Board rejected the employer's
argument that the creation of a separate substitute teacher unit would affect the efficiency
of
the employer's operation. The Board explained:
The District argues a separate unit
of
part-timers would damage
the efficiency
of
the District's operations by requiring additional
bargaining with yet another union and more time at the
bargaining table. However, regardless of where part-timers are
placed, if they exercise bargaining rights the District would have
to
negotiate part-time issues. Therefore, the issues of concern to
part-timers will no doubt prolong bargaining whether they are
included with full-timers or are placed in a separate unit.
As the Board noted in Antelope Valley Community College
District (1981) PERB Decision No. 168, and Pleasanton Joint
School District[, Amador Valley Joint Union High School
District (1981) PERB Decision No. 169] the potential loss of time
which must necessarily be spent in negotiations was a burden
considered by the Legislature but found not to outweigh the
benefits of
an overall scheme of collective bargaining.
Here, the District's attorney asserts that "The creation of an additional unit would
significantly impact the efficiency of the District's operations." Attached to the District's
response to PERB' s October 16 OSC is a "Verification" signed under the penalty of perjury by
the District's Executive Director of Human Resources Chad Hammitt. The "Verification"
signed by Mr. Hammitt provides in relevant part: 	"I am informed and believe and on that
ground allege that the matters stated in the foregoing document are true, and based on that
belief, I declare, under penalty of perjury
...
that the foregoing is true and correct."
The "Verification" provided by the District is not a declaration by a witness with
personal knowledge signed under penalty of perjury. Consequently, the District's factual
assertion does not comply with the requirements set forth in the October 16 OSC.

Nevertheless, the substitute teachers' right to representation outweighs the impact a separate
bargaining unit of substitute teachers will have on the District's operations.
Government Code section 3540 states that the declared purpose
of
EERA
is
to
promote the improvement
of
personnel management and
employer-employee relations within the public school systems in
the State of California by providing a uniform basis for
recognizing the right
of
public school employees to join
organizations
of
their own choice, to be represented by the
organizations in their professional and employment relationships
with public school employers, to select one employee
organization
as
the exclusive representative
of
the employees in
an appropriate unit, and to afford certificated employees a voice
in the formulation of educational policy.
Government Code sections 3543.2(a) and 3543.S(c) requires public school employers to
negotiate in good faith with exclusive representatives over wages, hours of employment and
terms and conditions of employment.
A majority of the employees in the claimed unit exercised their statutory rights under the
Government Code by signing support cards for CW A. The support cards clearly demonstrate
the employees' desire to be represented by CWA for the purpose of meeting and negotiating on
wages, hours and other terms and conditions of employment.
As previously stated, no other employee organization attempted to intervene to challenge
the petition \vith evidence of employee support
of
its own despite being given notice and fifteen
work days to do so. In addition, at no point since 1984 has either the District or SAEA attempted
to modify the certificated unit through PERB procedures to accrete substitute teachers into the
certificated unit. There is no mechanism to force SAEA to represent substitute teachers against
its will. (Santa Clara, supra, PERB Decision No. 1911.)
Thus, dismissal of the petition because a separate unit of substitute teachers will impact
the efficiency of the District's operations will deprive employees of their statutory right to be
represented by an employee organization of their choice during a period of time where,
11

(
according to the District, "low wage at-will employees who are already discouraged about their
lack
of
job
security and alleged inadequate compensation are going to be faced with additional
paycheck cuts
....
" This result is counter to the express purposes of the Government Code
and a well-established series of PERB cases. Moreover, like the employer in Long Beach, supra,
PERB Decision No. 765, whether substitute teachers are represented by CWA or another
employee organization, the District will have to negotiate part-time issues.7 Accordingly, the
District's argument that PERB should dismiss the petition because it will impact the efficiency of
the District's operations is rejected.
The Duty to Remain Neutral
Government Code section 3543.S(d) prohibits public school employers from
"encouraging employees to join any organization in preference to another." In Rocklin
Teachers Professional Association, CTA/NEA (Romero) (1995) PERB Decision No. 1112, the
Board held that Government Code section 3543.S(d) requires public school employers to
"maintain strict neutrality in the face of organizational activity."
While the District may dispute the appropriateness of the claimed unit, it cannot refuse
to recognize CWA because the District believes that another employee organization is better
suited to represent substitute teachers. Thus, the District's arguments that PERB should
dismiss the petition because another employee organization is better equipped to represent the
claimed unit are rejected.
7 The District's argument that "the creation of an exclusive unit to negotiate on behalf
of substitute teachers in the District serves no practical purpose" is also rejected. The District
fails to cite any authority where PERB dismissed a recognition petition on the grounds that the
formation of a unit would serve no practical purpose.
12

(
Proof of Support
While the District contests the "legitimacy of the majority of signatures claimed to have
been collected by [CWA,]" Government Code section 3544(b) and PERB Regulation 33075
grant PERB sole authority to determine the sufficiency of an employee organization's proof of
support. Moreover; Lhe District failed to present evidence to PERB in the form of declarations
supporting its contention that CWA's proof of support is not "legitimate" within 20 days after
the filing of the recognition petition as required by PERB Regulation 32700(g).
PROPOSED ORDER
Based on the record in this case and the discussion above, it is determined that CW A
has established that the claimed unit is appropriate. CWA is hereby certified as the exclusive
representative of substitute teachers employed by the District.
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
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; see also Government Code
section 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
13

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
of
the appeal (Cal. Code Regs., tit. 8, sec. 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to
the proceeding 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 when deposited in the mail or with a delivery service properly
addressed, or when sent by facsimile transmission in accordance with the requirements
of
California Code
of
Regulations, title
8,
sections 32090 and 32135(d).
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
14

for and, if known, the position
of
each other party regarding the extension, and shall
be
accompanied by proof
of
service
of
the request upon each party (Cal. Code Regs., tit. 8, sec.
32132).
15
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Sean McKee
Regional Attorney