City of San Rafael (PERB 1698M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 949,

Charging Party, Case No. SF-CE-149-M

v. Oe PERB Decision No. 1698-M

CITY OF SAN RAFAEL, October 20, 2004

Respondent.

Appearances: Weinberg, Roger & Rosenfeld by William A. Sokol, Attorney, for Service
Employees International Union Local 949; Liebert, Cassidy & Whitmore by Cynthia O’Neill,
Attorney, for City of San Rafael.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
| or Board) on appeal by the Service Employees International Union Local 949 (SEIU) from a
Board agent’s dismissal (attached) of its unfair practice charge. The charge alleged that the
City of San Rafael (City) violated the Meyers-Milias-Brown Act (MMBA)! by enforcing an
unreasonable local rule.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters, SEIU’s appeal and the City’s response. The Board

finds the warning and dismissal letters to be free of prejudicial error and adopts them as the

decision of the Board itself, subject to the discussion below.

‘The MMBA is codified at Government Code section 3500, et seq.

DISCUSSION
The facts are simple and not in dispute. SEIU is the exclusive representative for the
City's miscellaneous bargaining unit. The City and SEIU are parties to a collective bargaining
agreement (CBA) effective from 2002 through June 30, 2006. During the second year of the
CBA, the City received a petition for modification from the San Rafael Confidential Unit. The
petition proposed to modify the miscellaneous bargaining unit by severing several employee
classifications. As the City's local rules do not contain a contract-bar provision2, the petition
was allowed to proceed.
SEIU argues that the City committed an unfair practice by enforcing a local rule in
violation of the MMBA. (PERB Reg. 32603(g)3.) Specifically, SEIU argues that the City's
local rule governing unit modifications violates the MMBA because it fails to contain a
contract-bar provision. In making this argument, SEIU fails to provide any legal authority or
analysis4, and specifically fails to address the import of Service Employees Internat. Union v.
City of Santa Barbara (1981) 125 Cal.App.3d 459 [178 Cal.Rptr. 89] (City of Santa Barbara).
In City of Santa Barbara, the court addressed the exact issue raised by SEIU here. In
that case, an incumbent union argued that since the MMBA was modeled after the NLRA5, the
2Simply stated, the contract bar-rule under the National Labor Relations Act (NLRA)
holds that an existing CBA not exceeding three years will bar a petition for redeterminationof
representation in most instances. (See NLRB v. Circle A & W Products Co. (9 th Cir. 1981)
647 F.2d 924, 926 [107 LRRM 2923, 2924].)
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
4PERB Regulation 32635(3) provides that every appeal shall "State the grounds for
each issue stated."
5The NLRA is codified at 29 U.S.C., sec. 141, et seq.
2

MMBA must be interpreted to include a contract-bar provision. In rejecting this argument, the
court stated:
We specifically note that the Legislature has not seen fit to apply
the doctrine uniformly to various areas of public employment--in
one area, the contract bar operates for two years, in another, three
years, and in yet a third no time limitation is specified. From this
differential treatment, we discern that the Legislature has tailored
the contract bar doctrine to fit the particular needs of each area of
labor relations. The time periods selected represent the result of
legislative balancing of the potentially conflicting purposes of the
Government Code(§ 3500), the employees' rights to free
association on the one hand and the need for a stable bargaining
atmosphere on the other.
Based on this reasoning, the court found that the Legislature did not intend to incorporate the
contract-bar doctrine into the MMBA.
Since the decision in City of Santa Barbara, jurisdiction for administering the MMBA
has been transferred to PERB. In doing so, the Legislature expressly granted the Board the
power and duty to adopt regulations and issue decisional authority necessary to effectuate the
purposes and policies of the MMBA. (MMBA sec. 3509(a); EERA sec. 3541.36.) The Board
has used these powers to harmonize the various statutes under our jurisdiction where
appropriate. (See, e.g., Redwoods Community College Dist. v. Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617 [205 Cal.Rptr. 523]; but cf. Regents of University of
California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937
[214 Cal.Rptr. 698].) However, the Board's authority to adopt regulations and issue decisional
authority in the face of silence in a statute must be exercised with caution. The rule set forth in
City of Santa Barbara has existed since 1982 and SEIU has not given any rationale for why the
Board should now deviate from that rule. Accordingly, the dismissal is affirmed.
6EERA is codified at Government Code section 3540, et seq.
3

ORDER
The unfair practice charge in Case No. SF-CE-149-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
4

STATE OF CALIFORNIA 	1 	c~ \oLD SCHWARZENEGGER, Governor
-~~==-========~==============="-
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
February 19, 2004
William A. Sokol, Attorney
Weinberg, Roger & Rosenfeld
180 Grand A venue, Suite 1400
Oakland, CA 94612
Re: 	SEIU Local 949 v. City of San Rafael ·
Unfair Practice Charge No. SF-CE-149-M
DISMISSAL LET'f.ER
Dear Mr. Sokol:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 5, 2003. SEIU Local 949 alleges that the City of San
Rafael violated the Meyers-Milias-Brown Act (MMBA)1 by violating its local rules in
allowing modification of the Miscellaneous bargaining unit.
I indicated to you in my attached letter dated February 11, 2004, that the above-referenced
charge did not state a prim.a facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. 	You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to February 18, 2004, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my February 11, 2004 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board it~elf within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-149-M
February 19, 2004
Page2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements· of Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regul.;ttions 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b). )
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must. accompany each copy of a document served upon a
party or filed with the Bqard itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document 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 (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

SF-CE-149-M
February 19, 2004
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
c--
By _____________ _	/L-,<.2
Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Cynthia O'Neill

STATE OF CALIFORNIA 	( 	( 	;OLD SCHWARZENEGGER, Governor
====~=-=====-~=~============="
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
February 11, 2004
William A. Sokol, Attorney
Weinberg, Roger & Rosenfeld
180 Grand A venue, Suite 1400
Oakland, CA 94612
Re: 	SEIU Local 949 v. City of San Rafael
Unfair Practice Charge No. SF-CE-149-M
WARNING LETTER
Dear Mr. Sokol:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 5, 2003. SEIU Local 949 alieges that the City ofSan
Rafael violated the Meyers-Milias-Brown Act (MMBA)1 by violating its local rules in 	·
allowing modification of the Miscellaneous bargaining unit.
Investigation of the charge revealed the following. Local 949 is the exclusive representative
for the City's Miscellaneous bargaining unit. The City and Local 949 are parties to a collective
bargaining agreement that expires on June 30, 2006. With regard to unit modification, City
Counsel Resolution 4332 states in relevant part as follows:
Section 3(C): Modification of Established Unit
A Petition for Modification of an established unit may be filed by
an employee organization with the Municipal Employee
Relations Officer during the period for filing a Petition for
Decertification.
The Petition for Modification shall contain all of the information
set forth in Section 8.A. of the Resolution, along with a statement
of all relevant facts in support of the proposed modified unit.
* 	* 	* 	* 	*
The Municipal Employee Relations Officer shall hold a hearing
on the Petiticm for Modification, at which time all affected
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-149-M
February 11, 2004
Page2
( 	(
employee organizations shall be heard. Thereafter, the Municipal
Employee Relations Officer shall determine the appropriate unit
or units as between the existing unit and the proposed modified
unit. If the MERO determines that the proposed modified unit is
the appropriate unit, then he shall follow the procedures set forth
in Section 3.A. for determining formal recognition rights in such
unit.
Section 3(B) provides that a decertification petition, and thus a modification petition, must be
filed in October or November of each year following the first full year ofrecognition.2 Section
8(A) requires the following information to be presented:
(1) Name and address of employee organization.
(2) Names and titles of its officers.
(3) Names of employee organization representative who are
authorized to speak on behalf of its members.
(4) A statement that the employee organization has, as one of its
primary purposes, representing employees in their employment
relations with the City.
(5) A statement whether the employee organization is a chapter or
local of, or affiliated directly or indirectly in any manner with, a
regional or state, or national or international organization, and, if
so, the name and address of such regional, state or international
organization.
(6) Certified copies of the employee organization's constitution
and bylaws ...... .
City Counsel Resolution 4027 defines an "employee organization" as "any organization which
includes employees of the City and which has as one of its primary purposes representing
employees in their employment relationship with the City."
On October 23, 2003, the City received a Petition for Modification from the San Rafael
Confidential Unit (SRCU). The Petition proposed to modify the Miscellaneous bargaining unit ·
by severing out a Confidential unit consisting of the following classifications: Legal Assistant;
Legal Secretary; Human Resource Analyst; Human Resource Technician; Administrative Asst.
II; Administrative Asst. III; Administrative Asst. to the City Manager; Administrative Asst. to
the Police Chief; Management Analyst; and Payroll Technician/Finance. The Petition for
Modification included all of the information required in Section S(A) above, including a
certi.fied copy of the SRCU's bylaws as well as authorization cards signed by all of the
proposed bargaining unit members.
In early November 2003, Municipal Employee Relations Officer Daryl Chandler informed
both SRCU and Local 949 that he would hold a hearing on November f9, 2003, to determine
2 Local 949 has exclusively represented this unit more than over one year.

SF-CE-149-M
February 11, 2004
Page3
the appropriateness of the proposed confidential unit. On November 12, 2003, Local 949
requested the hearing be rescheduled. Mr. Chandler agreed to reschedule the hearing to
December 8, 2003. On November 20, 2003, Mr. Chandler sent both parties a letter confirming
the hearing date and providing the parties with a detailed description of the hearing process,
including the issues he would be resolving.
On December 8, 2003, Mr. Chandler conducted the hearing. Both Local 949 and the SRCU
presented evidence and questioned witnesses. At the conclusion of the hearing, Mr. Chandler
indicated that each side could submit written arguments to him in the next30 days, after which
time he would make his determination.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the MMBA, for the reasons provided below.
Charging Party makes two separate allegations regarding the City's conduct. First, Local 949
contends the City violated its local rules in accepting the Petition for Modification, arguing
SRCU is not an employee organization under the rules and the Petition did not conform with
Section 8.A. Secondly, Local 949 contends the City's local rule is unreasonable as it allows a
bargaining unit to be modified while a conμ-act between the parties is in effect. Eachof the
allegations will be addressed in turn.
I. Violation of Local Rules
PERB Regulation 32603(g) states that it shall be an unfair practice for a public agency to
violate the MMBA or any local rule adopted pursuant to Government Code section 3507.
Herein, Charging Party contends the City violated Resolution 4332 by allowing the SRCU to
file a Petition for Modification. However, facts provided by the City demonstrate the SRCU
filed the Petition for Modification during the appropriate time period and with the proper
documentation.3 Contrary to Local 949's contention, the SRCU provided certified copies of its
bylaws and stated that its primary purpose was the representation of employees. As the
Charging Party fails to provide any facts demonstrating the SRCU failed to provide the
required documentation, this allegation must be dismissed.
Local 949 also contends the SRCU is not an employee organization because it is n9t affiliated
with a local, state or national employee organization. However, neither the MMBA nor PERB
case law require an employee organization be affiliated with another organizationin order to
qualify as an employee organization. Indeed, the MMBA defines an employee organization in
the same manner as the City's Resolution. (See, Gov. Code sec. 3501(a).) As such, this
contention is also without merit.
3 A copy of the entire Petition for Modification was included with the City's response.
The Petition includes a certified copy of the SRCU's bylaws as well as authorization from each
of the bargaining unit members. Pursuant to PERB Regulation 32620(c), the City's answer
was served on the Charging Party.

SF-CE-149-M
February 11, 2004
Page4
(
II. Unreasonable Local Rule
The issues raised by this charge concern the "reasonableness" of local rules adopted by the
employer under the authority granted it by MMBA section 3507. As the courts have
previously held, 	·
it is now well settled that the Legislature intended that the
MMBA 'set forth reasonable, proper and necessary principles
which public agencies must follow in their rules and regulations
for administering their employer-employee relations.... ' and
that 'if the rules and regulations of a public agency do not meet
the standard established by the Legislature, the deficiencies of
those rules and regulations as to rights, duties and obligations of
the employer, the employee, and the employee organization, are
supplied by the appropriate provisions of the act.' 	[International
Brotherhood of Electrical Workers. Local 1245 v. City of Gridley
(1983) 34 Cal.App.3d 191; citations omitted.]
Thus, the inquiry does not concern whether, as to the disputed rules, PERB would find a
different rule more reasonable or the existing rule is unreasonable measured against an
• arbitrary standard. Instead, the question is whether a disputed rule is consistent with and
effectuates the purposes of the express provisions of the MMBA. 	(City of Gridley; Huntington
Beach Police Officers Association v. City of Huntington Beach (1976) 58 Cal.App.3d 492.)
Charging Party contends the local rule is unreasonable as it allows the City to modify the
bargaining unit while a contract is in effect. However, unlike BERA, HEERA and the Dills
Act, there is no "contract bar" under the MMBA that supercedes the right of public employees
to vote on a question of majority representation every 12 months. (Service Employees
International Union v. City of Santa Barbara (1981) 125 Cal.App.3d 459, 465-468.) In SEIU
v. City of Santa Barbara, the Court of Appeal refused to assume the Legislature intended the
contract bar doctrine to apply to public agencies. Moreover, the Court stated it had "no
authority to act in place of the Legislature by adopting the contract bar rule when none has
been authorized." (Id. at 467-468.) 	·
The purpose of a contract bar rule is to foster stability in labor relations between the employee
organization and the employer. Although the rule adopted by the City does not exactly mimic
the contract bar language in other PERB-enforced statutes, the rule does provide a limited
amount of time during which a petition can be filed. 	As the MMBA contains no contract bar
rule and as the City's rule is in accordance with the purpose of contract bar provisions, the
City's adoption of a rule allowing for modification of a bargaining unit during an existing
contract is not unreasonable. As such, this allegation must also be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a

SF-CE-149-M
February 11, 2004
Page5
(
standard PERB unfair practice charge form, clearly labeled First Amended Charge? contain all
the facts and allegations. you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before February 18, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR