County of Yolo (PERB 2316MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATIONARY ENGINEERS LOCAL 39,
INTERNATIONAL UNION OF OPERA TING
ENGINEERS, AFL-CIO,
Charging Party,
v.
COUNTY OF YOLO,
Respondent.
Case No. SA-CE-704-M
Request for Reconsideration
PERB Decision No. 2316-M
PERB Decision No. 2316a-M
June 28, 2013
Appearance: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Stationary
Engineers Local 39, International Union
of
Operating Engineers, AFL-CIO.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for "clarification" by the Stationary Engineers Local 39,
International Union
of
Operating Engineers, AFL-CIO (Local 39)
of
the Board's decision in
County
of
Yolo (2013) PERB Decision No. 2316-M. The PERB administrative law judge
(ALJ) had concluded in a proposed decision that the County
of
Yolo (County) did not violate
its local rules with respect to a representation petition (for unit modification, recognition and
decertification 1) filed by the Yolo County Probation Association (YCP A) on behalf
of
Probation Department peace officers who no longer wished to be in the General Unit
represented by Local 39. The ALJ therefore dismissed the complaint and underlying unfair
practice charge. Local 39 filed exceptions.
The request for decertification was ultimately abandoned.

The Board reversed the conclusion reached by the ALJ. The Board concluded that the
County had violated its local rules, and therefore the Meyers-Milias-Brown Act (MMBA),2 in
its handling
of
YCP
A's
representation petition. As the Board held, while the County did not
violate its local rules in modifying the General Unit consistent with the peace officers' right to
a separate unit under section 3508, subdivision (a), the County did violate the local rules in
adding the Probation Department peace officer classifications to an existing bargaining unit
of
investigators represented by the Yolo County Investigators Association (YCIA). YCIA had
not petitioned for the Probation Department peace officer classifications. The County,
therefore, was wrong to act as though it had received a petition from YCIA to that effect.
Given the County's misplacement
of
the Probation Department peace officer classifications
into the YCIA-represented bargaining unit, the Board deemed that the recognition component
of
YCPA's petition attached at the time that the General Unit was modified by the Board
of
Supervisors on November 9, 2010.
In agreeing with Local 39 that the County violated its local rules, the Board found
Local 39 to be the prevailing party. The request for "clarification" was filed, however, not by
the County, but by Local 39. Local 39 takes issue with the Board's remedial order, which did
not require that the Probation Department peace officer classifications be returned to the
General Unit. For purposes
of
this decision, the Board treats Local 39's request for
clarification as a request for reconsideration. (See Los Angeles County Office
of
Education
(Burton) (1999) PERB Decision No. 1360 [failure to label a pleading as a request for
reconsideration not fatal].) The County declined to file a response.
The Board has reviewed Local 39's submission and, based on this review, the Board
denies Local 39's request for reconsideration for the reasons discussed below.
2 The MMBA is codified at Government Code section 3500 et al. All further statutory
references are to the Government Code.
2

DISCUSSION
Requests for reconsideration
of
a final Board decision are governed by PERB
Regulation 32410, subdivision (a),3 which states in full:
Any party to a decision
of
the Board itself may, because
of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date
of
service
of
the
decision. An original and five copies
of
the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page
of
the
record relied on. Service and proof
of
service
of
the request
pursuant to Section 32140 are required. The grounds for
requesting reconsideration are limited to claims that: (1) the
decision
of
the Board itself contains prejudicial errors
of
fact, or
(2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the
exercise
of
reasonable diligence. A request for reconsideration
based upon the discovery
of
new evidence must be supported by a
declaration under the penalty
of
perjury which establishes that the
evidence: (1) was not previously available; (2) could not have
been discovered prior to the hearing with the exercise
of
reasonable diligence; (3) was submitted within a reasonable time
of
its discovery; (4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision
of
the
previously decided case.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly. (Regents
of
the University
of
California (2000)
PERB Decision No. 1354a-H.) A request for reconsideration "is not simply an opportunity to
ask the Board to 'try again."' (Chula Vista Elementary School District (2004) PERB Decision
No. 1557a.) PERB Regulation 32410, subdivision (a), allows a party to request
reconsideration
of
a Board decision only on two grounds: (1) the decision contains
"prejudicial errors
of
fact;" or (2) previously unavailable and undiscoverable newly discovered
evidence that is both relevant and submitted within a reasonable time of discovery would
3 PERB Regulations can be found at California Code of Regulations, title 8,
section 31001, et seq.
3

impact or alter the decision. These limited grounds preclude a party from using the
reconsideration process to reargue or re-litigate issues that have already been decided.
(Redwoods Community College District (1994) PERB Decision No. 1047a). Simply arguing
the same facts that were presented on appeal does not fulfill the requirements
of
PERB
Regulation 32410. (Oakland Unified School District (2004) PERB Decision No. 1645a.) A
disagreement over the legal analysis employed by the Board is not grounds for reconsideration
even
if
it amounts to a prejudicial error
of
law resulting from application
of
its own case law.
(California State Employees Association (Hurd, et al.) (2002) PERB Decision No. 1479a-S.)
The instant request neither identifies prejudicial errors
of
fact nor presents newly
discovered evidence. There are no other grounds for reconsideration. On that basis alone, the
Board denies the request.
As stated earlier, Local 39 takes exception to the Board's remedial order. Local
39's
submission asserts in pertinent part:
That order, rather than requiring a return to the status quo which
the PERB deemed to be inappropriate because a proper petition to
modify the General Unit had been filed, seems to permit the
continuance
of
the new status quo brought about by the County's
violation
of
its own rules. Further confusion is caused by reason
of
the fact that the County has also ordered that the employees
involved be made whole for any loss
of
wages or benefits by
having been merged into the YCPA represented unit. The peace
officers involved have suffered a loss in pay and/or benefits as a
result
of
the action.
It is submitted that even though the removal
of
the peace officers
from the General Unit was appropriate, it was untimely until
there was some place for them to go. That would be logically
consistent. Thus, a correct status quo order would be to return
the classifications to the General Unit until the peace officers in
question were given an opportunity to select a destination
pursuant to the Rules of the County of Yolo.
4

In summary, the Charging Party seeks an order restoring the
status quo by returning the classifications to the General Unit
pending the filing
of
an appropriate motion for the disposition
of
the classifications in question and further ordering that the
employees be made whole for any losses suffered by reason
of
the illegal action
of
the Board
of
Supervisors.
Pursuant to section 3509, subdivision (a), the powers and duties
of
PERB as described
in section 3541.3
of
the Educational Employment Relations Act (EERA)4 shall apply to unfair
practice proceedings under the MMBA. Section 3541.3 empowers PERB to "take any action
and make any determinations in respect
of
these charges or alleged violations as the board
deems necessary to effectuate the policies
of
this chapter."
In determining an appropriate remedy in a particular case, the Board is neither bound
by nor limited to the remedy requested by the charging party. Although Local 39
acknowledges peace officers' right to a separate unit, it nonetheless continues to press for
return
of
the peace officer classifications to the General Unit. Local 39 claims that the removal
of
the peace officers classifications from the General Unit "was untimely until there was some
place for them to go." YCPA's representation petition, however, was timely filed and fully
compliant with the County's local rules in all respects including the requisite proof
of
support
and content. In determining that the Board
of
Supervisor's action in merging the Probation
Department peace officers with the YCIA-represented investigators unit was unlawful for lack
of
an YCIA-initiated petition requesting such action, the Board did not leave the peace officers
with nowhere to go or in a confused new status quo. The YCP A petition was both a petition
for modification and recognition. Recognition
of
YCP A as the exclusive representative
of
the
Probation Department peace officers attached upon modification of the General Unit by the
Board of Supervisors at its meeting of November 9, 2010. (County
of
Yolo, supra, PERB
Decision No. 2316-M, p. 23, fn. 19.)
4 EERA is codified at section 3540 et seq.
5

In reaching this conclusion, the Board highlighted two essential points. First, peace
officers' right to a separate unit is absolute. It derives from statute and cannot be abrogated by
a public agency in the exercise of local authority. (MMBA, § 3508.) Second, the
reasonableness of the County's local rules is not in dispute. The County's local rules provide
that decisions on appeal to the Board of Supervisors are final and binding.
The County's employee relations officer denied the YCPA petition in violation of
MMBA section 3508. At the meeting of November 9, 2010, the Board of Supervisors
corrected that error, in part, by removing the peace officers from the General Unit. It also
compounded that error, in part, by merging them into the YCIA-represented unit of
investigators. Had the Board of Supervisors not compounded the error and instead simply
decided to grant YCP A's petition for modification and recognition on appeal from the
employee relations officer's denial, that decision would have been final and binding under the
County's local rules. By our decision, we place Local 39 in no better position than the position
in which it would have been had the Board of Supervisors acted in a manner consistent with its
statutory obligations under section 3508. That obligation was to guarantee the Probation
Department peace officers their absolute, statutorily-guaranteed, right to separate
representation.
In sum, we conclude that the Board's decision in County of Yolo, supra, PERB
Decision No. 2316-M balances the rights of peace officers with the obligation of public
agencies to administer representation proceedings under their local rules. Neither party
disputed that the YCPA petition complied in full with the County's local rules. Thus, the
County, through the actions taken by its Board of Supervisors on November 9, 2010, had no
option under MMBA section 3508 but to reject the recommendation of the employee relations
officer and grant the petition. Returning the peace officer classifications to the General Unit
6

under these circumstances would be to order a remedy that fails to effectuate the purposes or
policies
of
the MMBA as it concerns the rights
of
peace officers.
ORDER
Stationary Engineers Local 39, International Union
of
Operating Engineers, AFL-CIO's
request for reconsideration
of
the Board's decision in County
of
Yolo (2013)
PERB
Decision
No. 2316-M is hereby DENIED.
Members Huguenin and Banks joined in this Decision.
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