County of Amador (PERB 2318M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,

Charging Party, Case No. SA-CE-809-M
v. PERB Decision No. 2318-M
COUNTY OF AMADOR, July 12, 2013
Respondent.

AMADOR COUNTY EMPLOYEES
ASSOCIATION,

Joined Party.

Appearances: Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for Service
Employees International Union, Local 1021; Gregory G. Gillott, County Counsel, for County
of Amador; Rose Law by Joseph W. Rose, Attorney, for Amador County Employees
Association.
Before Martinez, Chair; Huguenin and Winslow Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Amador (County) and joined party, the
Amador County Employees Association (ACEA) to the administrative law judge’s (ALJ)
proposed decision (attached) invalidating a section of the County’s local Employment
Relations Policy (ERP) concerning the timing for the filing of decertification petitions.

The complaint alleged that the County maintained an unlawful local rule in violation of

the Meyers-Milias-Brown Act (MMBA)' when it voted to move forward with the processing of

‘ The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

a decertification petition filed by the ACEA seeking to decertify the incumbent exclusive
representative, Service Employees International Union, Local 1021 (Local
1021
).
	The ALJ
determined that the local ERP, which permitted decertification petitions only within a twelve
month period after certification by the County
of
a recognized employee organization, was
contrary to section 3705(b)
of
the MMBA.2 Having so concluded, the ALJ ordered the County
to remove the illegal rule from its ERP and adhere to PERB regulations regarding
decertification/certification "until it amends its own timing provisions consistent with ERP
section 24, the MBA and PERB precedent." (Proposed Dec., at p. 17.) The relevant PERB
regulation contains a contract bar provision and a window period, to which the County and
ACEA object.
We have reviewed the record and the proposed decision in light
of
appeals by the
County and ACEA, 3 Local 1021
's
response thereto, and relevant law. Based on the review,
we affirm the proposed decision in accordance with the following discussion.
FACTUAL SUMMARY
The facts in this case are not in dispute. We therefore adopt the ALJ's findings
of
facts
as our own and briefly summarize them.
2 MMBA section 3507(b) provides: "Exclusive recognition
of
employee organizations
formally recognized as majority representatives pursuant to a vote
of
the employees may be
revoked by a majority vote
of
the employees only after a period
of
not less than 12 months
following the date of recognition." (Emphasis added.)
3 The ACEA requests oral argument pursuant to PERB Regulation 32315. Historically,
the Board has denied requests for oral argument when an adequate record has been prepared,
the parties had ample opportunity to present briefs and have availed themselves of that
opportunity, and the issues before the Board are sufficiently clear to make oral argument
unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision
No. 1453; City
of
Modesto (2008) PERB Decision No. 1994-M.) Based on our review of the
record, all of the above criteria are met in this case. Therefore, the Board denies the request.
2

Local 1021 has been the exclusive representative of employees in the County's General
Employee Representation Unit (General Unit) since at least 2007. The memorandum of
understanding (MOU) between Local 1021 and the County is for a three-year term, expiring on
September 30, 2013. On September 21, 2012, the ACEA presented the County with a
decertification petition for the General Unit represented by Local 1021, pursuant to section 18
of the ERP. The petition was accompanied by a showing of more than 30 percent support from
unit members. Section 18 provides, in pertinent part:
a. 	A certification by the Board of a recognized employee
organization of a representation unit shall continue in effect until
such recognized employee organization is decertified with respect
to said unit.
b. 	Following the determination of the Board of an
appropriate representation unit and certification of a recognized
employee organization of such unit ... no petition for
certification as an exclusively recognized employee organization
of such unit, or portion thereof, shall be filed with or received by
the Board except during the twelve months ensuing from the date
of such certification.
(Emphasis added.)
Also relevant here is Section 19( a) of the ERP which provides, in pertinent part:
a. 	Subject to the provisions of Section 18 of this Policy,
employees in a representation unit for which there is a recognized
employee organization may file with the Board a decertification
petition.
Recognizing that section 18(b) could, when read literally in conjunction with MMBA
section 3507, "bar every employee organization in the County from ever having their exclusive
status revoked," the ACEA asked the County to interpret section 18(b) to conform with the
MMBA, grant the ACEA's request for an election, and "reform the last sentence of section 18,
subdivision (b) ... to conform to the MMBA by applying it without the word 'except.'"
3

The county counsel recognized the same defect in section 18(b) and informed the
County Board
of
Supervisors that the certification bar would not likely survive a legal
challenge. He presented two options: (1) to deem the certification bar void and unenforceable,
apply the certification bar in section 3507(b)
of
the MMBA, and call for an election;
(2) determine that PERB' s regulations apply, including the contract bar contained in PERB
Regulation 61200.4
On October 9, 2012, the County voted to "move forward with the request by [ACEA] to
call for an election regarding the possible decertification
of
[Local 1021] ." Nothing in the
record indicates that the County followed either
of
the options presented to it by the county
counsel.
The ERP contains no rule incorporating any contract bar, i.e., a regulation that permits
a decertification petition to be filed only within a specified period prior to the expiration
of
a
MOU.
Local 1021 filed the instant charge on October 8, 2012 in anticipation
of
the County's
vote the following day.
PROPOSED DECISION
All parties in this case agree that ERP section 18(b) is in direct conflict with MMBA
section 3507(b ), and the ALJ ruled that it could not be enforced. Having done so, he then
reasoned that in the absence
of
section 18(b), there would be no time component in the ERP
directing parties when a decertification petition could be filed. Therefore, ERP section 19(a),
which concerns the filing
of
decertification petitions, is devoid
of
any direction as to when
decertification petitions can be filed because it refers back to the invalid section 18(b ).
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4

Relying on County
of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision
No. 2113-M (County
of
Siskiyou) and County
of
Orange (2010) PERB Decision No. 2138-M
(County
of
Orange), the ALJ concluded that PERB regulations apply only when an agency has
no rule that governs a particular representation issue. Because section 18(b) is invalid, PERB
Regulations 61010, 61200, and 613 80 "must be applied or substituted to provide the timing
requirement.
	If
the Board
of
Supervisors later desires to change its ERP to reflect its own
timing requirement, pursuant to MMBA section 3507
...
it is free to do so, barring any other
MMBA and case law restrictions." (Proposed Dec., at p. 14.)
The ALJ also rejected the County and ACEA's claim that the word "except" in
section 18(b) was a typographical error and that the October 9, 2012 vote to proceed with the
decertification election was a valid exercise
of
the County's administrative authority to
interpret section 18(b) to correct its defect. There was no evidence that the inclusion
of
"except" was a typographical error. It is illogical to "interpret" a regulation to mean the
opposite
of
its literal meaning, according to the ALJ. To do so is a de facto amendment to the
regulation without complying with the requirement
of
MMBA section 3507(a) to consult in
good faith with employee organizations concerning these regulations.
The ALJ concluded that by calling for an election instead
of
considering ERP
section 18(b) violative
of
the MMBA, and thereafter refusing to apply PERB
Regulations 61010, 61200, and 61380 as its local rule, the County violated the MMBA and
PERB Regulation 32603(a), (b), (f), and (g).
As a remedy, the ALJ ordered the County to rescind its October 9, 2012, Board
of
Supervisors action to "move forward with ACEA's call for an election to decertify
Local 1021" and to remove section 18(b) in its entirety from the ERP. The County was
ordered to cease and desist from applying any other timing component to its
5

decertification/certification process other than that contained in PERB regulations until it
amends its own timing provisions.
POSITIONS OF THE PARTIES
Both the County and ACEA except to the proposed decision, asserting that the ALJ
erred in imposing PERB' s regulations establishing a contract bar and window period when he
could have simply replaced ERP section 18(b) with the MMBA section 3507(b
).
	According to
the County and ACEA, the ALJ's order to "fill the gap" in the ERP with PERB's regulations
was unnecessarily overbroad.
Because the County made a conscious choice not to incorporate the contract bar
doctrine in its local rules, PERB cannot, according to the County, impose the doctrine under
the guise
of
its authority to "adopt rules to apply in areas where the public agency has no rule."
(MMBA section 3509.) The County cites long-standing precedent from both the courts and
PERB itself in support
of
its view that neither courts nor PERB has the authority to apply a
contract bar rule on a local agency where the agency has none. (Service Employees Internat.
Union
v.
City
of
Santa Barbara (1981) 125 Cal.App.3d 459 (Santa Barbara); City
of
San Rafael (2004) PERB Decision No. 1698-M.) In the County's view, by "exclusion
of
a
contract bar, it must be presumed that the County gave increased preference to the employees'
right to freely select their representation over the stability in labor relations gained by the
contract bar." (County's Briefln Support
of
Exceptions, at p. 5.)
Local 1021 urges PERB to affirm the proposed decision. The ALJ was correct in ruling
that the County should have applied PERB' s contract bar regulation because ERP section 18(b)
was illegal on its face. 	There was no evidence that the word "except" was a typographical
error. Therefore, the ALJ was required to invalidate section 18(b). In the absence of any time
component for the filing of a decertification petition, the only choice available to the ALJ was
6

to substitute PERB' s regulations on certification and decertification which contain the contract
bar doctrine. Because PERB' s certification bar and contract bar rules "work in concert in
support
of
the policy
of
stability and fairness in labor relations" the ALJ appropriately filled
the local regulatory "gap" with PERB Regulations 61010, 61200 and 61330(c), according to
Local 1021.
DISCUSSION
At issue in this case is the scope
of
PERB's "gap-filling" authority to impose a contract
bar where the local agency has chosen not to adopt such a policy. Unlike other statutes
administered by PERB, neither the MMBA nor the County's local rules contain a contract bar. 5
PERB Regulation 61200 contains both a certification bar and a contract bar.
In 2003, the MMBA was amended to give PERB the authority to "adopt rules to apply
in areas where a public agency has no rule." (MMBA § 3509(a).)6 In County
of
Siskiyou,
PERB held that based on the plain language
of
section 3509(a) and the legislative history
of
the 2003 amendment, "PERB regulations serve to 'fill in the gap' when a local agency has not
adopted a local rule on a particular representation issue." (County
of
Siskiyou, at p.
17.)
However, this begs the question: what should be done when the "gap" was a legitimate policy
choice
of
the local agency where, as here, the agency determines that the contract bar doctrine
5 The Educational Employment Relations Act (EERA), codified at Government Code
section 3540 et seq., provides for a contract bar in sections·3244.l(c), 3244.7(b)(l). The
Higher Education Employer-Employee Relations Act (HEERA), codified at Government Code
section 3560 et seq., provides for a contract bar in sections 3574(c), 3577(b)(l). Transit
Employer-Employee Relations Act codified at Public Utilities Code section 99560, provide for
a contract bar at section 99564.l(c).
6 PERB Regulation 61000, as adopted after the 2003 statutory amendment reads, in
pertinent part: "the Board will conduct representation proceedings
...
under the MMBA in
accordance with the applicable provisions of this Chapter only where a public agency has not
adopted local rules in accordance with MMBA section 3507."
7

should not be incorporated into the local rules? The "gap" in the County's ERP was not
inadvertent.
PERB has considered its "gap-filling" authority with varying results. In County
of
Siskiyou, after determining that the local rules were silent concerning amendment
of
certification, PERB applied regulations and case law concerning amendment
of
certification,
and dismissed the petition to amend, concluding that the petitioning party did not provethe
element
of
continuity
of
organizational identity.
In County
of
Orange, the Board declined to apply its regulation where the local agency
denied a severance petition. Local rules did not provide for severance, although they did
permit unit modifications petitions, but only those filed by either a verified employee
organization or by an exclusive representative. Because the organization seeking to represent
the severed employees was neither verified nor an exclusive representative, the county denied
the petition. The local rules also required a showing
of
50 percent support to accompany a unit
modification petition.
PERB upheld the county's application
of
its local rules, refusing to substitute PERB
regulations. The Board noted, "The absence
of
an explicit local representation rule does not
mean
...
that PERB regulations necessarily apply. Rather, PERB regulations will apply only
when the agency's local rules contain no provision that can accomplish what the petitioner is
seeking without placing an undue burden on the petitioner." (County
of
Orange, at p. 9.) Even
though the local rule did not explicitly provide for a severance procedure, and even though it
differed from PERB's severance rule by requiring a 50 percent showing
of
support instead
of
a
30 percent showing, the Board determined that these differences did not render the local rule
unreasonable. Nor did it prevent the petitioner from accomplishing its goal. In "examining
whether a local agency rule
...
is reasonable, PERB' s inquiry is not whether a different rule
8

would be more reasonable or whether the rule is reasonable when measured against an
arbitrary standard. Rather, the question is whether the rule "is consistent with and effectuates
the purposes
of
the express provisions
of
the MMBA." (County
of
Orange, at
p.
11, citations
omitted.) Because PERB regulations governing severance under EERA, HEERA and the Dills
Act7
require a showing
of
majority support among employees in the proposed new unit, the
County's 50 percent requirement was not contrary to the MMBA.
PERB again declined to apply its regulations in County
of
Riverside (2011) PERB
Decision No. 2163-M (County
of
Riverside), where the county denied a unit modification
because it was not accompanied by a proof
of
majority support
of
the employees sought to be
added. The local rules included provisions for unit modification, but did not require any
showing
of
support among the employees sought to be added.
The county urged PERB to imply a majority-support requirement to prevent employees
from "being unionized against their will." PERB declined to imply a majority support
requirement and also declined to apply PERB Regulation 61450(e)(l), PERB's rule requiring a
showing
of
support in unit modification petitions only when the group to be added exceeds
10 percent
of
the existing unit. "Gap-filling" with PERB rules is appropriate "only when the
agency has no rule at all that governs a representation issue." (County
of
Riverside, at p. 4.)
Since the County did have a rule regarding unit modification, PERB would not alter it or add
to it by requiring a showing
of
support. The Board noted that MMBA section 3507(a) gives
local agencies the ability to amend its rule "after consultation in good faith with" employee
representatives, and the County cannot add to its rules without participating in the statutorily
required consultation. Nor may PERB re-write local rules, even
if
the agency urges it to do so.
7 The Dills Act is codified at Government Code section 3512 et seq.
9

The County argues that City of San Rafael (2004) PERB Decision No. 1698-M
(San Rafael) controls here and requires PERB to set aside the proposed decision. We believe
this case is distinguishable from San Rafael, but acknowledge that this prior decision dictates
caution in imposing a contract bar where there is none in local rules. In San Rafael, the Board
rejected the union's contention that the local rules violated MMBA because they did not
provide a contract bar. PERB's decision relied on Santa Barbara, which declined to read into
the MMBA a contract bar requirement. The court noted that the Legislature had applied a
statutory contract bar in other statutes, in varying durations. From this, the court concluded:
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 (sec. 3500), the employees'
rights to free association on the one hand and the need for a stable
bargaining atmosphere on the other.
For this reason, the Board in San Rafael warned: "the Board's.authority to adopt regulations
and issue decisional authority in the face of silence in a statute must be exercised with
caution." Because the union provided no rationale to deviate from Santa Barbara, PERB
dismissed the unfair practice charge, refusing to insert a contract bar into a local ordinance
where none existed.
We do not read San Rafael or Santa Barbara as forever precluding PERB from
substituting its certification and decertification rules to fill the gap left by patently illegal rules
promulgated by local agencies, or where none exist. Rather, it stands for the principle that
neither the MMBA nor PERB regulations require local entities to adopt the contract bar
doctrine, and that PERB should proceed with caution in imposing a contract bar rule where
local entities have declined to do so.

Where, as here, the local rule that purports to establish the timing for the filing of a
decertification petition is directly contrary to the MMBA, PERB has no choice but to replace
the illegal rule with its own regulation on that subject. Unlike the local rules in County of
Orange and County of Riverside, there is no provision in the local rules here that can
accomplish what the petitioner seeks after section 18(b) is deleted. There is no dispute that the
County's certification bar rule, ERP section 18(b), was invalid because it would prohibit
decertification petitions unless they were filed within twelve months of certification. ERP
section 19(a) is the County's decertification rule. It is inextricably linked to section 18(b):
"Subject to the provisions of Section 18 of this Policy, employees ... may file with the Board
a decertification petition".
Section 18(b) is invalid because it creates the opposite of what the MMBA provides by
requiring, rather than prohibiting, decertification petitions to be filed only within twelve
months of certification. The purpose of MMBA section 3 507 is to create labor stability of at
least one year after an organization is recognized as the bargaining agent for employees of an
appropriate unit.
With this section excised, the ERP has no regulation establishing a certification bar as
required by MMBA section 3507. Nor does the ERP have a rule dictating when decertification
petitions can be filed. 	Therefore, it was appropriate for PERB to substitute its
Regulation 61200, Bar to Conducting Election. This regulation contains both the contract bar
and certification bar doctrine. 8 It also requires that a decertification petition be filed within a
8 PERB Regulation 61200 provides:
The Board shall dismiss a petition requiring a representation
election if it determines ( 1) there is currently in effect a
memorandum of understanding between the employer and
another employee organization recognized or certified as the
11

defined "window period"
if
there is an MOU in effect with a term
of
three years or less. The
ALJ also correctly applied PERB Regulations 61380 and 61010, both
of
which also define the
contract bar and window period, respectively.
PERB precedent makes clear that PERB's "gap-filling" does not extend to revising or
amending local rules, even
if
the local entity requests us to do so. (County
of
Riverside.) For
this reason, we reject the County's argument that we should amend ERP section 18(b) to
conform to MMBA section 3507(b). Two policy considerations inform our conclusion. 	First,
as the ALJ and our precedent have noted, the County is free to amend its ERP at any time. 	It
could have done so upon being placed on notice
of
the infirmity
of
section 18(b ). Second,
PERB will not impliedly revise local rules, because the MMBA requires that such revision or
adoption occur after the employer's consultation in good faith with its employee organizations.
(MMBA section 3507(a).) Permitting amendment by PERB order would allow the employer to
avoid its obligation under MMBA section 3507(a), an outcome obviously contrary to law. 	For
this reason we also reject the County's argument that it should be allowed to administratively
interpret ERP section 18(b) to conform to the MMBA.
The County also urges PERB to "fill the gap" with MMBA section 3507(b), instead
of
our regulations. We decline this invitation as well. The plain meaning
of
MMBA
section 3509(a) vests PERB with the authority to "adopt rules to apply in areas where a public
agency has no rule." (Emphasis added.) Our rules are contained in PERB Regulation 61200,
exclusive representative
of
any employees covered by a petition
requiring an election, unless the petition is filed less than 120
days but more than 90 days prior to the expiration
of
such
memorandum, provided that
if
a memorandum has been in effect
for three years or more, there shall be no restriction as to time
of
filing the petition; or, (2) that a representation election result has
been certified affecting the described unit or a subdivision thereof
within the 12 months immediately preceding the date of filing of
the petition.
12

and that is what fills the gap in this case until and unless the county revises its local rules. 	The
County itself could have decreed that MMBA section 3507 applies to its certification and
decertification procedure by adopting a proper rule. Indeed it may still do so, subject to the
good faith consultation duty of MMBA section 3507(a).
We are mindful that the County's ERP does not contain a contract bar, which is a
legitimate policy choice. However, the fact that PERB orders PERB Regulations 61200,
61010, and 613 80 to supply the time frame for filing decertification petitions in this case does
not prevent the County from correcting ERP section 18(b). Doing so would establish a
regulatory scheme that bars decertification petitions for the period of twelve months following
initial certification of an exclusive representative, but permits decertification petitions any time
after that period. Our decision does not impose PERB' s contract bar and window period any
longer than it takes for the County to amend its own ERP after consulting in good faith with its
employee organizations before making the desired changes.
We affirm the proposed decision and proposed remedy.
ORDER
Based on the findings of fact and conclusions of law and the entire record in this matter,
the Public Employment Relations Board (PERB or Board) finds that the County of Amador
(County) violated the Meyers-Milias-Brown Act (MMBA) sections 3503, 3506, 3506.5(a)
and (b), 3507 and 3509(b) and PERB Regulation 32603(a), (b), (f), and (g), by failing to apply
the appropriate local rule (PERB Regs. 61010, 61200, and 61380) by taking board action to
move forward with the Amador County Employees Association's (ACEA) call for an election
to decertify Service Employees International Union, Local 1021 (Local 1021) as the exclusive
representative of the County's General Employee Representation Unit (General Unit) and
verify the number of signatures received.
13

Pursuant to section 3509(b)
of
the MMBA, it is hereby ORDERED that the County, its
governing council and its representatives shall:
A.
	CEASE AND DESIST FROM:
1.	
Applying any other timing restrictions for the filing
of
decertification/
certification petitions other than the PERB regulations until it amends its own timing
provisions consistent with Employment Relations Policy (ERP) section 24, the MMBA and
PERB precedent.
2.	
Interfering with the right
of
employees to be represented by the exclusive
representative.
B.
	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
The County will rescind its October 9, 2012 Board
of
Supervisors action
to move forward with the ACEA's call for an election to decertify Local 1021 as the exclusive
representative
of
the General Unit and verify the number
of
signatures received.
2.	
Remove section 18(b) from the ERP.
3.	
Within (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the County's General Unit are
customarily posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
the Order. 	Such posting shall be maintained for a period
of
thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
14

4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
PERB or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or her designee. All
reports regarding compliance with this Order shall be concurrently served on Local 1021.
Chair Martinez and Member Huguenin joined in this Decision.
15

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. SA-CE-809-M, Service Employees
International Union, Local 1021
v.
County
of
Amador, in which all parties had the right to
participate, it has been found that the County
of
Amador (County) violated the Meyers-Milias
Brown Act (MMBA), Government Code sections 3503, 3506, 3506.5(a) and (b), 3507 and
3509(b) and PERB Regulation 32603(a), (b), (f), and (g), by failing to apply the appropriate
local rule (PERB Regs. 61010, 61200, and 61380) by taking board action to move forward
with the Amador County Employees Association's (ACEA) call for an election to decertify
Service Employees International Union, Local 1021 (Local 1021) as the exclusive
representative
of
the County's General Employee Representation Unit (General Unit) and
verify the number
of
signatures received.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Applying any other timing restrictions for the filing
of
decertification/
certification petitions other than the PERB regulations until it amends its own timing
provisions consistent with Employment Relations Policy (ERP) section 24, the MMBA and
PERB precedent.
2.	
Interfering with the right
of
employees to be represented by the exclusive
representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
The County will rescind its October 9, 2012 Board
of
Supervisors action
to move forward with the ACEA's call for an election to decertify Local 1021 as the exclusive
representative
of
the General Unit and verify the number
of
signatures received.
2. 	Remove section l 8(b) from the ERP.
Dated: 	COUNTY OF AMADOR
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, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Charging Party,
V.
COUNTY OF AMADOR,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-809-M
PROPOSED DECISION
(January 31, 2013)
AMADOR COUNTY EMPLOYEES
ASSOCIATION,
Joined Party.
Appearances: Weinberg, Roger & Rosenfeld by Matthew
J.
Gauger, Attorney, for Service
Employees International Union Local 1021; Gregory
G.
Gillott, County Counsel, for County
of
Amador; Rose Law PC, by Joseph W. Rose, Attorney, for Amador County Employees
Association.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's action regarding the filing
of
petition for
decertification/certification as inconsistent with its local rule and therefore violating the
Meyers-Milias-Brown Act (MMBA) 1 and PERB Regulations.2 The public employer contends
it did not violate the MMBA.
On October 8, 2012, the Service Employees International Union Local 1021
(Local 1021) filed an unfair practice charge (charge) against the County of Amador (County)
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated all statutory references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

that it violated its local rule. Local 1021 filed amended charges on October 24, November 16,
and December 6, 2012. On December 7, 2012, the Office of the General Counsel of the Public
Employment Relations Board (PERB) issued a complaint that on October 9, 2012, the County
agreed to hold an election decertifying Local 1021 and certifying the Amador County
Employee Association (ACEA) as inconsistent with the County's local rule or, in the
alternative, maintained an unlawful local rule, in violation of MMBA sections 3503, 3506,
3506.5(a) and (b), 3507 and 3509(b) and PERB Regulation 32603(a), (b), (f) and (g); failed to
bargain in good faith between October 16 and November 19, 2012 in violation ofMMBA
sections 3503, 3505, 3506, 3506.5(a), (b) and (c), and 3509(b) and PERB Regulation 32603(a),
(b ), and (c); and encouraged unit employees to support one organization in preference to
another in violation ofMMBA sections 3502, 3503, 3506, 3506.5 (a), (b) and (d), and 3509(b)
and PERB Regulation 32603(a), (b), and (d).
On December 19, 2012, the County answered the complaint denying the allegations and
asserting affirmative defenses. On December 17, 2012, an informal settlement conference was
held, but the dispute was not resolved.
On December 19, 2012, ACEA filed an application that it be joined as a party as ACEA
had a direct interest in the subject matter of the action before PERB. The County and
Local 1021 did not oppose the joinder. On January 9, 2013, ACEA was joined as a party
regarding paragraphs 1 through 9 (the local rule violation allegation) and 15 through 21 (the
unlawful assistance violation allegation) of the complaint as it had a substantial interest in the
outcome of the case and failure to join it would impede its ability to protect its interest. 	(PERB
Regulation 32164(c) and (d)(2).) On January 23, 2012, ACEA was also joined as a party
2

regarding paragraphs 10 through 14 (the bad faith bargaining violation allegation) of the
complaint.
On December 24, 2012, the ALJ informed the parties that PERB ordered an expedited
administrative hearing of the complaint, based upon the local rule violation allegation.
On January 9, 2013, a prehearing conference was held. Without objection from any of
the parties, the ALJ ordered that paragraphs 1 through 9 of the complaint (the local rule
violation allegation) be heard first on January 23, 2013.
On January 23, 2013, formal hearing was held as to the local rule violation allegation.
With the filing of post-hearing briefs on January 29, 2013, the matter was submitted for
proposed decision.
FINDINGS OF FACT
The County is a "public agency" within the meaning ofMMBA section 3501(c).
Local 1021 is a "recognized employee organization" within the meaning of MMBA section
350l(b) and an "exclusive representative" within the meaning of PERB Regulation 32016(b)
of the County's General Employee Representation Unit (General Unit). ACEA is an
"employee organization" within the meaning of MMBA section 3501(a).
Local 1021 and the County negotiated a Collective Bargaining Agreement covering the
period of October 1, 2010 through September 30, 2013 for employees in the General Unit.
Mike Fouch (Fouch) has been the Local 1021 Business Representative assigned to represent
the employees in the General Unit for the last five years. Prior to these five years, Fouch
represented the General Unit employees as a part of SEIU Local 790.
3

Local Rules
Pursuant to MMBA sections 3507 and 3507.1, on December 4, 1979, the County
adopted local rules, the Employment Relations Policy (ERP or Policy), within the meaning of
PERB Regulation 32016(c) for the administration of employer-employee relations. These
local rules provide in pertinent part:
SECTION 1. TITLE
This Resolution shall be known as the Employment Relations
Policy of the County of Amador.
SECTION 2. PURPOSE
It shall be the purpose of this Policy to promote full
communications between the County and its employees by
providing an orderly method of establishing wages, hours and
other terms and conditions of employment between the County
and employee organizations .... Nothing contained herein shall
be deemed to supersede the provisions of existing state law or the
provisions of any negotiated agreement between the County and a
recognized employee organization.
SECTION 7. EMPLOYEES: RIGHTS
a. 	Each individual employee shall have the following rights
which he/she may exercise in accordance with the law, applicable
ordinances, resolutions, rules and regulations:
(1) The right to form, join and participate in the activities of
employee organizations of his/her own choosing for the
purpose of representation on matters of his/her
employment relations with the County, ...
SECTION 18. DURATION OF CERTIFICATION; TIME FOR
FILING PETITIONS FOR CERTIFICATION OR
DECERTIFICATION
a. 	A certification by the Board of a recognized employee
organization of a representation unit shall continue in effect until
such recognized employee organization is decertified with respect
4

to said unit or the Board certifies the same or some other
employee organization as the exclusively recognized employee
organization for such unit or portion thereof.
b. 	Following the determination by the Board of an appropriate
representation unit and certification of a recognized employee
organization of such unit pursuant to Section 17 or 20 of this
Policy, no petition for certification as an exclusively recognized
employee organization of such unit, or portion thereof, shall be
filed with or received by the Board except during the twelve
months ensuing from the date of such certification.
SECTION 19. DECERTIFICATION OF RECOGNIZED
EMPLOYEE ORGANIZATION
a. 	Subject to the provisions of Section 18 of this Policy,
employees in a representation unit for which there is a recognized
employee organization may file with the Board a decertification
petition to determine whether or not the recognized employee
organization continues to represent a majority of the employees
in the representation unit. 	Such petition must be accompanied by
proof of employee support by 30% or more of the employees in
the representation unit.
b. 	Upon receipt of a petition for decertification, the Board shall
verify the proof of employee support. If the Board verifies the
required proof of employee support it shall call an election to be
held in accordance with Section 20 of this Policy.
SECTION 20. ELECTION PROCEDURE
a. 	Whenever an election is required pursuant to this Policy, the
Board shall request the State Conciliation Service to call and
conduct a secret ballot election in accordance with its own
procedures and regulations and pursuant to the provisions of this
Section.
d. 	The Board may adopt rules for the conduct of elections in
those cases where the State Conciliation Service declines to
conduct the election.
5

SECTION 23. INTERPRETATION
a. 	The Board shall have the authority for the administrative
interpretation of this Policy.
SECTION 24. RULES, PROCEDURES AND AMENDMENTS
a. 	After consulting with recognized and registered employee
organizations, the Board may from time to time amend this
Policy.
(Emphasis added.)
Fouch first reviewed the ERP approximately three to four years earlier than the day of
hearing when he was researching negotiations and impasse procedures. He had not read the
ERP in its entirety.
Petition for Decertification/Certification
On September 21, 2012, Joseph W. Rose (Rose), an attorney representing the ACEA,
wrote the Board of Supervisors, the County Administrative Officer, the County Counsel and
the Human Resources Director petitioning that the County hold a representation election
pursuant to ERP sections 18 through 20 to decertify Local 1021 as the exclusive representative
of the General Unit and to certify ACEA as the exclusive representative. The petition included
signatures in support of ACEA, which ACEA represented was more than 30% of the
employees in the General Unit.
The petition also addressed that it appeared that ERP section 18(b) contained a
"certification bar." Rose explained:
It appears the drafters of the [ERP] meant to include and restate
the MMBA's 12-month certification bar. Unfortunately,
however, someone obviously made an error and included the
word "except," so that this provision could, when read together
with Government Code section 3507 and applied literally, forever
6

bar every employee organization in the County from ever having
their exclusive status revoked by employees under any
circumstances once
recognized-the
MMBA would bar
revocation for the first twelve months and the [ERP] would bar
certification indefinitely thereafter.
(Emphasis added.)
Rose contended that the ERP conflicted with the MMBA by contradicting the 12-month
certification bar (MMBA section 3507(b)) and denied employee choice to decertify an
employee organization and choose another to represent them (MMBA sections 3502 and
3507). Rose encouraged the Board
of
Supervisors to exercise their right pursuant to ERP
Section
23
to interpret the provisions
of
the ERP and grant ACEA's request for a secret ballot
election. Rose closed the letter with an additional request:
Additionally, we request that the Board
of
Supervisors reform the
last sentence
of
section 18, subdivision (b)
of
the [ERP] to
conform to the MMBA by applying it without the word "except."
Alternatively, we request that the Board
of
Supervisors sever
section 18, subdivision (b)
of
the [ERP] entirely as facially
invalid.
(Emphasis added.)
On October 2, 2012, County Counsel Gregory G. Gillott (Gillott) forwarded an
"Agenda Transmittal Form" for the October 9, 2012 Board
of
Supervisors meeting to discuss
and decide whether to call for an election to decertify Local 1021.
On October 3, 2012, Gillott prepared a "Staff Report" for the Board
of
Supervisors for
the October 9, 2012 meeting regarding the petition to decertify Local 1021. Gillott also
identified the same problems with ERP section 18(b) as Rose did. Gillott advised that the ERP
certification bar would not withstand a legal challenge as it directly conflicted with the MMBA
certification bar (MMBA section 3507(b)). Gillott presented the Board of Supervisors with a
number of options: 	1) deem the ERP certification bar void and unenforceable, apply the
7

certification bar ofMMBA section 3507(b), and call for an election; and 2) determine that the
PERB regulations apply which set forth a contract bar and dismiss the petition for not being
filed within the applicable window period. Gillott concluded by recommending the Board of
Supervisors call for an election. Gillott advised that it would be unlikely that PERB would
impose a contract bar when it was not clearly included in the ERP.
On October 9, 2012, the Board of Supervisors voted to:
[M]ove forward with the request by Amador County Employee's
Association (ACEA) to call for an election regarding the possible
decertification of [Local 1021] as the exclusive representative for
General Unit employees with the verification of the requisite
number of signatures being received and direction given to staff
to take necessary steps to implement this action.
ISSUES
1. Was the unfair practice charge timely filed?
2. Did the County violate its local rule or the MMBA when it called for an election to
decertify Local 1021 as the exclusive representative of the General Unit?
CONCLUSIONS OF LAW
Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito and Vector Control District v. Public Employment Relations
Board (2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge. (Gavilan Joint
8

Community College District (1996) PERB Decision No. 1177.)3 The six-month limitation
period commences on the date that the conduct constituting an unfair labor practice was
discovered, and not the date
of
discovery
of
the legal significance
of
that conduct. (Compton
Unified School District (2009) PERB Decision No. 2016; Empire Union School District (2004)
PERB Decision No. 1650.) A charging party bears the burden
of
demonstrating that the charge
was timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
In cases involving violations
of
local rules, the statute
of
limitations generally begins to
run when the rule is violated. (City & County
of
San Francisco (2009) PERB Decision
No. 2041-M.) In County
of
Orange (2006) PERB Decision No. 1868-M, p. 2, the Board did
not reach the issue as to whether there was a unreasonable regulation regarding a signature
requirement, in part, because the employee organization never attempted to obtain any proof
of
support within the six month period prior to the filing
of
the unfair practice charge. The mere
fact that an arguably unreasonable rule exists does not trigger PERB jurisdiction and PERB
cannot issue advisory opinions. (Id. at pp. 5 and 7.)
In this case, all parties admit that the certification bar in ERP section 18(b) violated
MMBA 3507(b), however, PERB's jurisdiction was not triggered until the Board
of
Supervisors voted to call for a decertification election
of
Local 1021 on October 9, 2012. As
Local 1021 filed its charge on October 8, 2012, challenging what it expected the Board
of
Supervisors to act upon on October 9, 2012, the charge is therefore deemed timely.
Pertinent MMBA Sections and PERB Regulations:
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608.)
9

The pertinent MMBA sections concerning a public agency's reasonable rules related to
a petition for decertification/certification provide:
3500 ... It is also the purpose of this chapter to promote the
improvement of personnel management and employer-employee
relations within the various public agencies in the State of
California by providing a uniform basis for recognizing the right of
public employees to join organizations of their own choice and be
represented by those organizations in their employment
relationships with public agencies ....
3502 Except as otherwise provided by the Legislature, public
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 ....
3507 (a) A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of
a recognized employee organization or organizations for the
administration of employer-employee relations under this chapter.
The rules and regulations may include provisions for all of the
following:
[ii ... ii]
(3) Recognition of employee organizations.
[ii ... ii]
(b) Exclusive recognition of employee organizations formally
recognized as majority representatives pursuant to a vote of the
employees may be revoked by a majority vote of the employees
only after a period of not less than 12 months following the date of
recognition.
(c) No public agency shall unreasonably withhold recognition of
employee organizations.
(d) Employees and employee organizations shall be able to
challenge a rule or regulation of a public agency as a violation of
this chapter. This subdivision shall not be construed to restrict or

expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive,
of
Section 3509.
3509 (a) The powers and duties
of
the board described in Section
3541.3 shall also apply, as appropriate, to this chapter and shall
include the authority as set forth in subdivisions (b) and (c
).
Included among the appropriate powers
of
the board are the power
to order elections, to conduct any election the board orders, and to
adopt rules to apply in areas where a public agency has no rule.
(b) A complaint alleging any violation
of
this chapter or
of
any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge
of
unfair practice is justified and,
if
so, the appropriate
remedy necessary to effectuate the purposes
of
this chapter, shall
be a matter within the exclusive jurisdiction
of
the board,
...
The
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations
of
this chapter.
(c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation, recognition,
and elections.
(Emphasis added.)
The pertinent PERB Regulations regarding the violation
of
the MMBA or a local rule
related to a petition for decertification/certification provide:
32603 It shall be an unfair practice for a public agency to do any
of
the
following:
(f) Adopt or enforce a local rule that is not in conformance with
MMBA.
(g) In any other way violate MMBA or any local rule adopted pursuant to
Government Code section 3507.
61010 "Window period" means the 29-day period which is less
than 120 days but more than 90 days prior to the expiration date
of a lawful memorandum of understanding negotiated by the
11

public agency and the exclusive representative. Expiration date
means the last effective date
of
the memorandum.
Notwithstanding the provisions
of
Section 32130, the date on
which the memorandum
of
understanding expires shall not be
counted for the purpose
of
computing the window period.
61200 The Board shall dismiss a petition requiring a
representation election
if
it determines (1) there is currently in
effect a memorandum
of
understanding between the employer
and another employee organization recognized or certified as the
exclusive representative
of
any employees covered by a petition
requiring an election, unless the petition is filed less than 120
days but more than 90 days prior to the expiration
of
such
memorandum, provided that
if
a memorandum has been in effect
for three years or more, there shall be no restriction as to time
of
filing the petition; or, (2) that a representation election result has
been certified affecting the described unit or a subdivision thereof
within the 12 months immediately preceding the date
of
filing
of
the petition.
613 80 (a) Upon receipt
of
a petition for decertification, the Board
shall investigate and, where appropriate, conduct a hearing and/or
an election or take such other action as necessary.
(b) The petition shall be dismissed
if
the existing exclusive
representative files a valid disclaimer
of
interest in representing
employees in the unit within 20 days
of
the date the petition is filed
with the regional office.
(c) The petition shall be dismissed (1) whenever there is currently
in effect a memorandum
of
understanding between the employer
and the exclusive representative
of
the employees covered by a
petition, unless the petition is filed during the window period
defined in Section 61010
of
these regulations, provided that
if
such
memorandum has been in effect for three years or more, there shall
be no restriction as to time
of
filing the petition; or, (2) whenever a
representation election result has been certified affecting the
described unit or a subdivision thereof within the 12 months
immediately preceding the date
of
filing
of
the petition, or, (3)
whenever the employer has, within the previous 12 months,
lawfully recognized the exclusive representative in the unit.
(Emphasis added.)
12

Unreasonable Regulation
A local government agency may not adopt rules and regulations which "would frustrate
the declared policies and purposes
of
the [MMBA]
...
[T]he power reserved to local agencies
...
was intended to permit regulations which are 'consistent with, and effectuate the declared
purposes of, the statute as a whole."' (Huntington Beach Police Officers Association
v.
City
of
Huntington Beach (1976) 58 Cal.App.3d 492, 502.) The inquiry does not concern whether
PERB would find a different rule or different application
of
the rule more reasonable, or
whether the existing rule or its application is unreasonable measured against an arbitrary
standard. Instead, the inquiry is whether a disputed rule or its application is consistent with
and effectuates the purposes
of
the express provisions
of
the MMBA. (International
Brotherhood
of
Electrical Workers, Local 1245
v.
City
of
Gridley (1983) 34 Cal.3d 191;
Huntington Beach Police Officers Association
v.
City
of
Huntington Beach (1976) 58
Cal.App.3d 492; City
of
San Rafael (2004) PERB Decision No. 1698-M, and County
of
Monterey (2004) PERB Decision No. 1663-M.) When a local agency's rule or its application
is challenged as unreasonable, the burden
of
proof is on the challenging party. (Organization
of
Deputy Sheriffs
v.
County
of
San Mateo (1975) 48 Cal.App.3d 331, 338 and PERB
Regulation 32178.)
All parties admit that the timing component for filing petitions for
decertification/certification
of
ERP section 18(b) directly conflict with MMBA section
3507(b ). ERP section l 8(b) only allows a decertification/certification petition to be filed
within the first 12 months of the exclusive representative's certification and MMBA 3507(b)
does not allow for a certification of an exclusive representation to be revoked during the first
12 months. On its face, ERP section 18(b) conflicts with MMBA 3507(b).
13

The parties disagree on what should take place after the timing component
of
ERP
18(b) is found to conflict with MMBA section 3507(b). Again, the timing component
of
ERP
is as follows:
no petition for certification as an exclusively recognized
employee organization
of
such unit, or portion thereof, shall be
filed with or received by the Board except during the twelve
months ensuing from the date
of
such certification.
(Emphasis added.)
Local 1021 argues that ERP section 18(b) should be struck as clearly violative
of
MMBA 3507(b
).
	With this subdivision struck, the local rule would not have a time component
for the filing
of
petitions for certification. Additionally, as ERP section l 9(a), which concerns
the filing
of
decertification petitions, specifically states, "[ s]ubject to the provisions
of
Section
18
of
this Policy," the time component for decertification petitions in the local rule would also
no longer exist. Pursuant to MMBA section 3509, subdivision (a), "PERB regulations serve to
'fill in the gap' when a local agency has not adopted a local rule on a particular representation
issue." (County
of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No.
2113-M, p. 17.) Under this standard, PERB regulations apply only when the agency has no
rule which governs the representation issue. (County
of
Orange (2010) PERB Decision No.
2138-M; County
of
Siskiyou/Siskiyou County Superior Court.) In this case, ERP section 18(b)
is directly in conflict with MMBA section 3507(b ). When the local rule is found to be invalid,
it must be struck and PERB Regulations 61010, 61200, and 61380 must be applied or
substituted to provide the timing requirement.
	If
the Board of Supervisors later desires to
change its ERP to reflect its own timing requirement, pursuant to MMBA section 3507 and
ERP section 24, it is free to do so, barring any other MMBA and case law restrictions.
14

ACEA and the County contend that the County never intended that the word "except"
be included in ERP section 18(b) as it was a "technical" or "typographical error" and
if
"except" was removed it would track the provision
of
MMBA section 3507(b). They further
argue that the County exercised its authority to administratively interpret ERP section 18(b)
pursuant ERP section
23
to ignore the word "except." The problem with their argument is that
the express language
of
the Board
of
Supervisors' October
9,
2012 action did not make such an
administrative interpretation and the Board never amended the ERP to reflect such
understanding. Additionally, since the ERP became effective on December 4, 1979, no
interpretive evidence was presented that the use
of
the word "except" was merely a technical or
typographical error and that ERP section 18(b) was meant to track MMBA section 3507(b ).
While their argument as to the misplacement
of
"except" in ERP section 18(b) is
understandable, neither the County nor ACEA presented any legislative intent supporting such
argument.
ACEA's and the County's contention that the Board
of
Supervisors administratively
interpreted ERP section 18(b) also strains the meaning
of
the word "interpretation." ERP
section 18(b) and MMBA section 3507(b) are completely opposite in their meaning. To
interpret a provision to mean its opposite literal meaning goes beyond interpretation and into
the realm
of
legislation (amending the Policy), especially when a PERB Regulation exists
which "fills the gap." This case does not present a matter of interpreting between two likely
meanings
of
the construction
of
a phrase, but
of
legislating a de facto amendment without
following the "consultation in good faith" requirement found in MMBA section 3507(a).
ACEA and the County contend that the Board of Supervisors' action to move forward
with the election and ignore a facially invalid section, ERP section 18(b ), was the correct
15

action to take. They cite County
of
Calaveras (2012) PERB Decision No. 2252-M in support
of
their argument. In County
of
Calaveras, the County had a local rule requiring peace officers
to be in a separate unit from non-peace officers which was found to have interfered with
employees' rights pursuant to MMBA sections 3508(a) and (d). When the County ignored its
own local rule and applied the provisions
of
the MMBA, PERB did not find that the County
violated the MMBA. However, in County
of
Calaveras, the local rule in question did not have
a "gap" that could be filled by PERB Regulations, where in the instant case, PERB Regulations
61010, 61200, and 613 80 all apply to provide the timing requirement and "fill the gap" when
the local rule has been determined to be unlawful under the MMBA. To "apply the MMBA"
in this case would be to apply MMBA section 3509(a) and "fill the gap" with the PERB
Regulations. For these reasons, County
of
Calaveras is found to be inapposite to the facts in
this case.
Because the County ignored its ERP and called for an election, instead
of
considering
the timing· component
of
ERP section 18(b) violative
of
MMBA section 3507(b) and applying
or enforcing PERB Regulations 61010, 61200, and 61380 as its local rule, it violated MMBA
sections 3503, 3506, 3506.5(a) and (b), 3507 and 3509(b) and PERB Regulation 32603(a), (b),
(f) and (g).4
REMEDY
Government Code section 3541.5(c), incorporated within MMBA sections 3509(a) and
(b), 5 authorizes PERB:
As a violation has been determined on the application of the local rule, the ALJ need
not reach a finding on the "alternative" allegation of maintaining an unlawful rule.
16
5 Section 3509(a) provides that the powers and duties of PERB described in
Government Code section 3541.3 shall also apply to the MMBA. Section 3509(b) describes

to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
It
has been found that the County violated MMBA sections 3503, 3506, 3506.5(a) and
(b), 3507 and 3509(b) and PERB Regulation 32603(a), (b), (f) and (g), when it did not apply
the PERB Regulations in the absence
of
a timing component for decertification/certification
and called for an election to decertify Local 1021. Therefore, it is appropriate to order that the
County rescind its October 9, 2012 Board action to move forward with ACEA's call for an
election to decertify Local 1021 as the exclusive representative
of
the General Unit and verify
the number
of
signatures received; and, to remove ERP section 18(b) in its entirety. 6 The
County will also be ordered to cease and desist from applying any other timing component to
its decertification/certification process other than the PERB Regulations, until it amends its
own timing provisions consistent with ERP section 24, the MMBA, and PERB precedent.
It
is
also appropriate to order the County to cease and desist from interfering with the right
of
employees to be represented by the exclusive representative.
It
is also appropriate that the County be ordered to post a notice incorporating the terms
of
the order at all locations in the County where notices to public employees are customarily
posted for employees in the General Unit. Posting such a notice, signed by the authorized
agent
of
the County, will provide employees with notice that the County has acted in an
the unfair practice jurisdiction of PERB. Government Code section 3541.3(i) empowers PERB
to investigate unfair practice charges, and to take any action and make determinations as PERB
deems necessary to effectuate the policies of this chapter.
6 Once the timing component phrase is removed from the subdivision, the rest of the
subdivision does not stand alone, but is rather contingent on the timing component. Therefore,
the entire subdivision must be struck.
17

unlawful manner, is being required to cease and desist from such activity, and will comply
with the _order. It effectuates the purposes of the MMBA that employees be informed of the
resolution of this controversy and the County's readiness to comply with the ordered remedy.
(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the County of Amador (County) violated the Meyers-Milias-Brown Act
(MMBA) sections 3503, 3506, 3506.5(a) and (b), 3507 and 3509(b) and PERB Regulation
32603(a), (b), (f) and (g), by failing to apply the appropriate local rule (PERB Regulations
61010, 61200, and 61380) and taking Board action to move forward with the ACEA's call for
an election to decertify Local 1021 as the exclusive representative of the General Unit and
verify the number of signatures received.
Pursuant to section 3509(b) of the MMBA, it hereby is ORDERED that the County, its
governing council and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Applying any other timing restrictions for the filing of
decertification/certification petitions other than the PERB Regulations until it amends its own
timing provisions consistent with ERP section 24, the MMBA, and PERB precedent.
2. 	Interfering with the right of employees to be represented by the exclusive
representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
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1. 	The County will rescind its October 9, 2012 Board action to move
forward with the ACEA's call for an election to decertify Local 1021 as the exclusive
representative of the General Unit and verify the number of signatures received.
2. 	Remove section 18(b) from the ERP.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the County's General Unit are
customarily posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the County, indicating that it will comply with the terms of
this Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Local 1021.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit.
8, §§
32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (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
California Code
of
Regulations, title 8, section 32135,
subdivision (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,
§ 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§
32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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