Oak Valley Hospital District (PERB 2583M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED STEELWORKERS TEMSA LOCAL
12911,
Charging Party, 	Case No. SA-CE-1008-M
v. 	PERB Decision No. 2583-M
OAK VALLEY HOSPITAL DISTRICT, 	September 10, 2018
Respondent.
Appearances: Gilbert & Sackman by Pamela Chandran and Benjamin M. O’Donnell,
Attorneys, for United Steel Workers TEMSA Local 12911; Lozano Smith by Sloan R.
Simmons and Gabriela D. Flowers, Attorneys, for Oak Valley Hospital District.
Before Banks, Winslow, Shiners, and Krantz, Members.
DECISION
SHINERS, Member: The prevailing party below, United Steelworkers TEMSA Local
12911 (USW or Union), filed exceptions challenging the conclusion of an administrative law
judge (ALJ) that the Meyer-Milias-Brown Act (MMBA or Act)1 permits a local public agency
employer to withdraw recognition from an exclusive representative when the conditions for
withdrawal under federal labor law are satisfied.2 Although the Board has previously declined
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 In the proposed decision, the ALJ also concluded that: (1) the District failed to follow
its local rule requiring independent verification of signatures on a representation petition;
(2) the District failed to follow its local rule allowing 15 days to appeal a determination by its
Employee Relations Officer; (3) the District made an unlawful unilateral change and interfered
with employee free choice by refusing to allow employees to retract their signatures on a
decertification petition; and (4) the decertification petition was not tainted by District
misconduct. Neither party filed exceptions to these conclusions. Accordingly, these issues are
not before the Board and the ALJ’s conclusions regarding them are binding on the parties.
(PERB Regs. 32215, 32300, subd. (c) [PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.]; City of Torrance (2009) PERB Decision No. 2004,
p. 12.)

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to consider initial exceptions filed by a prevailing party, we do so in this case to prevent the
parties from being bound by an erroneous legal standard should similar facts arise in the future.
Based on our review of the proposed decision, the entire record, and relevant legal authority in
light of the parties’ submissions, we conclude that under the MMBA decertification may be
accomplished only by employee vote, and therefore the Oak Valley Hospital District’s
(District) local rule allowing the District to withdraw recognition from an exclusive
representative without an employee vote violates the Act.
BACKGROUND3
The District has adopted an Employee Relations Ordinance (Local Rules) to address
representation matters. The Local Rules are administered by the District’s Employee Relations
Officer (ERO). At all relevant times, District Vice President of Human Resources Brian Beck
(Beck) served as the ERO.
Section 12 of the Local Rules states, in its entirety:
Section 12. Provision for Decertification
(a) A Petition for Decertification alleging that an employee
organization granted recognition is no longer the majority
representative of the employees in an appropriate unit may be
filed with the District Employee Relations Officer at any time
following the first full one (1) year of formal recognition
pursuant to Sections 7(6)(a) or (b) above. However, if a
Memorandum of Understanding with a term of up to three years
is in effect, then a Petition for Decertification may not be filed
except during a sixty (60) day window period commencing one
hundred and fifty (150) days prior to the termination date of a
Memorandum of Understanding. If a Memorandum of
Understanding with a term in excess of three years is in effect,
then a petition for decertification may be filed at any time
commencing one hundred and fifty (150) days prior to the
expiration of the third year of the Memorandum of
3 Because it is the only issue before the Board on appeal, we relate only the facts
relevant to the issue of the lawfulness of the District’s local rule allowing withdrawal of
recognition.
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Understanding. The Petition for Decertification may be filed by
an employee, a group of employees or their representative, or an
Employee Organization. The Petition, including all
accompanying documents, shall be verified, under oath, by the
person signing it. It may be accompanied by a Petition for
Recognition by a challenging organization. The Petition for
Decertification shall contain the following information.
(1) The name, address and telephone number of the petitioner
and a designated representative authorized to receive notices or
requests for other information.
(2) The name of the formally recognized employee organization.
(3) An allegation that the recognized employee organization no
longer represents a majority in the appropriate unit, and any other
relevant and material facts.
(4) Written proof that at least thirty percent (30%) of the
employees in the unit do not desire to be represented by the
recognized Employee Organization. Such written proof shall be
dated within six (6) months of the date upon which the petition is
filed and shall be submitted for confirmation to the Service in the
same manner as the Petition for Recognition.
(b) Upon verification by the [State Mediation and Conciliation]
Service that at least thirty percent (30%) of the employees in the
bargaining unit do not desire to be represented by the recognized
employee organization, the Service shall conduct a secret ballot
election pursuant to the provisions of Section 11 of this
Resolution. The recognized employee organization shall be
decertified if a majority of the eligible voters who cast votes fail
to cast valid ballots for the employee organization. The formally
recognized employee organization shall be decertified if a
majority of those casting valid ballots vote for decertification.
(c) Nothing herein shall preclude the District from unilaterally
withdrawing recognition when it is in possession of objective
criteria that demonstrates the employee organization no longer
represents a majority of employees in the applicable bargaining
unit.
On April 13 or 14, 2017,4 Beck received from a group of employees (Petitioners) a six
page single-spaced letter with the heading, “Employee Request for Removal of Representation
by the United Steelworkers 12-911 [sic] (full bargaining name below) via proof of support,
4 All dates are in 2017 unless otherwise indicated.
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signature pages and decertification.” The first page of the petition specifically requested that
the District immediately withdraw recognition from the Union under Local Rule 12(c).
Included in the text of the letter were the typed names of all the employees who signed the
proof of support. A few days later, the Petitioners asked the District to replace the original
petition with a “revised” petition dated April 18. The revised petition redacted the names of
those who signed the proof of support.
On April 20, Beck notified the Petitioners in writing that the revised April 18 petition
failed to comply with Local Rule 12(a) because it did not contain verification by the
petitioning parties, signed under oath, that the petition was true and correct. Later that day, the
Petitioners submitted a corrected petition. After determining that the earlier procedural defects
had been corrected, Beck began to process the petition.
After comparing employees’ signatures on the petition to their signatures on recent
personnel documents, Beck determined that a majority of employees in the bargaining unit had
signed the petition. Because Local Rule 12(c) permits withdrawal of recognition from an
exclusive representative when “objective criteria” demonstrate that it has lost the support of a
majority of the bargaining unit members, and the petition appeared to provide the necessary
objective criteria, Beck concluded that Local Rule 12(c) was applicable and no election would
be necessary.
Beck then consulted with the District’s Chief Executive Officer, John McCormick
(McCormick), who agreed that Local Rule 12(c) could be applied based on the signatures on
the petition. Despite their agreement, Beck and McCormick decided to get the approval of the
District’s Board of Directors before actually withdrawing recognition from USW. At a public
meeting on May 3, the Board voted unanimously to adopt McCormick’s recommendation that
recognition be withdrawn from USW pursuant to Local Rule 12(c). After the meeting,
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McCormick sent an e-mail to USW representative Steven Sullivan informing him that the
Board had withdrawn recognition from the Union and cancelling the next day’s bargaining
session.
DISCUSSION
In its exceptions, USW—the prevailing party below—does not challenge the outcome
of the proposed decision, which ordered the District to rescind its withdrawal of recognition,
but merely several of the ALJ’s legal conclusions supporting that outcome. Before discussing
the merits of USW’s exceptions, we explain why the particular circumstances of this case
warrant consideration of the prevailing party’s initial exceptions.
1. 	Reasons for Considering USW’s Exceptions
In Fremont Unified School District (2003) PERB Decision No. 1528 (Fremont), the
Board declined to consider initial exceptions filed by the prevailing party, stating: “Absent
good cause, the Board will dismiss as without merit any initial exceptions filed by a prevailing
party unless the Board’s ruling on the exceptions would change the outcome of the ALJ
decision.” (Id. at p. 3.) The rationale for this policy is that “[t]he Board should not be forced to
expend its limited resources correcting harmless errors in the record.” (Ibid.)
If we were to agree that the ALJ’s legal conclusions were wrong in the manner urged by
USW, the outcome of the case would not change, i.e., the District’s local rule allowing
withdrawal of recognition would still be unlawful. Under these circumstances, Fremont
typically would dictate dismissal of the exceptions. But this case presents good cause for the
Board to consider USW’s exceptions. If we were to dismiss the exceptions and declare the
proposed decision final, as the Board did in Fremont, the ALJ’s legal conclusions would be
binding on the parties. (PERB Reg. 32215; Fremont, supra, PERB Decision No. 1528, p. 2.)
Consequently, the ALJ’s conclusion that an employer may withdraw recognition when the
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conditions for withdrawal under federal labor law are satisfied would apply to these parties
going forward. Because a similar situation may arise between the parties in the future, it is
appropriate for the Board to address the merits of USW’s exception that the MMBA does not
permit withdrawal of recognition.
2. 	The MMBA Does Not Permit Withdrawal of Recognition without an Employee Vote
USW excepts to the ALJ’s conclusion that federal law regarding withdrawal of
recognition, specifically Levitz Furniture Co. of the Pacific, Inc. (2001) 333 NLRB 717
(Levitz), applies under the MMBA. Levitz allows an employer to withdraw recognition from
an incumbent union based upon objective evidence of a loss of majority support within the
bargaining unit. The ALJ invalidated Local Rule 12(c) because it conflicts with Levitz by
eliminating the presumption that an exclusive representative has majority support within the
unit.
We agree with USW that Levitz is inapplicable under the MMBA because the language
of the Act precludes withdrawal of recognition. MMBA section 3507, subdivision (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.
In construing statutory language, we must “ascertain the intent of the enacting legislative body
so that we may adopt the construction that best effectuates the purpose of the law.” (Orange
County Water District (2015) PERB Decision No. 2454-M, p. 13.) MMBA section 3507,
subdivision (b)—the only MMBA provision that addresses revocation of exclusive
representation—says that exclusive representation “may be revoked by a majority vote of the
employees.” This language indicates the Legislature intended to prohibit revocation of exclusive
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representation by any means other than an employee vote. (See, e.g., Santa Clara County
Superior Court (2014) PERB Decision No. 2394-C, pp. 19-20 [applying the maxim of
expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) to
conclude that a statute’s repeated references to meeting and conferring over the impact of court
closures indicated that the Legislature did not intend to impose a meet and confer obligation
over a decision to close the court].)
In contrast, federal law does not require that withdrawal of recognition be supported by
an employee vote, but only by objective evidence of actual loss of majority support. (Levitz,
supra, 333 NLRB at p. 725.) Under the Levitz standard, lawful withdrawal was found where a
majority of employees in the bargaining unit signed a petition that said, “We the employee’s
[sic] of Wurtland nursing and rehab wish for a vote to remove the Union S.E.I.U. 1199.”
(Wurtland Nursing & Rehabilitation Center (2007) 351 NLRB 817, 818.) Levitz also allows
withdrawal based on statements by individual employees that they no longer desire to be
represented by the incumbent union. (Anderson Lumber Co. (2014) 360 NLRB 538, 543.)
However, neither a petition seeking an election nor a statement that an employee no longer
wishes to be represented constitutes a “vote.”5 Levitz therefore is incompatible with MMBA
section 3507, subdivision (b)’s employee vote requirement.
The District points out that although the National Labor Relations Act (NLRA) permits
an employer to file a decertification petition, the National Labor Relations Board (NLRB)
nevertheless continues to recognize an employer’s ability to withdraw recognition under Levitz,
supra, 333 NLRB 717. Yet the NLRA contains no statutory language comparable to that in
5 Webster’s dictionary defines “vote” as a “formal expression of opinion or will,” while
the act of voting is defined as an expression of one’s view in response to a poll. (See
https://www.merriam-webster.com/dictionary/vote.) Black’s Law Dictionary defines a “vote”
as “the expression of one’s preference or opinion in a meeting or election by ballot, show of
hands, or other type of communication.” (VOTE, Black’s Law Dictionary (10th ed. 2014).)
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MMBA section 3507, subdivision (b). Accordingly, federal law provides no meaningful
guidance in this case. (Capistrano Unified School District (2015) PERB Decision No. 2440,
p. 15.) Rather, we must follow the Legislature’s command that an employee vote is necessary
to decertify an exclusive representative, which precludes the Board from creating or adopting a
non-statutory withdrawal doctrine as the federal board has done.
The District also argues that International Brotherhood of Electrical Workers v. City of
Gridley (1983) 34 Cal.3d 191 (Gridley) recognizes the possibility of withdrawal of recognition
under the MMBA. Specifically, the District relies on the Court’s statement that “[t]his is not to
say, of course, that under the MMBA revocation of recognition would necessarily be
inappropriate in all situations.” (Id. at p. 206.) When viewed in context, the Court’s statement
cannot bear the heavy burden the District places on it.
In Gridley, the city invoked a local rule allowing it to revoke an exclusive
representative’s recognition for engaging in an illegal strike. The Court determined that “the
sanction of revocation is clearly inconsistent with [the MMBA’s] provisions guaranteeing
public employees the right to be represented by organizations of their own choosing and with
the stated purposes of the MMBA.” (Id. at p. 197.) Relying in part on section 3507,
subdivision (b), the Court held that “recognition must be based on employee choice.” (Id. at
p. 201.)
The Court went on to address the city’s reliance on Union Nacional de Trabajadores
(Carborundum Co. of Puerto Rico) (1975) 219 NLRB 862, where the NLRB revoked a union’s
certification for engaging in brutal and unprovoked violence that made collective bargaining
impossible. After addressing the extraordinary circumstances of that case (and other authority
cited by the city), the Court concluded “[t]his is not to say, of course, that under the MMBA
revocation of recognition would necessarily be inappropriate in all situations.” (Gridley,
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supra, 34 Cal.3d at p. 206.) The Court immediately went on to note that because the case
before it did not involve “facts at all comparable to [Union Nacional de Trabajadores, it had]
no occasion to determine whether revocation would be permissible in such a case.” (Ibid.)
Thus, although it left open the possibility of revocation where a union engaged in egregious
misconduct that nullified the statutory collective bargaining framework, the Gridley Court did
not determine whether MMBA section 3507, subdivision (b) permits withdrawal of recognition
based on an asserted loss of majority support. Because cases are not authority for propositions
not considered (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 58), Gridley does
not assist the District here.
Ultimately, we agree with the ALJ that Local Rule 12(c) is unreasonable, but our
conclusion is based on the language of the MMBA itself. A local public agency employer may
not adopt or enforce a local rule that is contrary to or frustrates the declared policies and
purposes of the MMBA. (County of Calaveras (2012) PERB Decision No. 2252-M, p. 2,
citing Huntington Beach Police Officers Assn. v. City of Huntington Beach (1976)
58 Cal.App.3d 492, 502.) MMBA section 3507, subdivision (b) provides that exclusive
representation “may be revoked by a majority vote of the employees.”
As this case demonstrates, Local Rule 12(c) allows the District to withdraw recognition
without a vote of the employees based solely on undefined “objective criteria” purportedly
showing the exclusive representative no longer enjoys majority support among employees in
the bargaining unit. Because this outcome is contrary to the policy declared by MMBA
section 3507, subdivision (b), Local Rule 12(c) is unreasonable and therefore violates the
MMBA.
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Since our ruling on this exception fully resolves the complaint’s allegation concerning
Local Rule 12(c), it is unnecessary for us to address USW’s remaining exceptions. (United
Teachers Los Angeles (Raines, et al.) (2016) PERB Decision No. 2475, pp. 54-55.)
REMEDY
Because we find Local Rule 12(c) unreasonable, it is necessary to declare Local
Rule 12(c), and the May 3, 2017 order withdrawing recognition from USW pursuant to that
Rule, to be void and unenforceable. (City & County of San Francisco (2017) PERB Decision
No. 2536-M, pp. 42-43.) The Order also will incorporate the remedies the ALJ ordered for the
remaining violations that were not the subject of exceptions.
ORDER
Upon the findings of fact and conclusions of law in this Decision and those contained in
the proposed decision in this case, it is found that the Oak Valley Hospital District (District)
violated the Meyers-Milias-Brown Act (MMBA or Act), Government Code sections 3507 and
3509, subdivision (b), and PERB Regulation 32603, subdivisions (a), (b), (f), and (g) by
applying an unreasonable local rule, unreasonably failing to apply local rules, and amending its
local rules without providing notice or an opportunity for United Steelworkers TEMSA Local
12911 to demand consultation over the amendment.
Pursuant to Government Code section 3509, subdivision (a), it hereby is ORDERED
that Local Rule 12(c) and the District Board of Directors’ May 3, 2017 order withdrawing
recognition from United Steelworkers TEMSA Local 12911 are void and unenforceable. The
District, its governing board, and its representatives also are ORDERED to:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and confer with United Steelworkers TEMSA Local
12911 as the recognized majority representative of the Hospital Unit.
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2. 	Unilaterally creating new local rules without first giving notice to
recognized employee organizations and an opportunity for such organizations to demand
consultation.
3. 	Interfering with the right of bargaining unit employees to be represented
by an employee organization.
4. 	Denying United Steelworkers TEMSA Local 12911 its right to represent
employees in their employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Upon demand by United Steelworkers TEMSA Local 12911, and
continuing for a period of no less than six months from commencement, meet and confer in
good faith with United Steelworkers TEMSA Local 12911 as the recognized majority
representative of the Hospital Unit
2. 	Process any and all future decertification petitions in the manner dictated
by the local rules, which, absent a lawful modification includes:
a. 	submitting the proof of support accompanying any such petition
to the State Mediation and Conciliation Service for verification in accordance with section
12(a)(4) of the Employee Relations Ordinance (ERO); and
b. 	permitting employees to retract signatures on a proof of support
for a decertification petition in accordance with ERO section 7(a)(6).
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 Hospital Unit customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, 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
11

steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
In addition to the physical posting of paper notices, the Notice shall be posted by
electronic message, intranet, internet site, and other electronic means customarily used by the
District to communicate with employees in the Hospital Unit. (City of Sacramento (2013)
PERB Decision No. 2351-M.)
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, 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 United Steelworkers TEMSA Local 12911.
Members Banks, Winslow, and Krantz joined in this Decision.
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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-1008-M, United Steelworkers
TEMSA Local 12911 v. Oak Valley Hospital District, in which all parties had the right to
participate, it has been found that the Oak Valley Hospital District violated the Meyers-Milias-
Brown Act (MMBA), Government Code section 3500 et seq., by applying an unreasonable
local rule, unreasonably failing to apply local rules, and amending its local rules without
providing notice or an opportunity for United Steelworkers TEMSA Local 12911 to demand
consultation over the amendment.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and confer with United Steelworkers TEMSA
Local 12911 as the recognized majority representative of the Hospital Unit.
2. 	Unilaterally creating new local rules without first giving notice to
recognized employee organizations and an opportunity for such organizations to demand
consultation.
3. 	Interfering with the right of bargaining unit employees to be represented
by an employee organization.
4. 	Denying United Steelworkers TEMSA Local 12911 its right to represent
employees in their employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Upon demand by United Steelworkers TEMSA Local 12911, and
continuing for a period of no less than six months from commencement, meet and confer in
good faith with United Steelworkers TEMSA Local 12911 as the recognized majority
representative of the Hospital Unit;
2. 	Process any and all future decertification petitions in the manner dictated
by the local rules, which, absent a lawful modification includes:
a. 	submitting the proof of support accompanying any such petition
to the California State Mediation and Conciliation Service for verification in accordance with
section 12(a)(4) of the Employee Relations Ordinance (ERO); and
b. 	permitting employees to retract signatures on a proof of support
for a decertification petition in accordance with ERO section 7(a)(6).
Oak Valley Hospital District
Dated: _____________________ 	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, DEFACED, ALTERED
OR COVERED WITH ANY OTHER MATERIAL.