Salinas Valley Memorial Healthcare System (PERB A387M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,
Employer,
and
NATIONAL UNION OF HEALTH CARE
WORKERS,
Petitioner,
and
SEID-UNITED HEALTHCARE WORKERS
WEST LOCAL 2005,
Exclusive Representative.
Case No. SF-DP-294-M
Administrative Appeal
PERB Order No. 	Ad-387-M
October 25, 2010
Appearances: 	Ottone Leach Olsen & Ray by Matthew W. Ottone, Attorney, for Salinas Valley
Memorial Healthcare System; Siegel & Le Witter by Latika Malkani, Attorney, for National
Union
of
Healthcare Workers; Weinberg, Roger & Rosenfeld by Leslie V. Freeman
and
Bruce A. Harland, Attorneys, for SEID-United Healthcare Workers West Local 2005.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by SEID-United Healthcare Workers West Local 2005
(SEIU)
of
a Regional Director's administrative determination (attached) on SEIU's objections
to the results
of
a decertification election. The objections alleged that the Salinas Valley
Memorial Healthcare System (SVMHS) interfered with employees' free choice in the election
by: 	(1) changing its access rules for non-employee SEIU representatives; (2) allowing a
management employee's photograph to be used on a flyer supporting the National Union of
Healthcare Workers (NUHW); and (3) discriminating against, retaliating against, and/or

interfering with the rights
of
several employees who supported SEIU. The Regional Director
dismissed SEIU's objections because they failed
to
establish that SVMHS's conduct interfered
with employees' free choice.
The Board has reviewed the administrative determination and the record in light
of
SEIU' s appeal, the responses
of
SVMHS and NUHW thereto, and the relevant law. 	Based on
this review, the Board finds the Regional Director's administrative determination to be well-
reasoned, adequately supported by the record, and in accordance with applicable law. The Board
therefore adopts the administrative determination
as
the decision
of
the Board itself, as
supplemented by the discussion below.
DISCUSSION
On March 15, 2010, SEIU filed an unfair practice charge (PERB Case No.
SF-CE-728-M) alleging that SVMHS changed its worksite access rules for non-employee
SEIU representatives after NUHW filed its decertification petition. On May 10, 2010, SEIU
amended its charge to also allege that SVMHS discriminated against, retaliated against, and/or
interfered with the rights
of
several employees who supported SEIU.
On May 26, 2010, SEIU filed objections to the results
of
the decertification election.
The facts alleged in support
of
the objections are identical to the allegations in SEIU's unfair
practice charge. SEIU contends on appeal that, because both filings contain the same
allegations, the objections should not have been dismissed while PERB's investigation
of
the
charge was still pending.
PERB has never addressed whether findings and conclusions in an election objection
decision 	any preclusive effect on identical allegations raised 	an 	practice
On this issue, the National Labor Relations Board (NLRB) has stated:
It is well settled that the Board's findings and conclusions with
respect to conduct alleged as objectionable in a representation
2

proceeding are not binding upon the Trial Examiner in a
subsequent hearing where such conduct is alleged as an unfair
labor practice, since the issues are different in the two types of
proceedings.
(Viking of Minneapolis (1968) 171 NLRB 1155, fn. 1.)
The NLRB' s approach appropriately recognizes the significant differences between
representation and unfair practice proceedings. In ruling on election objections, PERB must
determine whether "[t]he conduct complained of interfered with the employees' right to freely
choose a representative." (PERB Reg. 61150(c)(l).)1 Under this standard, PERB may refuse
to set aside an election even when the employer's conduct constituted an unfair practice if the
conduct did not actually affect, or have a natural or probable effect on, employee free choice.
(Sierra Sands Unified School District (1993) PERB Decision No. 977; State of California
(Departments of Personnel Administration, Developmental Services, and Mental Health)
(1986) PERB Decision No. 601-S.) On the other hand, the employer's conduct need not
constitute an unfair practice for PERB to set aside an election. (State of California
(Department of Personnel Administration) (1992) PERB Decision No. 948-S.) Thus, although
they often arise from the same facts, the issues to be decided in an election objections
proceeding are different from the issues decided in an unfair practice proceeding.
Here, the Regional Director did not address whether SVMHS' alleged conduct
constituted an unfair practice under applicable PERB standards. Rather, she determined that
none of the alleged conduct actually influenced, or had the potential to influence, employee
free choice in the decertification election. Therefore, the initial determination of whether the
1 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. While this regulation only applies to objections to an election conducted by
PERB pursuant to the Meyers-Milias-Brown Act (MMBA),* PERB regulations contain
identical provisions for election objections under the other collective bargaining statutes
administered by PERB. (*The MMBA is codified at Government Code section 3500 et seq.)
3

conduct alleged in SEIU's charge establishes a prima facie case of an unfair practice has been
left to the Board agent investigating the charge. As a result, this decision has no preclusive
effect on the pending unfair practice charge in Case No. SF-CE-728-M.
ORDER
The objections by SEID-United Healthcare Workers West Local 2005 to the election in
Case No. SF-DP-294-M are hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,
Employer,
and
NATIONAL UNION OF HEALTHCARE
WORKERS,
Petitioner,
and
SEID-UNITED HEALTHCARE WORKERS
WEST,
Exclusive Representative.
REPRESENTATION
CASE NO. SF-DP-294-M
AD~,1INISTRATIVE
DETERMINATION
July 27, 2010
Appearances: Ottone Leach Olsen & Ray, by Anne Frassetto Olsen, on behalf
of
Salinas
Valley Memorial Healthcare System; Siegel & LeWitter, by Latika Malkani, on behalf
of
National Union
of
Healthcare Workers; Weinberg, Roger & Rosenfeld, by Bruce A. Harland
and Leslie V. Freeman, on behalf
of
SEID-United Healthcare Workers West.
Before Anita
I.
Martinez, Regional Director.
This decision addresses election objections filed with the Public Employment Relations
Board (PERB or Board) by SEID-United Healthcare Workers West (SEIU) pursuant to PERB
Regulation 61150. 1 Objections filed against the Salinas Valley Memorial Healthcare System
1 PERB regulations are codified at California Code
of
Regulations, Title 8, section
31001 et seq. PERB regulation 6115 0 provides in pertinent part:
(c) Objections shall be entertained by the Board only on the
following grounds:
(1) The conduct complained of interfered with the employees'
right to freely choose a representative, or
(2) Serious irregularity in the conduct of the election.

(SVMHS or Hospital)2 allege that: (1) SVMHS failed and refused to recognize SEIU as the
employees' exclusive representative once the decertification petition was filed; (2) SVMHS
unilaterally changed SEIU's pre-existing access rights without giving prior notice or an
opportunity to bargain; (3) SVMHS violated its duty
of
strict neutrality by allowing a
management employee to appear on a National Union
of
Healthcare Workers' (NUHW) flyer
advocating support for NUHW; and (4) SVMHS interfered with, intimidated, restrained,
coerced, and discriminated against SEIU members because
of
the exercise
of
their rights under
Section 3502
of
the Meyers-Milias-Bown Act (MMBA).3
(d) The statement
of
the objections must contain specific facts
which,
if
true, would establish that the election result should be
set aside, and must also describe with specificity how the alleged
facts constitute objectionable conduct within the meaning
of
subsection (c) above.
(f) At the direction
of
the Board, facts alleged as supportive
of
the election conduct objected to shall be supported by
declarations. Such declarations must be within the personal
knowledge
of
the declarant, or must otherwise be admissible in a
PERB election objections hearing. The declarations shall specify
the details
of
each occurrence; identify the person(s) alleged to
have engaged in the allegedly objectionable conduct; state their
relationship to the parties; state where and when the allegedly
objectionable conduct occurred; and give a detailed description
of
the allegedly objectionable conduct. All declarations shall state
the date and piace
of
execution and shall be signed by the
declarant and certified by him or her to be true under penalty
of
perJury.
(g) The Board agent shall dismiss objections that fail to satisfy
the requirements
of
subsections (a) through (d). The objecting
party may appeal the dismissal to the Board itself in accordance
with Chapter 1, Subchapter 4, Article 3
of
these regulations.
2 An objection that PERB had engaged in serious irregularity in the conduct
of the
election because it failed to impound the ballots, despite pending unfair practice charges
against SVMHS, was withdrawn by SEIU on June 21, 2010.
3 Unless otherwise indicated, all statutory references are to the Government Code. The
MMBA is codified at Government Code section 3500 et seq.
2

SEIU alleges that all
of
the foregoing conduct interfered with employees' right to freely
choose a representative. Based upon its objections, SEIU urges that the election results be
voided and that no new election be conducted until the unfair practice charges are brought to a
conclusion and appropriate remedial actions are taken. Alternatively, SEIU requests that the
election results be voided and a new election scheduled after an appropriate hiatus. For the
reasons discussed below, the objections to the election filed by SEIU are hereby dismissed.
PROCEDURAL HISTORY
On December 23, 2009, NUHW filed a decertification petition seeking to represent
SVMHS employees currently represented by SEIU.4 On January 5, 2010,5 SVMHS confirmed
in writing to PERB that the Ordinance adopted by the District's Board
of
Directors pursuant to
Section 3507 (Resolution No. 92-02) did not apply to petitions for decertification.6
On January 7, PERB provided both SVMHS and SEIU an opportunity to confirm or
refute information contained in the petition and to set forth any other pertinent facts or issues
to be addressed during the investigation
of
the petition. In response, SVMHS confirmed on
January 13, that there were 868 employees in the bargaining unit and that the Memorandum
of
Understanding (MOU) between SVMHS and SEIU had effective dates
of
August 14, 2006 -
August
8,
2010.
4 The unit was titled "Technical, Service and Maintenance, and Clerical" in the Consent
Election Agreement and includes classifications within the following major groupings:
Dietary; Environmental Services and Laundry; Materials Management; Nursing and Surgery;
Surgical Sterile Processing; Rehabilitation Services; Cardiology; Radiology, Pharmacy;
Clerical; and Respiratory Therapy.
5 All dates refer to calendar year 20
IO
unless otherwise noted.
6 As SVMHS does not have local rules regarding decertification petitions, PERB has
authority to process the instant decertification petition. 	(MMBA section 3509, subdivision (b);
PERB Regulation 61000.)
3

After requesting and receiving an extension oftime, SEIU filed its position statement
on January 25. SEIU disputed the number of unit employees provided by SVMHS, alleging
the correct number to be as many as 1000 employees. It also maintained that the MOU served
as a contract bar to the decertification petition and declared that it would, upon request,
provide authority to substantiate these positions. 	SEIU' s statement in support of its position
was filed with PERB on February 2.
SMVHS and NUHW filed responses to SEIU's opposition to the decertification petition
on February 17 and February 22, respectively. In short, both parties disputed each of SEIU's
contentions. Before these issues could be decided by PERB, the parties agreed to discuss the
conduct of an election. A conference call was conducted by PERB on March 15, during which
the terms of a Consent Election Agreement (CEA) were discussed and agreed upon by the
parties. The CEA was approved by PERB on March 18. The CEA provided that ballots: (1)
would be mailed to employees' home addresses on April 22; (2) were due back at PERB no
later than May 13; and (3) would be counted on May 17 at the PERB Oakland office. PERB
prepared notices of the election which were to be posted by SVMHS conspicuously on
employee bulletin boards no later than April 12.
On May 17, PERB counted all timely received ballots and issued a tally of ballots. The
tally reflected the following totals: SEIU -- 242; NUHW - 408; No Representation 13; and
three challenged ballots. Since NUHW garnered a majority of the valid ballots cast and the
number of chailenged ballots would not have affected the results of the election, NUHW was
declared the winner.
On May 26, SEIU timely filed objections pursuant to PERB Regulation 61150.
SVMHS and NUHW were afforded an opportunity by PERB to respond to the objections by
close of business on June 16. After requesting and receiving extensions of time, SVMHS and
4

NUHW filed their responses on June
21
and June 22, respectively. 	SEIU filed additional
documentation in support
of
its objections on June 21.
FINDINGS OF FACT
SEIU and NUHW are employee organizations within the meaning
of
MMBA section
350l(b). SVMHS is a public agency within the meaning
of
MMBA section 3501(c). The
Hospital includes a main campus and has some departments housed in several buildings near
the main campus,
SVMHS' Post-Petition Conduct Towards SEIU
On December 28, 2009, Lauren Sullivan (Sullivan) introduced herself to Ann Kem
(Kern), Executive Administrative Director
of
Human Resources, and Michelle
B.
Childs
(Childs), Assistant Director
of
Human Resources, as the new authorized non-employee
representative for SEIU. A letter dated December 24, 2009, from Dave Regan (Regan),
Trustee
of
SEIU, confirmed this appointment and also removed two hospital employees as
SEIU Chief Shop Stewards. 	Subsequently, in a letter dated January
5,
Regan informed Kem
that another
18
employee shop stewards had been removed as authorized representatives. 	Kem
accepted the changes and advised administrative executives, department heads and
administrative supervisors about this information.
Kem had all locks to SEIU bulletin boards changed and gave the new keys to SEIU's
designated representatives. From January 16 through March 22, Kem received from and/or
sent
55
e-mail messages to SEIU representatives. During this same period, Kem had at least
25 meetings with SEIU representatives concerning employee issues, and was in almost daily
telephone contact with SEIU representatives.
Since January 1, SEIU has filed 21 grievances. For each grievance, Kern has met
and/or discussed their disposition with SEIU representatives. 	Seventeen of the grievances have
5

been resolved and SEIU has moved four to arbitration. When contacted by Sullivan or another
SEIU representative regarding access to employees, Kern authorized appropriate access sites
and informed appropriate hospital personnel and departments. Kern authorized release of
employee work schedules to SEIU representatives and authorized access to off-site locations in
the Accounting, Business Services and Education departments for SEIU meetings. 	When
SEIU requested access to pharmacy employees, Kern arranged for them to meet in the
pharmacy lobby during employee meal periods and breaks. Kern sent e-mail messages to all
Hospital management employees on January 8 to inform them of the filing of the petition and
their obligation to remain neutral. In addition, Kern gave Sullivan her home and cell numbers
in order to be accessible to her, even when Kern was not physically at the Hospital.
SVMHS' Access Policy
Article 26 Union Representative of the MOU provides in pertinent part:
A. 	The business representative of the Union shall be
permitted to enter the institution while it is in operation to see
that the provisions of this Agreement are being observed, after
first having reported to the appropriate representative of
President/Chief Executive Officer or designee, and provided this
is done at reasonable times and there is no interference with
Hospital routine, performance of employee duties or Hospital
activities and operations.
The events in question occurred between approximately December 24, 2009, through
March 16, during the unions' respective election campaigns.
Prior to the filing of the decertification petition, SEIU representatives would contact the
Human Resources department before obtaining access to the Hospital. 	SEIU representatives
would enter the Hospital for scheduled labor/management and disciplinary meetings, usually
held in the Hospital's Human Resources office or the particular manager's office in the case of
disciplinary meetings. SEIU representatives would occasionally contact administration or
human resources management to arrange meetings with an employee(s) in a specific
6

(
department for a specific purpose.
	If
requested, management personnel would facilitate
arrangements for a conference or meeting room to provide privacy. Upon meeting Sullivan,
Childs informed her that SEIU representatives were allowed to meet with employees during
their meal and rest periods in the public areas
of
the Hospital, but could not access patient care
areas.
SVMHS does not allow members
of
the public access to patient care areas, including
representatives
of
the unions (SEIU, California Nurses Association and Operating Engineers
Local 39) that represent its employees. Employee break rooms are small and are primarily
located in patient care areas. They are used by all employees, including supervisors and
managers, as additional work areas for discussion
of
patient health information, as well as for
breaks.7
Denial
of
access to break rooms and corridors in patient care areas to the public protects
the confidentiality
of
patient care information. 8 Since at least 1993 (and possibly as far back
as 1976), no union representative, including SEIU representatives, appears to have been
granted access by SVMHS to any break room in order to conduct union-related business. No
union, including SEIU, has filed a complaint or grievance challenging the Hospital's past
practice
of
denying it access to employee break rooms.
Prior to the filing
of
the decertification petition, SEIU representatives used the public
areas
of
the Hospital such as lobbies, Starbucks or the cafeteria in order to administer its MOU,
or arranged for the use of conference or meeting rooms as mentioned above. After the filing of
the petition, SEIU had many new and different representatives visiting the Hospital. In
7 The Nutritional Services and Environmental Services departments do not have any
break rooms and instead use the cafeteria for all breaks and meal periods.
8 SVMHS is legally required under both federal and state law to assure the
confidentiality of patient care information.
7

response to the petition and the many new representatives for both unions, Bev Ranzenberger
(Ranzenberger), Senior Vice President/Operations for SVMHS, advised SEIU and NUHW that
they could have equal access to the cafeteria, Starbucks and other areas open to the public but
they could not access non-public areas for solicitation purposes. A memorandum containing
this information was sent to managers, supervisors and department managers on December 28,
2009. Meeting rooms were arranged in the Business Services, Accounting and Education
departments since they are not located in patient care areas and these employees do not use the
cafeteria for their breaks.
Finally, there are other locations within SVMHS where employees gather for different
purposes. The back office of the Wound Care Center is a small space that seats a maximum of
six people. Physicians regularly use the room for dictation and documentation, staff education,
educational reference storage, equipment storage and staff breaks. The room is also used on a
daily basis by other personnel. At the Comprehensive Cancer center there is a small meeting
room located near the nurses' station which seats approximately seven people. The room is
used on a regular basis for staff reports, educational classes, staff meetings and breaks by
employees. The Respiratory Care department does not have a separate break room. While not
private, a portion of a work room is utilized as a break area. 	Since discussion of patient cases
and confidential patient information occurs in these locations, the public is not allowed access
to them. At Level II (Stepdown Unit), a room directly off the Level II nurses' station can seat
eight people and contains a locked bulletin board for posting of information. The room is used
on a daily basis by employees for reports, educational sessions, staff meetings and breaks. At
the Heart Center, a small meeting room seating four to five people is centrally located behind
the nurses' station. The room is used for shift reports, educational sessions, exchange of
confidential patient information and employee breaks. The NICU and Pediatrics departments
8

each has a meeting room, the first seating five or six people and the second seating nine or ten
people. The NICU room is used on a regular basis for reports, educational sessions and change
of shift reports. 	The room in Pediatrics is used for reports and discharge rounds, along with
breaks. In the Ortho Neuro Spine department, a small room with a table seats three people and
a sn:rnll love seat seats t'wo. The room is used for charge nurse shift-to-shift handover,
discussion of confidential patient information among staff and/or with physicians, brief in--
services and PCC education, employee breaks, and discussion of patient care during the Joint
Commission surveys. None of these eight rooms was accessed by union representatives prior
to the filing of the petition.
On January 25, Childs was contacted by Brenda Dumpit (Dumpit), a Hospital Business
Office supervisor, regarding SEIU representative Sue Madaus'(Madaus) request for access to
the break room. Madaus was not given permission to use the room to meet with employees but
was given permission to access the SEIU bulletin board located within it.
Alleged Violation of Strict Neutrality
Deborah Carpenter (Carpenter) is a registered nurse at SVMHS. 	She has been a long
time shop steward (23 years) for the California Nurses Association (CNA), the exclusive
representative for registered nurses, and has also served as a member of the CNA bargaining
committee. 	Carpenter is not a SVMHS management employee. 	Carpenter's photograph and
the following statement appeared in a NUHW flyer:
I personally think it would be a huge mistake if my coworkers
voted in SEIU-UHW. Vote NUHW.
9

Interference and Discrimination Allegations
1.
	Jim Stogner (Stogner)
Stogner is a per diem9 surgery attendant with the least amount
of
seniority in his
classification. Under Article
13
of
the MOU, a per diem employee can petition to have his/her
status changed from per diem to a benefited position. The change is based upon the number
of
hours worked during thirteen consecutive pay periods
if
the hours meet certain criteria. All
requests for reclassification are reviewed and decided by the Human Resources department.
On January
18,
Stogner attended a disciplinary meeting with Sullivan and Candace
Samudio (Samudio), Senior Administrative Director for Surgical Services, concerning two co-
workers. 	In her declaration, Sullivan states that Stogner was there as a SEIU steward and
vigorously advocated in favor
of
the employees. 10
Stogner was also featured on a flyer in
support
of
SEIU that was widely distributed throughout the Hospital.
On February
5,
Stogner filed to be reclassified as a part-time benefited employee. 	On
March 3, Kern informed Stogner that he did not meet the necessary criteria. Stogner did not
follow up with the Human Resources department, nor did he file a grievance regarding the
denial
of
his request.
In 2010, SVMHS has experienced a decline in the number
of
surgeries. In February,
SVMHS modified the employees'work schedule to reflect the decrease in volume and need in
the department, resulting in fewer work hours for employees. On April 12, 15, 19, 22, and 26,
Per diem employees do not receive benefits.
10 Samudio's declaration states the following: 	(1) the meeting concerned one
employee; (2) Sullivan informed Samudio that Stogner was in training to become a shop
steward and was there to observe; and (3) Stogner quietly observed the meeting and asked
clarifying questions.

and May 3 and 12, Stogner was offered the opportunity to work additional shifts, but in each
instance he declined the offer.
2.
	Unnamed employee
On February 17, an unidentified SEID member was prevented from obtaining a copy
of
the MOU from Goka because Margaret Sanders (Sanders), Director
of
Level 2, denied Goka
access to the Level 2 break room.
3.
	Two SEIU members in Surgery Break Room
On February 18, two unidentified SEID members were speaking to Sullivan in the
Surgery break room. 	They told Sullivan they were uncomfortable talking to her in the break
room. 
4.
	Antonio Rodriguez (Rodriguez)
On March 4, Vivian Waters (Waters), Administrative Supervisor, observed Rodriguez
and Contreras conversing while Rodriguez was on duty in front
of
a patient's room. Waters
reminded Contreras about the union's notification requirement, access limitations and the
appropriate times to contact employees.
5.
	Angie Fernandez (Fernandez)
Fernandez has been employed as a computer clerk in the Cardiology department for
nine years and is an SEID member. The department maintains a board on which employees
indicate when they leave for rest or meal periods. Employees take thirty minutes for lunch and
fifteen minutes for breaks. 	On March 16, an issue arose as to whether Fernandez had signed
out for her lunch break and whether she had exceeded her break time. Fernandez was not
disciplined for either incident.
11

6.
	Zedrick Zapata (Zapata)
Zapata is a patient transporter and an SEIU Contract Action Team member. 	Zapata
filed a grievance on February 22 alleging that he was not contacted for work on February 12.
The telephone number the Hospital had on file for him was no longer correct. The grievance
was settled on March 29 with SVMHS agreeing (on a non-precedent setting basis) to pay
Zapata for the eight hours
of
work that he missed, with a reminder that he was responsible for
updating his contact information.
On March 16, Andrea Huston (Huston), assistant head nurse for the Float
Pool/Transport department and Zapata's supervisor, met with Zapata after he overstayed his
15
minute break in the cafeteria.
11
After checking the Medi-tech tracking system which tracks
patients assigned to transporters, Huston learned that Zapata had been called for a transport and
should not have been in the cafeteria. Huston decided to "coach"12 him again concerning his
work performance, so that he would have clear direction on how and when to take breaks.
Huston prepared a Transport Goal Action Form and assured Zapata that he was not being
disciplined. 	Zapata refused to sign the form.
13
Huston had never observed Zapata conferring
with a union representative, including Sullivan on March 16.
1 Huston previously had several meetings with Zapata concerning his work
performance.
12
Coaching is a process utilized by SVMHS to help employees when work-related
problems arise prior to commencing any disciplinary process. Huston had previously coached
Zapata on September 24, 2009 regarding several issues and prepared a coaching document
titled "Transport Goal Action Form" for his review and record. Zapata refused to sign the
form. 
13
Huston's declaration states that Zapata did not request a union representative.
Zapata's declaration states that he asked for representation. This discrepancy is not a material
one for purposes of addressing the objections herein.
12

SEIU's Objections
1.
	SVMHS' Alleged Failure and Refusal to Recognize SEIU
SEIU contends that the Hospital failed and refused to recognize it as the employees'
exclusive representative by imposing access restrictions and denying its representatives access
to the facility necessary for them to enforce the terms
of
the MOU.
2.
	SVMHS' Alleged Change
of
Access Rights
Commencing on December 27, 2009, SEIU asserts that SVMHS denied it access to
enforce the terms
of
the MOU. 	SEIU alleges that:
(a) 	Sullivan was told by Childs that her access would be restricted to the public
areas
of
the Hospital, including lobbies, the cafeteria and Starbucks;
(b) 	On December 31, 2009, Sullivan was told by Ranzenberger that she could not
"solicit" in the Hospital and that she could set up tables in the cafeteria;
(c) 	On or about January 25, Madaus was denied access to an employee break room;
(d) 	On or about February 8 and
9,
SEIU Representative Robin Goka (Goka) was
denied access to the Respiratory Department break room;
(e) 	On or about February 17, Goka accessed the Level 2 break room in order to
deliver a copy
of
the MOU to an employee who had requested it. 	Goka was confronted by a
management employee, told to leave and asked the name
of
the employee, whom she declined
to name;
(f) 	On or about February 18, Sullivan accessed the Surgery break room. After
speaking with two employees, Sullivan was confronted by a supervisory employee and told
that pursuant to an e-mail message from Kem, Sullivan was not allowed to access the
room;
13

(g) 	On or about February 19, Contreras was conducting SEIU business on the third
floor when she was confronted by nurse Kim Allered, who demanded that she leave the floor;
(h) 	On or about February 20, Goka was conducting SEIU business in the break
room of the 4th/5th Towers and instructed to leave by Nursing Supervisor Amy Benano
(Benano);
(i) 	On or about March 4, Contreras was speaking with Rodriguez who had
requested to speak with her. Contreras was confronted by Walters who instructed her to not
access the floors and to speak with employees only in the cafeteria or the lobby when they are
on break.
3. 	SVMHS' Alleged Violation of its Duty of Strict Neutrality
SEIU claims that Carpenter is an agent and representative of SVMHS and that as a
member of management, she appeared on a NUHW flyer supporting NUHW.
4. 	SVMHS' Alleged Unlawful Actions Against SEIU Members
SEIU asserts that starting in January, SVMHS intimated, restrained, coerced and
discriminated against employees as follows:
(a) 	Stogner was regularly scheduled approximately .5 FTE until he became a
steward and actively involved in the election campaign. 	Stogner was denied a benefited
position and had his hours reduced after he participated in a discussion regarding two co-
workers with Samudio and Sullivan on January 18 and featured on a flyer supporting SEIU;
(b) 	An unidentified SEIU member was prevented from obtaining a copy of the
MOU from Goka on February 17;
(c) 	Two unidentified SEIU members informed Sullivan on February 18 that they
were uncomfortable speaking with her in the Surgery break room;
14

(d) 	Rodriguez was prevented from discussing his concern with Contreras on or
about March 4;
(e) 	Fernandez had her meeting in the cafeteria with Sullivan interrupted by
her
supervisor when she was told to end her lunch break; and
(f) 	Zapata was warned
of
possible discipiine by his supervisor and asked to sign a
"coaching" document after he was seen speaking with Sullivan in a hallway.
POSITIONS OF THE PARTIES
SEIU argues that SVMHS engaged in the unlawful misconduct summarized above and
that such conduct had a natural and probable impact
of
discouraging employee support for
SEIU in the election. SEIU maintains that SVMHS repeatedly denied the union its
collectively bargained access rights, thereby suggesting to employees that the Hospital was in
control and able to deny SEIU its rights and raising doubt over SEIU's ability to represent
employees. 	SEIU also charges that SVMHS interfered with, intimidated, restrained, coerced,
and discriminated against union activists. SEIU asserts that these actions by the Hospital
contributed to a widespread perception that support
of
SEIU would incur management's wrath
and result in discrimination and retaliation from the Hospitai.
NUHW contends that SEIU's objections either cannot be proven or fail to allege
specific conduct that had the natural and probable effect
of
affecting employee free choice. It
urges that the objections be administratively dismissed and that NUHW be certified as the
exclusive representative
of
the bargaining unit.
SVMHS asserts that SEIU has failed to establish facts sufficient to overturn the
election. SVMHS states that: (1) it continued to recognize SEIU as the exclusive
representative for the bargaining unit members after the filing of the petition; (2) it did not
change SEIU's access rights; (3) Deborah Carpenter is not a management employee; and (4) it
15

did not interfere with, intimidate, restrain, coerce or discriminate against bargaining
unit
members because
of
their support for SEIU. Therefore, the Hospital requests that the
objections be administratively dismissed.
DISCUSSION
Pursuant to PERB Regulation 61150( c), objections to the conduct
of
an election are
entertained
by
PERB on only two grounds:
(1) The conduct complained
of
interfered with the employees'
right to freely choose a representative, or
(2) Serious irregularity in the conduct
of
the election.
PERB Regulation 61150(d) mandates that: .
The statement
of
the objections must contain specific facts which,
if
true, would establish that the election result should be set aside,
and must also describe with specificity how the alleged facts
constitute objectionable conduct within the meaning
of
subsection (c) above.
(Emphasis added.) Finally, PERB Regulation 61150(£) provides that:
At the direction
of
the Board, facts alleged as supportive
of
the
election conduct objected to shall be supported by declarations.
Such declarations must be within the personal knowledge
of
the
declarant, or must otherwise be admissible in a PERB election
objections hearing. 	The declarations shall specify the details
of
each occurrence,· identify the person(s) alleged to have engaged in
the allegedly objectionable conduct; state their relationship to the
parties; state where and when the allegedly objectionable conduct
occurred; and give a detailed description
of
the allegedly
objectionable conduct.
(Emphasis added.)
PERB regulations require the Board agent to dismiss election objections that do not
"satisfy the requirements
of
subsections (a) through (d)"
of
PERB Regulation 61150. Even if
not subject to dismissal under PERB Regulation 6115 0, objections are to be dismissed by the
Board agent if, after investigation, the objections "do not warrant setting aside the election."
16

(PERB Regulation 61155(£).) Alternatively, the Board agent may set aside the election if the
results of the investigation warrant such action. (PERB Regulation 61155(g).) Where
substantial and material factual disputes exist, a Board agent may schedule a hearing. 	(PERB
Regulation 61155(h); Los Angeles Unified School District (1993) PERB Decision No. Ad-
250.)
A party objecting to an election result must first present a prima facie showing of
conduct that constitutes one or both of the two grounds set forth in PERB Regulation 61150(c).
This includes a factual showing that employee choice was affected or that the conduct
complained of had the natural and probable effect of affecting employee choice. (Pasadena
Unified School District (1985) PERB Decision No. 530; Jefferson Elementary School District
(1981) PERB Decision No.164 (Jefferson); San Ramon Valley Unified School District (1979)
PERB Decision No.111 (San Ramon); Santa Monica Unified School District and Community
College District (1978) PERB Decision No. 52.)14 The determination of probable impact is
made based on consideration of the facts submitted by the objecting party, which may include,
for example, the number, nature and timing of the improper acts, and the number of employees
affected by or aware of the acts. (Pleasant Valley Elementary School District (2004) PERB
Order No. Ad-333.)
If this threshold showing is made, PERB will assess "the totality of circumstances ...
and, when appropriate, the cumulative effect of the conduct which forms the basis for the relief
requested." (Clovis Unified School District (1984) PERB Decision No.389 (Clovis); State of
California (Departments of Personnel Administration, Developmental Services, and Mental
14 PERB looks for guidance, inter alia, to federal labor law decisions, including
National Labor Relations Board (NLRB) precedent, in election objections cases. (See, e.g.,
State a/California (1982) PERB Decision No. 198-S.)
17

Health) (1986) PERB Decision No. 601-S (State a/California).) Unlike the NLRB, PERB has
long declined to adopt a per se rule.
PERB regulations and legal standards exist to ensure that elections are conducted
without undue interference from parties, but also to ensure that employees' votes are not
uru1ecessarily set aside. (State of California (Department of Personnel Administration) (1992)
PERB Decision No. 948-S.) Election objection cases involve a balancing of competing
interests, and therefore PERB must weigh whether alleged misconduct was sufficient to affect
the outcome. For improper conduct to warrant setting aside the results of an election, the
moving party has the burden of proving that the conduct had a prejudicial impact on
employees' ability to freely choose their collective bargaining representative. (Clovis, supra,
PERB Decision No. 389.)
In Clovis, supra, PERB Decision No. 389, the Board upheld the decision of an
administrative law judge (ALJ) ordering that an election be rerun. In that case, the ALJ found
that the employer showed favoritism toward the Faculty Senate in preference to the
challenging union by eliminating a required workday (grant of benefits), threatening a union
organizer, and making a captive audience speech within 24 hours of the election. Taken
collectively, these actions were more than adequate to establish a probable impact on the vote
under Jefferson, supra, PERB Decision No. 164. As the Clovis Board stated:
Most egregiously, by meeting and conferring exclusively with the
Faculty Senate about the Saturday workday, then eliminating that
required work day, long a matter of keen employee interest, the
District clearly encouraged employees to stay with the Senate and
reject the Association. Then, if any employee had missed the
point, the District expressly credited the Senate with having
eliminated the Saturday workday - both in a mandatory meeting
ten days before the election and in a mailing to teachers two
weeks before the election. Finally, the morning of the election,
Principal Frugman conducted a mandatory faculty meeting in
which he urged the teachers to vote for no representation.
18

We find it highly probable that this entire course
of
conduct
interfered with employees' opportunity to exercise free choice in
the election.
In San Ramon, supra, PERB Decision No. 111, the Board overturned an ALJ's decision
and ordered that an election be rerun. The Board there held that the employee organization had
satisfied its burden
of
proving probable impact on the vote where the employer's conduct was
"intimately related to the election itself." (Ibid.) In that case, the employer had initially agreed
to a training session to be held on the day
of
the election, because otherwise the employees in
the unit would have had to come in to vote on a non-work day. 	Shortly before the election, the
training session was cancelled, and this action was found by the Board to sustain a charge
of
bargaining in bad faith. 	(Ibid.) The Board further held:
Thus, where the training session was inexorably linked to the
election itself, where the apparent acquiescence and delay in
cancellation caused confusion and discord which remained
throughout the election proceedings, and where the results
of
the
election were such that the margin by which the organizational
security clause was defeated was so narrow, the Board finds it
sufficiently likely that the objectionable conduct did influence the
vote so that it cannot be said with assurance that the employees
would have voted as they did absent the influence caused by the
employer's unlawful conduct.
(Ibid.; citation omitted.)
Both Clovis and San Ramon involved improper conduct by the employer that was in
close temporal proximity to the actual voting. In contrast, the Board in State
of
California,
supra, PERB Decision No. 601-S found that, even though the employer had committed several
unfair practices in the course of the election period, including: interference with and a
unilateral change in union access rights; unlawful support for one union in preference to
another; and interference with available bulletin board space, the wrongful conduct did not
have a probable impact on the vote. The Board noted that its conclusion may have been
different if the employer in that case had been a small school district with several hundred
19

employees in the bargaining unit. (Ibid.) However, because the bargaining unit included
several thousand employees in two large State departments, widespread impact throughout the
unit was not demonstrated. (Ibid.) The Board concluded:
There was no pervasive system-wide or hospital-wide anti-CWA
or pro-CAPT behavior. For the most part, the violations occurred
at low levels within the departmental administration and were not
reflective of any anti-CWA conduct by the Department of
Personnel Administration ....
The unilateral changes which occurred, while significant to the
organizers they affected, had no widespread impact throughout
the unit. For the most part, the unlawful practices were isolated
and minimal in their impact. On this record, there could be no
basis for setting aside the election result.
(Ibid.)
Likewise, in Sierra Sands Unified School District (1993) PERB Decision No. 977, the
Board upheld an ALJ' s refusal to set aside the results of an agency fee election, despite a
finding of improper conduct by the employer. In that case, the employer had committed an
unfair practice by denying access to employee mailboxes to distribute literature in opposition
to the imposition of agency fees by a group of opposed employees. Nevertheless, the Board
sustained the ALJ' s conclusion that such action by the employer did not likely impact the vote.
(Ibid.) The ALJ reasoned:
(Ibid.)
Mr. Roberts and members of the Concerned Teachers got some
leaflets into teacher mailboxes and distributed prior to when the
ban went into effect. They even had limited access to mailbmces
in some schools after the ban. They were permitted to use
District facilities for meetings and they were permitted to put
literature in teacher lounges. They successfully placed an article
explaining their position in a local newspaper. There is no
evidence that Concerned Teachers encountered any restrictions
upon personal solicitations of support from co-workers during
non-work periods. Under these circumstances, there is no
evidence that would establish a probable or actual impact upon
the election result.
20

It is against these standards that SEIU's objections must be considered.
Failure to Recognize SEIU as Exclusive Representative
PERB has stated that representation elections impose on the employer a special duty to
maintain strict neutrality without regard to the motive or intent
of
its actions. (Santa Monica
Community College District, (1979), PERB Decision No. 103.) 	Failure to uphold this
obligation may lead to PERB finding that the employer committed the unfair practice
of
encouraging employees to join or support one employee organization in preference to another.
In response to the filing
of
the decertification petition, SVMHS took several affirmative
actions to ensure that it complied with its obligations towards SEIU. As demonstrated by
Kern's declaration, the Hospital acknowledged the change in SEIU leadership arid informed its
administrative personnel
of
the same, reminded its management and administrative personnel
of
their obligation to remain neutral during the election campaign, changed locks on all SEIU
bulletin boards and gave the keys to the new SEID-designated representatives so that SEIU
could communicate with employees, and released employee work schedules to SEIU
representatives. 	SVMHS management personnel continued to communicate with SEIU
representatives to resolve issues, including the exchange
of
approximately 55 e-mail messages,
the conduct
of
25 meetings, and the resolution
of
17
of
21
grievances filed between January 16
and March 22 alone. Kern was in almost daily telephone contact with Sullivan, and gave
Sullivan her personal numbers in case she needed to reach her after hours or when not on site.
The Hospital also authorized and facilitated appropriate access sites, such as the pharmacy
lobby, when requested by SEIU and authorized access to departments located at off-site
locations.
All of these proactive actions can hardly be seen as indicative of the Hospital's failure
to deal with SEHJ as the incumbent employee organization, nor can they be touted as having
21

somehow affected employee free choice to the detriment
of
SEIU. (Pleasant Valley
Elementary School District, supra, PERB Order No. Ad-333.) SEIU has not refuted any
of
the
factual points from Kem' s declaration nor has SEIU advanced any other information
suggesting, through declarations under penalty
of
perjury, that SVMHS failed to recognize
SEIU as the exclusive representative. SEIU has therefore failed in its burden
of
proving that
the conduct by SVMHS had a prejudicial impact on employees' ability to freely choose their
representative. (Clovis, supra, PERB Decision No. 389.)
Access Issue
The MMBA grants employee organizations a right
of
access, subject to reasonable
regulation. (Omnitrans (2009) PERB Decision No. 2030-M.) The MMBA provides that
public agencies may adopt reasonable rules and regulations for, among other things, access
of
organization officers and representatives to work locations.
15
Employee organizations are
generally entitled to reasonable access to employees during employees' non-working time,
including before and after work arid during breaks and lunches, subject to advance notice to the
employer and provided that such access does not impede employees' performance
of
duties.
(California Department
of
Transportation (1981) PERB Decision No. 159b-S; Marin
Community College District (1980) PERB Decision No. 145; Long Beach Unified School
District (1980) PERB Decision No. 130; California Department
of
Corrections (1980) PERB
Decision No. 127-S.)
Access to employee work locations is subject to reasonable restrictions, particularly in
the hospital setting, where considerations of patient care, privacy and security have primacy.
(Regents
of
the University
of
California (2004) PERB Decision No. 1700-H; UCLA Medical
Center, (1983), PERB Decision No. 329-H.)
22
Government Code section 3507(a)(6).

Article 26
of
the SVMHS/SEIU MOU provides union representatives access while the
Hospital is in operation to be sure the provisions
of
the MOU are being observed, subject to
notice, reasonable time restrictions, and a requirement that access not interfere with "Hospital
routine, performance
of
employee duties or Hospital activities and operations." The past
practice
of
the parties, including the requirement for reporting their presence and restriction on
meeting locations, was consistent with these contractual requirements. Going back to 1993
if
not before, all unions representing Hospital personnel were prohibited from accessing patient
care areas, including break rooms and corridors in those areas. 	SEIU, and presumably other
unions, were allowed to meet in public areas, including lobbies, the cafeteria, and the on-site
Starbucks. None
of
SEIU' s nine allegations
of
access denials described above suggests
improper employer conduct. Five
of
the alleged access denials concerned SEIU efforts to
access break rooms which were inappropriate for union/employee meetings because
of
the
presence
of
other staff on breaks, ongoing work activities, and/or confidential records and
other information. Denial
of
access under these circumstances was not improper.
Moreover, under the parties' pre-petition practices, SEIU had never accessed any
of
the
rooms to which SEIU now claims it should have had access. Four
of
the alleged access
violations concerned SEIU efforts to access or solicit in patient care areas. As is the case with
respect to break rooms, discussed immediately above, none
of
these denials was improper.
Indeed, SEIU concedes that in three
of
these four incidents, the management representative
advised the SEIU representative of alternative locations (e.g., cafeteria, lobby, Starbucks)
where solicitations were permitted. Also noteworthy is the fact that SEIU has made no claim
of more favorable granting of access to NUHW by the Hospital.
SEIU's allegations regarding denial of access boil down to the assertion that the new
organizers hired to replace prior SEIU personnel were unaware of the access practices and
23

policies underlying the existing MOU, and therefore were not held to the terms
of
those
provisions or practices. As the Hospital properly points out, it would have been a violation
of
the Hospital's duty to maintain relative neutrality
if
the Hospital had modified its access
practices, in the face
of
the decertification petition, to favor SEIU. And in any event,
ignorance
of
the parties' past practice stemming from Article 26 is no excuse, and is certainly
no basis for claiming more beneficial access rights than SEIU had agreed to and lived by for so
many years.
Carpenter Issue
In her declaration, Carpenter states that she is not a SVMHS management employee
and serves as a union representative for the California Nurses Association. As an employee
and representative
of
another SVMHS union, Carpenter was free to express her opinion to
other employees. 	SEIU' s claim that Carpenter was an agent
of
SMVHS and illegally
advocated for NUHW is clearly misplaced. SEIU provides no facts
to
demonstrate that
Carpenter is a management employee. Therefore, this objection has no validity and is hereby
dismissed.
Issues as to Various Employees
Under the MMBA, it is unlawful to discriminate against, interfere with, threaten, or
take reprisals against employees because
of
their participation or non-participation in activities
of
employee organizations, including recruitment or organizational activities on behalf
of
a
union. (PERB Regulation 32603(a); County
of
San Joaquin (Health Care Services) (2003)
PERB Decision no. 1524-M.) However, even the probable existence
of
such illegal conduct
does not necessarily mean that an election that occurred close in time to the discriminatory
action must be overturned. 	Such conduct can result in overturning an election only if it is so
severe as to have had the natural and probable consequence of affecting employee choice.
24

(Santa Monica Unified School District and Community College District, supra, PERB
Decision No. 52; San Ramon, supra, PERB Decision No. 111; Jefferson, supra, PERB
Decision No. 164; Pasadena Unified School District, supra, PERB Decision No. 530.)
SEIU makes six allegations in support
of
its claim that SVMHS took unlawful action
against SEIU members/employees and argues that such actions warrant overturning the
election. Each
of
these allegations is addressed below.
First, SEIU alleges that Stogner was denied a benefited position and that his hours were
reduced as a result
of
his involvement in the election campaign, specifically, having a
discussion with management regarding one or two co-workers on January
18
and being
featured in a flyer supporting SEIU. The most junior per diem surgery attendant, Stogner
asked to have his status changed in order to receive benefits. When his request was denied, he
did not follow up with Human Resources (who made the decision), nor did he file a grievance
regarding the denial. While the specific reasons for denial are not part
of
the record (e.g., the
criteria that have to be met, how many hours Stogner had worked during the applicable thirteen
consecutive pay periods, how many hours he needed to qualify for the change), Stogner
apparently accepted the determination that his hours had not met the necessary criteria.
As mentioned above, the Hospital had experienced a decline in the number
of
surgeries
in 2010 resulting in fewer work hours for employees. 	Stogner' s stated desire to qualify to
become a benefited employee (as evidenced by his request for change in status) infuture
thirteen consecutive pay periods is undercut by the fact that SVMHS offered him additional
shifts seven times during the election period, and he declined each offer.
SEIU has made no showing that this isolated situation regarding Stogner had any
material affect on the election or employee free choice. Militating against that conclusion are
the facts that: (1) Stogner was not terminated but simply was not granted status as a benefited
25

position because he did not meet the necessary hours criteria; and (2) there is no evidence that
employees as a whole knew or were affected by this isolated action involving Stogner.
Second, SEIU alleges that an unnamed employee was prevented from obtaining a copy
of
the MOU from Goka on February
17
when Sanders denied access to the Level 2 break
room. Here the employer was simply enforcing its long standing policy to deny access to
break rooms. 	SEIU did not provide facts to demonstrate that the unnamed employee even
became aware
of
the exchange between Goka and Sanders or that other employees witnessed
the incident.
Third, SEIU alleges that two unnamed SEIU members told Sullivan that they were
uncomfortable speaking with her in the Surgery break room. This allegation appears to
describe a union representative attempting to engage employees in a work location where
meetings with union representatives were not allowed. Employee discomfort in this situation
does not suggest unlawful conduct by the employer, but rather employee sensitivity about
Hospital rules and the need for privacy in order to engage in the discussion.
Fourth, SEIU alleges that Waters illegally interrupted the conversation between
Rodriguez and Contreras while Rodriguez was on duty in front
of
a patient's room. The
supervisor, Waters, reminded Contreras about the notice requirement, access limitations, and
appropriate times to speak with employees. This appears to have been consistent with Hospital
policy and practice, including the MOU, and SEIU's objections do not suggest that the
employee was in any way affected
by
the alleged events.
Fifth, SEIU alleges that a supervisor illegally interrupted a meeting between an
employee (Fernandez) and union representative (Sullivan), and brought to the employee's
attention that her lunch period was over. There is no allegation that the employee was
disciplined or suffered any repercussions as a result of this event, nor that employee free
26

choice was adversely affected or that the conduct had the natural and probable effectof
affecting employee free choice.
Last, SEIU alleges that Zapata received a counseling memo after being seen talking to
Sullivan in a hallway. According to the employer's unrefuted declaration, Zapata was coached
as a result of overstaying his break in the cafeteria by 15 minutes, during a time when he had
been called to transport a patient. This isolated action appears to have been minor, corrective
in scope and justified by an appropriate business reason.
In sum, all of these allegations appear to largely cover matters which appear, from the
standpoint of participants in the election, to have been non-events. In each instance, the
allegedly affected employee(s) was a member and supporter of SEIU, not someone whose vote
might have been swayed against SEIU because of the employer's action. Each instance
involved a situation in which, seen in a light most favorable to SEIU, management made a
decision according to a set policy (process required to change status to a benefited employee,
issuance of coaching memos) or corrected an access violation perpetrated by SEIU. There is
no evidence that these events would affect employees who may have been on the fence about
which union to support, or that word of these isolated events spread through the bargaining
unit's rumor mill in a manner that undermined employee free choice. In any event, the facts
and allegations do not remotely support any inference that employee free choice was
compromised in this election.
CONCLUSION
Like the NLRB, PERB "goes to great lengths to ensure that the manner in which
elections are conducted raises no reasonable doubt as to their fairness or validity." (Gilroy
Unified School District (1991) PERB Order No. Ad-226, quoting Brink's Armored Car. Inc.
(1986) 278 NLRB 141; citations omitted.) Nevertheless, both PERB and the NLRB have long
27

recognized that an election need not be perfect to be fair. (County
of
Imperial (2007) PERB
Decision No. 1916-M; State
of
California (Departments
of
Personnel Administration,
Developmental Services, and Mental Health), supra, PERB Decision No. 601-S.) The conduct
by SVMHS alleged by SEIU was ·not
of
sufficient weight or seriousness to sustain the
objections, nor is it reasonable to infer that the conduct had any natural or probable impact on
employee choice.
Under the totality
of
circumstances raised and the cumulative effect
of
the conduct in
this case, the misconduct alleged against SVMHS does not rise to the level under PERB
precedent to disturb the results
of
this election. Therefore, for the reasons discussed above, the
objections to the election filed by SEIU pursuant to PERB Regulation 61150 are hereby
DISMISSED.
Right
of
Appeal
An appeal
of
this decision to the Board itself may be made within ten calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
filed, the original and five copies
of
any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, §§ 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 PERB Regulation 32135(d), provided the filing party also
28

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.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are .
appealed and must state the grounds for the appeal. (Cal. Code Regs., tit. 8, § 32360, subd.
(c).)
An
appeal will not automatically prevent the Board from proceeding in this case. 	A party
seeking a stay
of
any activity may file such a request with its administrative appeal, and must
include all pertinent facts and justifications for the request. (Cal. Code Regs., tit. 8, § 32370.)
If
a timely appeal is filed, any other party may file with the Board an original and five
copies
of
aresponse to the appeal within ten calendar days following the date
of
service
of
the
appeal. 	(Cal. Code Regs., tit. 8, § 32375.)
Service
All documents authorized to be filed herein must also be "served" upon all parties to
the proceeding and on the regional office. A "proof
of
service" must accompany each copy
of
a document served upon a party or filed with the Board itself. 	(See Cal. Code Regs., tit. 8, §
32140 for the required contents.) The document will be considered properly "served"
when
personally delivered, or when deposited in the mail or with a delivery service properly
addressed, or when sent by facsimile transmission in accordance with the requirements
of
California Code
of
Regulations, title 8, sections 32090 and 32135, subdivision (d).
Extension of Time
A request for an extension
of
time in which to file an appeal or opposition to an appeal
with 	Board itself must be in writing and filed with the Board at the previously noted
address. A request for an extension must be filed at least three calendar days beforethe
expiration of the time required for filing the document. 	The request must indicate good cause
29

for and, if known, the position of each other party regarding the extension, and shall be
accompanied by proof of service of the request upon each party. (Cal. Code Regs., tit. 8,
§ 32132.)
30
Anita I. Martinez
Regional Director