City of Fremont (PERB A403M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF FREMONT,
Employer,
and
GROUP OF EMPLOYEES,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Exclusive Representative.
Case No. SF-OS-199-M
PERB Order No. Ad-403-M
November 21, 2013
Debra S. Margolis, Assistant City Attorney, and Liebert, Cassidy & Whitmore
by Richard C. Bolanos, Attorney, for City
of
Fremont; Patricia Christianson for Group
of
Employees; Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Vincent A. Harrington,
Attorneys, for Service Employees International Union, Local 1021.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an administrative appeal by Service Employees International Union,
Local 1021 (SEIU) from an administrative decision issued by the Office
of
the General
Counsel to conduct an agency fee rescission election among employees
of
the general
bargaining unit in the City
of
Fremont (City). Along with its administrative appeal, SEIU filed
a request for stay
of
activity pursuant to PERB Regulation 32370 to stay the conduct
of
the
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF FREMONT,
Employer,
and
GROUP OF EMPLOYEES,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Exclusive Representative.
Case No. SF-OS-199-M
PERB Order No. Ad-403-M
November 21, 2013
Appearances:	Appearances: Debra S. Margolis, Assistant City Attorney, and Liebert, Cassidy & Whitmore
by Richard C. Bolanos, Attorney, for City of Fremont; Patricia Christianson for Group of
Employees; Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Vincent A. Harrington,
Attorneys, for Service Employees International Union, Local 1021.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an administrative appeal by Service Employees International Union,
Local 1021 (SEIU) from an administrative decision issued by the Office of the General
Counsel to conduct an agency fee rescission election among employees of the general
bargaining unit in the City of Fremont (City). Along with its administrative appeal, SEIU filed
a request for stay of activity pursuant to PERB Regulation 32370' t
1
o stay the conduct of the
1
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

election. SEIU also filed an interlocutory appeal from this same decision, in which
For reasons discussed below, we dismiss the interlocutory appeal and the request for a
stay
of
activity, and remand to the Office
of
the General Counsel the rescission petition for an
investigation
of
the facts and a determination
of
SEIU's claims that: (1) the Meyers-Milias-
prohibits a rescission election after a memorandum
of
understanding
PROCEDURAL HISTORY
On June 20, 2013, a group
of
employees in the City's general bargaining unit, led by
Patricia Christianson (Christianson), filed a petition to rescind the agency fee provision
included in the July 1, 2011 to June 30, 2013 MOU between the City and the "Fremont
Association
of
City Employees affiliated with Service Employees International Union (SEIU),
The MMBA is codified at Government Code section 3500 et seq. All further section
references are to the Government Code.
MMBA section 3502.5, subdivision (d) provides, in pertinent part:
An agency shop provision in a memorandum
of
understanding
that is in effect may be rescinded by a majority vote
of
all the
employees in the unit covered by the memorandum
ofunderstanding, provided that:
...
(3) the vote may be taken at any
time during the term
of
the memorandum of understanding, but in
no event shall there be more than one vote taken during that term.
There is a dispute over the identity of the exclusive representative which is at the
center of PERB Case No. SF-CE-1028-M, which is currently before the Board on exceptions to
a proposed decision by an administrative law judge. PERB has made no final determination on
rescission election. SEIU also filed an interlocutory appeal from this same decision, in which
the Office
of
the General Counsel joined.	the Office of the General Counsel joined.
For reasons discussed below, we dismiss the interlocutory appeal and the request for a
stay of activity, and remand to the Office of the General Counsel the rescission petition for an
investigation of the facts and a determination of SEIU's claims that: (1) the Meyers-Milias-
Brown Act (MMBA) 2
Brown Act (MMBA) prohibits a rescission election after a memorandum of understanding
(MOU) has expired; and (2) a rescission election cannot occur during the pendency
of
the
unfair practice charges filed by SEID against the City because those alleged unfair practices
prevent employees from exercising free and fair choice in a rescission election.
(MOU) has expired; and (2) a rescission election cannot occur during the pendency of the
unfair practice charges filed by SEIU against the City because those alleged unfair practices
prevent employees from exercising free and fair choice in a rescission election.
PROCEDURAL HISTORY
On June 20, 2013, a group of employees in the City's general bargaining unit, led by
Patricia Christianson (Christianson), filed a petition to rescind the agency fee provision
included in the July 1, 2011 to June 30, 2013 MOU between the City and the "Fremont
Association of City Employees affiliated with Service Employees International Union (SEIU),
Local 1021." (MOU,§
1, Parties to Understanding.)3 The petition listed as the exclusive
representative, the "Fremont Association
of
City Employees (FACE)."
Local 1021." (MOU, $ 1, Parties to Understanding.)' The petition listed as the exclusive
representative, the "Fremont Association of City Employees (FACE)."
2
2 The MMBA is codified at Government Code section 3500 et seq. All further section
references are to the Government Code.
MMBA section 3502.5, subdivision (d) provides, in pertinent part:
An agency shop provision in a memorandum of understanding
that is in effect may be rescinded by a majority vote of all the
employees in the unit covered by the memorandum of
understanding, provided that: . . . (3) the vote may be taken at any
time during the term of the memorandum of understanding, but in
no event shall there be more than one vote taken during that term.
3
There is a dispute over the identity of the exclusive representative which is at the
center of PERB Case No. SF-CE-1028-M, which is currently before the Board on exceptions to
a proposed decision by an administrative law judge. PERB has made no final determination on
22

June 26, 2013, the Office
of
the General Counsel sent Christianson a filing
deficiency letter because the description
of
the exclusive representative as "Fremont
Association
of
City Employees (FACE)" appeared to be inaccurate. In response to a petition
for injunctive relief filed by PERB on May 1, 2013, a superior court judge enjoined the City
of
Fremont, its agents and employees from failing or refusing to recognize SEIU, Local 1021 as
the exclusive representative of the general bargaining unit." Because the rescission petition
An amended petition was filed on July
1,
2013, naming as the exclusive representative
SEIU, Local 1021. On July 8, 2013, the Office
of
the General Counsel wrote to the interested
parties (Christianson, Brian Scott, the City's Human Resources Director, Kerianne
R.
Steele
(Steele), attorney for SEIU, and Roxanne Sanchez, president
of
SEIU), informing them that the
amended rescission petition had been filed alleging that a fair share agreement is currently in
effect for the general bargaining unit. By this letter, the Office
of
the General Counsel
requested the employer to file a list
of
all persons employed in the general bargaining unit as
of
the last date
of
the payroll period immediately preceding the date the amended petition was
filed with PERB. Both SEIU and the City were asked to file written statements within
10 calendar days regarding whether the City had a procedure for rescission
of
agency fee
provisions and to include "any other pertinent facts or issues which should be addressed during
PERB's investigation regarding the validity
of
this amended petition." (PERB ltr. dated July 8,
2013.)
the merits of Case No. SF-CE-1028-M, and no inferences should be drawn on that issue from
our decision in this case.
See City
of
Fremont (2013) PERB Decision No. IR-57-M, determining that injunctive
relief was appropriate in PERB Case No. SF-CE-1028-M.
3
the merits of Case No. SF-CE-1028-M, and no inferences should be drawn on that issue from
our decision in this case.
On June 26, 2013, the Office of the General Counsel sent Christianson a filing
deficiency letter because the description of the exclusive representative as "Fremont
Association of City Employees (FACE)" appeared to be inaccurate. In response to a petition
for injunctionelief filed by PERB on May 1, 2013, a superior court judge enjoined the City of
Fremont, its agents and employees from failing or refusing to recognize SEIU, Local 1021 as
the exclusive representative
of
the general bargaining unit. 4 Because the rescission petition
listed "FACE" as the exclusive representative, the Office
of
the General Counsel deemed the
petition deficient and gave Christianson until July 1, 2013, to file an amended petition.
listed "FACE" as the exclusive representative, the Office of the General Counsel deemed the
petition deficient and gave Christianson until July 1, 2013, to file an amended petition.
An amended petition was filed on July 1, 2013, naming as the exclusive representative
SEIU, Local 1021. On July 8, 2013, the Office of the General Counsel wrote to the interested
parties (Christianson, Brian Scott, the City's Human Resources Director, Kerianne R. Steele
(Steele), attorney for SEIU, and Roxanne Sanchez, president of SEIU), informing them that the
amended rescission petition had been filed alleging that a fair share agreement is currently in
effect for the general bargaining unit. By this letter, the Office of the General Counsel
requested the employer to file a list of all persons employed in the general bargaining unit as of
the last date of the payroll period immediately preceding the date the amended petition was
filed with PERB. Both SEIU and the City were asked to file written statements within
10 calendar days regarding whether the City had a procedure for rescission of agency fee
provisions and to include "any other pertinent facts or issues which should be addressed during
PERB's investigation regarding the validity of this amended petition." (PERB Itr. dated July 8,
2013.)
4
*See City of Fremont (2013) PERB Decision No. IR-57-M, determining that injuncti
relief was appropriate in PERB Case No. SF-CE-1028-M.
3

In response, the City confirmed on July 19, 2013, that it has no local rules or
procedures for the rescission
of
an agency shop provision, and noted that the MOU provided
that the agency shop provision "may be rescinded by majority vote
of
all employees in the
bargaining unit in the manner provided in Government Code 3502.S(b)."5 A list
of
bargaining
unit employees was included in the City's response.
SEIU submitted its position statement on July 24, 2013, and urged that the rescission
petition be dismissed for two reasons. First, SEIU asserted that the petition "is the direct
product
of
the City's unlawful conduct that is the subject
of
the pending unfair practice
case-
PERB Case No. SF-CE-1028-M." In support
of
this contention, SEIU purported to
"incorporate by reference herein all facts, arguments and legal authorities contained in the
filings in Case No. SF-CE-1028-M and in Injunctive Relief Case No. 633-M." It asserts that,
but for the City's alleged improper processing
of
a decertification petition in January 2013, its
alleged unlawful withdrawal
of
recognition from SEIU, and its alleged subsequent refusal to
bargain with SEIU, 6 the rescission petition would not have been filed. SEIU also represented
that
if
PERB "continues to process this tainted rescission petition, SEIU Local 1021 may
consider submitting a renewed request for injunctive relief with PERB and/or a request for an
amended preliminary injunction against the City."
SEIU also asserted in its position statement that the rescission petition was untimely
because under MMBA section 3502.5, subdivision (d), a rescission election may only occur
during the life
of
an MOU and that the MOU in question expired on June 30, 2013.7
5 No party contests these representations by the City.
6 These allegations are contained in Case No. SF-CE-1028-M.
7 Petitioner disputes that the MOU expired, pointing to a clause in the MOU that
provides:
4	4

July 26, 2013, the City submitted a letter to the Board agent urging PERB to
disregard SEIU' s position statement because it "incorrectly identifies SEID [Local] 1021 as
'the exclusive representative'"
of
the general bargaining unit, and failed to disclose complete
evidence regarding a 1997 agency fee agreement.
The Office
of
the General Counsel issued a letter on July 31, 2013, to Christianson,
Steele and the City's attorney, Richard C. Bolanos, informing them that investigation
of
the
agency fee rescission petition established the following facts: 	(1) "[t]he current representative
of
the 'General' bargaining unit
...
is [SEID] Local 1021 "; (2) Article 1, Section lO(A)
of
the
MOU between "the exclusive representative and the City
of
Fremont" contains an agency fee
provision; (3) a written agreement dated March 20, 1997, between the City and SEID
Local 790 contains an agency fee provision; and (4) the City does not have local rules adopting
procedures for an agency fee rescission election. Proof
of
employee support that accompanied
the petition was deemed sufficient. Consequently, the Office
of
the General Counsel
determined that an election should be conducted. The letter concluded by setting a date
of
August 12, 2013, for a conference to discuss the mechanics
of
the election.
On August 3, 2013, SEID filed with PERB both an administrative appeal from this
decision to conduct the rescission election pursuant to PERB Regulation 323608 and a request
for stay
of
activity pursuant to PERB Regulation 32370.9
Unless otherwise so provided, this Memorandum
of
Understanding shall be effective July 1, 2011 and shall expire on
June 30, 2013 and shall continue in effect from year to year
thereafter unless terminated or modified as provided herein.
(MOU, Art. 11, § 1.) Neither modification nor termination has occurred, according to
Petitioners.
8
5
PERB Regulation 32360, subdivision (a) provides, in pertinent part: "An appeal may
be filed with the Board itself from any administrative decision."

August 15, 2013, SEIU filed an interlocutory appeal with the Office
of
the General
Counsel, claiming that "PERB Regulations do not clearly define administrative decisions and
interlocutory orders," and "[i]n an effort to be thorough," SEIU was filing both an
administrative appeal and an interlocutory appeal regarding the same July 31, 2013
determination by the Office
of
General Counsel.10 SEIU' s letter concluded: "Please be
advised that
if
neither Appeal is adjudicated in a timely fashion, we will also pursue a blocking
charge. "
11
The grounds for both the interlocutory and the administrative appeal are the
same-the
petition is untimely because there is no MOU in effect, and the rescission petition is tainted by
the City's alleged unfair practices.
9 PERB Regulation 32370 provides, in pertinent part:
An appeal will not automatically prevent the Board from
proceeding in a case. Parties seeking a stay
of
any activity may
file a request for a stay with the administrative appeal which shall
include all pertinent facts and justification for the request.
10 PERB Regulation 32200 provides, in pertinent part:
A party may object to a Board agent's interlocutory order or
ruling on a motion and request a ruling by the Board
itself
....
The Board agent may
...
join in the request and certify
the matter to the Board. The Board itself will not accept the
request unless the Board agent joins in the request. The Board
agent may join in the request only where all
of
the following
apply:
(a) The issue involved is one
of
law;
(b) The issue involved is controlling in the case;
(c) An immediate appeal will materially advance the resolution
of the case.
11
A blocking charge is an unfair practice charge that alleges that alleged conduct
"relating to the voting unit
...
would so affect the election process as to prevent the employees
from exercising free choice." (PERB Reg. 61190.)
6

On August 23, 2013, Christianson filed a position statement in response to SEIU's
interlocutory appeal. She opposed the request for stay, asserting that the alleged unfair
practices are unrelated to the rescission petition, because regardless of the outcome of the
election, the exclusive representative will not change. Christianson also asserts that the MOU
is still in effect by operation of the "evergreen " clause, set forth in footnote 7, above.
On August 23, 2013, the Office of the General Counsel joined in SEIU's request to
certify the interlocutory appeal to the Board itself. The certified issue of law was stated as
follows: "whether Government Code section 3502.5 prohibits PERB from conducting an
agency fee rescission election when there is no Memorandum of Understanding (MOU ) in
effect." The General Counsel made no finding on the factual predicate of this issue, viz.,
whether the MOU in this case was in effect or not. This letter concluded, "At the direction of
the General Counsel, further election proceedings in this matter will be stayed pending a
decision by the Board itself."
DISCUSSION
The Rescission Petition
In the absence of local rules, agency fee rescission petitions under the MMBA are
governed by section 3502.5, subdivision (d ), and PERB Regulations 61000 and 61600 et seq.
If the rescission petition is "timely and properly filed ...and the proof submitted in
support ...is determined to be adequate ...a rescission election among the employees in the
established unit shall be conducted under procedures established by the Board and in
accordance with election procedures described in these regulations." (PERB Reg.61620.)
Implicit in this regulation is the duty of the Office of the General Counsel to determine issues
7

to whether the petition was ''timely and properly" filed.
12
The Office
of
the General
Counsel's investigation is not limited to merely determining
proof
of
support and whether the
employer has adopted local regulations concerning rescission procedures.
In Pleasant Valley Elementary School District (1984) PERB Decision No. 380
(Pleasant Valley), the Board held that the "blocking charge" rule applies to rescission
elections. In that case, the exclusive representative filed an unfair practice charge alleging that
the employer illegally refused to enforce the agency fee provision in effect. Shortly thereafter,
a group
of
employees filed a rescission petition. The union amended its charge to allege that
the employer's unfair practice
of
refusing to enforce the provision influenced employees to file
the rescission petition and prevented them from exercising free choice in the anticipated
election. In upholding the Board agent's decision to stay the election, the Board relied on
PERB Regulation 32752,
13
which provides:
The Board may stay an election pending the resolution
of
an
unfair practice charge relating to the voting unit upon an
investigation and a finding that alleged unlawful conduct would
so affect the election process as to prevent the employees from
exercising free choice. Any determination to stay an election
made by the Board pursuant to this section may be appealed to
the Board itself in accordance with the provisions
of
Chapter 1,
Subchapter 4, Article 3
of
these regulations.
(Emphasis added.)
The Board noted in Pleasant Valley, supra, PERB Decision No. 380, at p.
5:
In considering the stay
of
an election, the Board agent's
obligation is to determine whether the facts alleged in the unfair
12
The Office
of
the General Counsel recognized this obligation in its initial letter to the
parties, dated July 8, 2013, where the parties were invited to set forth any pertinent facts or
issues which should be addressed during PERB' s "investigation regarding the validity
of
this
amended petition."
13
This regulation is identical to PERB Regulation 61190, governing elections under the
MMBA.
8

(Emphasis added.)
It is clear from both the plain meaning of the above-quoted regulation and PERB
precedent that the Office of the General Counsel (or Board agent), not the Board itself,
investigates and determines in the first instance whether an election should be stayed because
of a pending unfair practice charge. (Jefferson School District (1979) PERB Order No. Ad-66
[upholding administrative determination by a Board agent to block a decertification election];
Jefferson School District (1980) PERB Order No. Ad-82 [upholding administrative
determination by Board agent that decertification election should no longer be blocked].)
In its initial position statement to the Office of the General Counsel, SEIU raised two
objections to the rescission petition: (1) that the petition is untimely because a rescission
election cannot occur after the expiration of an MOU; and (2) this particular rescission petition
should be dismissed because employee free choice cannot occur in the shadow of the
employer's alleged unfair practices. The Office of the General Counsel did not investigate or
address either contention when assessing the validity of the petition.
Because SEIU's contentions were squarely presented in its position statement, it was
incumbent on the Office of the General Counsel to conduct an investigation pursuant to PERB
Regulation 61190, because it had learned of "alleged unlawful conduct [that] would so affect
the election process as to prevent the employees from exercising free choice." SEIU's
extensive position statement was more than sufficient to put the Office of the General Counsel
on notice of SEIU's position that the unfair practices alleged in Case No. SF-CE-1028-M
warranted a stay of the rescission election, regardless of whether SEIU filed a second unfair
practice charge denominated a "blocking charge."
practice complaint, if true, would be likely to affect the vote of
the employees and, thus, the outcome of the election.
9

the mixed question
of
fact and law raised by SEIU's contention that the
rescission petition was untimely because
of
the status
of
the MOU and the statutory language
of
MMBA section 3502.5, subdivision (d), was also not addressed in the initial investigation
of
the petition. PERB Regulation 61620, subdivision (a) mandates that the Office
of
the General
Counsel determine whether the rescission petition is "timely."
Thus, we remand this case back to the Office
of
the General Counsel so that it may
investigate and determine in the first instance whether the MOU in this case is in effect or
expired;
if
the MOU is determined to be expired, whether as a matter
of
law under the MMBA,
a rescission election can occur after the expiration
of
an MOU; and whether the unfair
practices alleged in Case No. SF-CE-1028-M would so affect the election process so as to
prevent the employees from exercising free choice. 14
Once the Office
of
the General Counsel has conducted its investigation and issued an
administrative decision containing a statement
of
issues, fact, law and rationale,
15
such
decision may be appealed to the Board itself under PERB Regulation 32360, pursuant to
Regulation 61060.
16
14
We note that the Office
of
the General Counsel did in fact stay the election in the
August 23, 2013 letter to the parties, presumably pursuant to the authority vested by PERB
Regulation 61190. However, this was done without any apparent investigation and findings
regarding SEIU' s allegation that the City's unfair practices prevents a fair election, as required
by PERB Regulation 61190.
15
PERB Regulation 32350, subdivision (b), provides: "An administrative decision
shall contain a statement of issues, fact, law, and rationale used in reaching the determination."
16 PERB Regulation 61060 provides: "Any determination rendered without a hearing
shall be issued in accordance with Section 32350 and may be appealed pursuant to
section 32360 of these Regulations."
10

for Stay
Pursuant to PERB Regulation 323 70, SEID filed a request for stay with the Board itself
when it filed its administrative appeal. That regulation provides, in pertinent part: "The Board
may stay the matter, except as is otherwise provided in these regulations."
In light
of
our remand
of
this case, we decline this request. In our view, the question
of
whether the rescission election should be stayed is "otherwise provided in these regulations,"
i.e., by PERB Regulation 61190. Under PERB Regulation 61190, the issue whether to stay the
rescission election should be investigated and decided by the Office
of
the General Counsel.
Because the Office
of
the General Counsel will be investigating whether the election should be
blocked pursuant to PERB Regulation 61190, as well as whether the petition was timely filed,
both
of
which determinations may be appealed to the Board under PERB Regulation 32360,
SEID' s request for the Board itself to decide a stay is premature.
Interlocutory Appeal
We also dismiss SEID' s interlocutory appeal, as it is not the appropriate procedure in
this matter at this point in time. PERB Regulation 61000 establishes that the Board will
conduct agency fee rescission elections under the MMBA in accordance with Chapter 5
of
the
regulations (PERB Regs. 61000 through 61630) where, as here, a public agency has not
adopted local rules concerning agency fee rescission.
As mentioned above, PERB Regulation 61060 makes administrative decisions rendered
without a hearing appealable under PERB Regulation 32360.
The July 31, 2013 letter
of
the Office
of
the General Counsel is clearly a "determination
rendered without a hearing." Although not titled "Determination," by its own terms it
established facts, determined the sufficiency of the proof of employee support, and ordered the
election to be conducted. Moreover, Pleasant Valley, supra, PERB Decision No. 380, and
11	11

Lemore Union High School District (1978) PERB Order No. Ad-47, demonstrates that PERB
has treated Board agents' determinations regarding rescission elections as administrative
decisions under PERB Regulation 32350 and therefore subject to appeal under PERB
Regulation 32360.
In contrast, an interlocutory order, governed by PERB Regulation 32200, which
appears in the subchapter
of
our regulations entitled "Hearings," contemplates an appeal from a
board agent ruling made in the course
of
a hearing. PERB Regulation 32200 states as much:
"A
party may object to a Board agent's interlocutory order or ruling on a motion and request a
ruling by the Board itself." While we do not intend by this decision to fully explicate the
scope
of
interlocutory orders, it is clear from PERB Regulation 61060 that the Office
of
the
General Counsel's July 31, 2013 letter was an administrative decision, not an interlocutory
order.
ORDER
Based on the foregoing Decision and the entire record in this case, it is hereby ordered
that Case No. SF-OS-199-M is REMANDED to the Office
of
the General Counsel to conduct
an investigation and determine whether the rescission petition is timely, and
if
so, whether the
election should be stayed on the basis
of
PERB Regulation 61190. It is also hereby ordered
that the interlocutory appeal and request for stay
of
activity filed under PERB
Regulation 32370 be DISMISSED.
Chair Martinez; Members Huguenin and Banks joined in this Decision.
12	12
ORDER
Chair Martinez; Members Huguenin and Banks joined in this Decision.