Morgan Hill Unified School District (PERB A443E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MORGAN HILL UNIFIED SCHOOL DISTRICT,
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Exclusive Representative.
Case No. SF-UM-768-E
Administrative Appeal
PERB Order No. Ad-443
December 13, 2016
THE REAL
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union Local 521; Liebert Cassidy Whitmore by Laura Schulkind and
Kristin Lindgren, Attorneys, for Morgan Hill Unified School District.
Before Winslow, Banks, and Gregersen, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Service Employees International Union Local 521 (SEIU) from
an Abeyance Letter (Abeyance Letter) issued by the PERB Office of the General Counsel
(OGC). The Abeyance Letter placed into abeyance a unit modification petition filed by SEIU
on or about July 1, 2016 under the Educational Employment Relations Act (EERA)1 to modify
its classified employee bargaining unit with Morgan Hill Unified School District (District),
pending the outcome of a decertification petition also filed on or about July 1. In addition to
appealing the Abeyance Letter under PERB Regulation 32360 subdivision (a), SEIU requested
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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a stay of activity on the decertification petition under PERB Regulation 32370.2
For the reasons explained below, we deny SEIU’s appeal and request for stay.
PROCEDURAL HISTORY
On or about July 1, 2016, a group of bargaining unit employees seeking to decertify
SEIU as the exclusive representative of the District’s classified employee bargaining unit filed
a decertification petition. This petition is being processed as PERB Case No. SF-DP-322-E.
On the same day, SEIU filed a unit modification petition to delete the Human
Resources Specialist classification from the classified employee bargaining unit, on the
grounds that it is a confidential employee position under EERA sections 3540.1, subdivision
(c) and 3543.4. On or about July 25, 2016, the District filed a response opposing SEIU’s unit
modification petition on the merits.
On August 8, 2016, the OGC determined that the decertification petition was timely
and was accompanied by a sufficient proof of support. On the same day, the OGC notified the
parties that SEIU’s unit modification petition would be placed in abeyance until the
decertification petition could be processed. The Abeyance Letter noted that the Board has held
that “a decertification petition which is properly filed in an established unit and contains the
requisite proof of support should be given priority over a unit modification petition, so long as
no formal determination on the merits of the unit modification petition has been made at the
time the decertification petition is filed.” (Peralta Community College District (1987) PERB
Order No. Ad-164 at p. 8 (Peralta); underline in original.) No determination was made on the
merits of the unit modification petition.
2 PERB’s regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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Concluding that Peralta, supra, PERB Decision No. Ad-164 applied to this case, the
OGC placed the unit modification petition in abeyance pending resolution of the
decertification petition.
SEIU’S APPEAL
SEIU appealed the Abeyance Letter, asserting that it satisfied the definition of an
administrative decision under PERB Regulation 32350,3 even though it was not titled
“administrative determination.” On the merits, SEIU urges that the rule articulated in Peralta,
supra, PERB Decision No. Ad-164 should not apply in this case because an alleged
confidential employee “acted in her capacity as a confidential employee and as an agent of
management to further the decertification effort.” (Administrative Appeal, p. 1.) Thus,
according to SEIU, the confidential employee’s participation in the decertification effort has
tainted it and the decertification petition therefore should be dismissed.
SEIU requests that the Board direct the OGC to remove the unit modification petition
from abeyance and set the matter for informal conference or formal hearing and stay the
3 PERB Regulation 32350, “Definition of Administrative Decision,” states:
(a) An administrative decision is any determination made by a
Board agent other than:
(1) a refusal to issue a complaint in an unfair practice case
pursuant to Section 32630,
(2) a dismissal of an unfair practice charge, or
(3) a decision which results from the conduct of a formal hearing
or from an investigation which results in the submission of a
stipulated record and a proposed decision written pursuant to
Section 32215.
(b) An administrative decision shall contain a statement of the
issues, fact, law and rationale used in reaching the determination.
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decertification election until the unit modification petition can be adjudicated. We deny this
request for reasons explained below.
SEIU also requested official notice of its unfair practice charge filed on August 19,
2016, which did not yet have a case number, and SEIU’s request to block the decertification
election in Case No. SF-DP-322-E. We grant that request.4
DISCUSSION
Although the broad definition of “administrative decision” contained in PERB
Regulation 32350 could theoretically include an abeyance letter, such a conclusion ignores
PERB Regulation 32380, which states that interlocutory orders are not appealable unless
certain conditions are met.
Our regulations do not define “interlocutory order.” However, we may look to other
authority for guidance. The OGC’s placement of SEIU’s unit modification petition in
abeyance pending resolution of the decertification petition constitutes an interlocutory order if
the Abeyance Letter does not “constitute[e] a final resolution of the whole controversy.”5
4 PERB may take official notice of matters within its own filed and records (Antelope
Valley Community College District (1979) PERB Decision No. 97, p. 23; Santa Clara County
Superior Court (2014) PERB Decision No. 2394-C. p. 16.) We note that in Case No SF-DP-
322-E, the OGC considered SEIU’s request to block the decertification election on the basis of
Unfair Practice Case No. SF-CE-3194-E, among other charges. In that unfair practice charge,
SEIU alleged that the Human Resource Specialist classification is “confidential,” that an
incumbent employee in that classification was active in the decertification effort, and that the
District improperly provided that employee with a list of employees in the unit. On September
23, 2016, the OGC determined that these allegations provided no basis for staying the election.
SEIU did not appeal that administrative determination.
5 INTERLOCUTORY, Black’s Law Dictionary (10th ed. 2014). See also 7 Witkin,
Cal. Procedure, (5th ed. 2008) Judgment, § 12; Sawyer v. Orange Motors (N.Y. App. Div.
2005) 24 A.D.3d 1117, 1117: (“[T]he Board’s decision—which essentially held claimant’s
reduced earnings benefits in abeyance pending consideration of a more developed record—was
interlocutory in nature and neither disposed of all substantive issues nor reached a threshold
legal issue which might be conclusive of the claim . . .”).
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Placement of the unit modification petition in abeyance was not a final determination on the
merits, because the OGC’s ruling did not decide the merits of that petition, i.e., whether the
classification in question or the four employees in that classification were “confidential.”
Moreover, the abeyance does not prejudice SEIU’s legal position with respect to the
decertification petition. SEIU may challenge the ballots cast by the employees it contends are
improperly in the bargaining unit. It may also file objections to the election if it loses the
election, and it may pursue the unfair practice charges it has filed. In short, SEIU has several
avenues to litigate the question of whether participation by the four allegedly confidential
employees so tainted the decertification process that adverse election results should be
overturned.
For these reasons, the Abeyance Letter is properly characterized as an interlocutory
order. Under PERB Regulation 32380 subdivision (b), interlocutory orders are not appealable
unless the board agent joins in the request and certifies the matter to the Board itself. (PERB
Regulation 32200.) Under PERB Regulation 32200, “[t]he Board itself will not accept the
request unless the Board agent joins in the request.” SEIU did not seek the board agent’s
joinder in SEIU’s appeal. The appeal is therefore procedurally deficient, and we reject it on
that ground.
We also reject SEIU’s request that the decertification petition be dismissed prior to the
election. The only grounds on which decertification petitions may be dismissed prior to an
election are those enumerated in PERB Regulations 32770 and 32776.6 (See, e.g., State of
6 PERB Regulation 32770 requires a proof of support of at least 30 percent of unit
members. Failing to meet that level of support justifies dismissal of the decertification
petition. PERB Regulation 32776 incorporates the doctrines of contract bar and representation
bar.
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California (Department of Personnel Administration) (1985) PERB Decision No. 532-S;
Capistrano Unified School District (1994) PERB Order No. Ad-261; Taft Union High School
District (1978) PERB Order No. Ad-50.) Since the decertification petition was accompanied
by more than 30 percent support and there was no bar to an election, the OGC could not
dismiss the decertification petition prior to the election, even if the classification at issue in the
unit modification petition was confidential.
Since we deny SEIU’s appeal, we also hereby deny SEIU’s request for a stay of activity
on the decertification petition under PERB Regulation 32370.
ORDER
Service Employees International Union Local 521’s appeal of the Office of the General
Counsel’s abeyance letter in Case No. SF-UM-768-E is hereby DISMISSED.
Members Banks and Gregersen joined in this Decision.
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