Diablo Water District (PERB 1545M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATIONARY ENGINEERS LOCAL 39,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO,

Charging Party, Case No. SF-CE-16-M
V. PERB Decision No. 1545-M
DIABLO WATER DISTRICT, July 29, 2003
Respondent.

Appearance: Van Bourg, Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for
Stationary Engineers Local 39, International Union of Operating Engineers, AFL-CIO.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Stationary Engineers Local 39, International Union of Operating
Engineers, AFL-CIO (IUOE) of a Board agent’s dismissal (attached) of its unfair practice
charge. The first amended charge alleged that the Diablo Water District (District) violated the
Meyers-Milias-Brown Act (MMBA)' by refusing to meet and confer with IUOE regarding
proposed changes in dress code and dual employment policies. This failure to meet and confer

is alleged to violate MMBA sections 3502, 3503, 3504 and 3505.

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

The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, the warning and dismissal letters, the District's response to the
charge and IUOE's appeal. Based on the following discussion, the Board dismisses the unfair
practice charge.
DISCUSSION
The facts alleged in the charge are that on October 5, 2001, IUOE submitted a showing
of
interest by employees
of
the District along with a demand for recognition by certified mail
to the District.2 At the time, the District did not have its own local rules or labor relations
ordinance.
The District claims that since August 21, 2001, it has been soliciting input from
employees regarding the District's desire to codify existing dress code standards and policies
on after-hours employment.3 On October 15, the District General Manager, Mike Yeraka
(Yeraka), sent proposed written policies on dress code and after-hours employment to IUOE
and informed them that he was going to discuss the policies with employees on October 16.4
He also stated, "Please let me know
if
you would like to meet to discuss these written policies
before or after the employee meeting. Any comments or suggestions you have for improving
2 All dates occurred in 2001 unless otherwise specifically noted.
3 IUOE informed the Board agent that the original charge would be amended to allege
an unlawful unilateral change. Although IUOE's amended charge makes a conclusory
allegation that the written policies constituted a change in working conditions, it provides no
specific facts. Accordingly, the amended charge fails to state a prima facie case. Moreover,
the Board notes that IUOE has failed to raise this issue on appeal.
4 The Board views this contention of "direct dealing" as an unalleged violation in this
charge. A prima facie case based on such an allegation requires that the employees involved in
the conduct be represented by an exclusive representative. There is no exclusive representative
present in this case and therefore there is no prima facie case based on this theory.
2

the written policies would be appreciated." The District met separately with employees on
October
16
and with IUOE representatives on October 17.
Yeraka telefaxed a letter to IUOE business representative, Kevin Barry (Barry), on
November 2, stating:
In the afternoon
of
October 17, 2001, we met to discuss the
policies. However, during that meeting I did not receive any
suggestions from you for any changes or improvements in the
language
of
the written policies.
By your October 12, 2001, letter I was under the impression that
you wanted to meet and confer regarding this matter. To date, I
have not received any input from you regarding these policies.
Please provide me with any suggested changes or improvements
to the policies, in written form, by November 16, 2001.
If
I do not receive any comments from you by that date, I will
assume that the written form
of
the policies is acceptable.
In a letter dated November 85, Barry responded to the District's attempts to solicit input
from IUOE by stating, in pertinent part:
that at that meeting
of
October 17, 2001, I indicated that since
Local 39 was not formally recognized, and was not in a formal
meet and confer process, it would not be appropriate for Local 39
to act on these policy issues. 	[Emphasis added.]
Yeraka, by telefaxed letter
of
November 30, responded to Barry that a draft
of
the
Employee Relations Regulation had been sent and that he looked forward to reviewing any
suggested changes IUOE might have to the draft. Once the final regulation was adopted by the
District's board
of
directors, the process
of
determining whether IUOE would be formally
recognized could begin and after that contract negotiations could be discussed. With regard to
5 The District claims that it did not receive a copy of the November 8 letter until it was
telefaxed to the District on November 27. The Board notes that the District's address listed on
the November 8 letter contains the incorrect postal code.
3

the dress code and after-hours employment resolution, Y eraka extended the deadline for
comments to December 12.
IUOE responded
by
filing this instant charge on December 4. On December 12, Yeraka
telefaxed a letter to Barry stating:
As per our obligation to a non-exclusive representative, we would
be willing to meet and confer with you on December 1
i\
th
18 	in
th 	th
the morning, 20 	in the morning, 21st,
2J1h
or the 28 	. Please let
me know
if
any
of
these dates and times will work for you.
The District at some unknown date, prior to February 8, 2002, adopted the dress code
and dual employment policies.
In its appeal, IUOE only argues that the District was obligated to meet and confer over
the proposed dress code and dual employment policies. Even assuming that IUOE had a right
to meet and confer with the District, the Board finds that IUOE waived its right by failing to
request to meet and confer. Failure to request to meet and confer is considered a waiver
of
its right to bargain. (Sylvan Union Elementary School District (1992) PERB Decision ·
No. 919; Stockton Police Officers' Assn. v. City
of
Stockton (1988) 206 Cal.App.3d 62
[253 Cal.Rptr. 183].) A waiver must be clear and unmistakable and cover all aspects
of
the
particular matter in question. 	(Amador Valley Joint Union High School District (1978)
PERB Decision No. 74; Building Material & Construction Teamsters' Union v. Farrell (1986)
41
Cal.3d 651 [224 Cal.Rptr. 688].) A waiver
of
the right to bargain will not be lightly
inferred. (Oakland Unified School District (1982) PERB Decision No. 236.) The evidence
must indicate an intentional relinquishment
of
the union's rights. (Moreno Valley Unified
School District (1995) PERB Decision No. 1106.)
In this matter, it is undisputed that the District provided notice
of
the proposed policies
to IUOE. The District solicited input from IUOE and offered to meet to discuss the policies.
4

In response, IUOE refused to meet with the District. IUOE took the position that until it was
formally granted status as a "recognized employee organization" it would not participate in the
meet and confer process.
IUOE's intent was clear and unmistakable. IUOE refused to meet with the District
until the District granted IUOE status as a "recognized employee organization." IUOE's
failure to take advantage
of
the District's offer constitutes a waiver
of
its right and is fatal to its
unfair practice charge. (Stockton Police Officers' Assn.
v.
City
of
Stockton (1988)
206 Cal.App.3d 62 [253 Cal.Rptr. 183].) Accordingly, the Board finds that IUOE waived its
right to meet and confer with the District over the dress code and dual employment policies.
ORDER
The unfair practice charge in Case No. SF-CE-16-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
5

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
_ Fax: (916) 327-6377
March 19, 2002
Stewart Weinberg, Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
180 Grand A venue
Oakland, CA 94612
Re: 	International Union
of
Operating Engineers, AFL-CIO
v.
Diab lo Water District
Unfair Practice Charge No. SF-CE-16-M
DISMISSAL LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 4, 2001, and a First Amended Charge was filed on
February 11, 2002. 	The International Union
of
Operating Engineers, AFL-CIO (Charging
Party or Union) alleges that the Diablo Water District (Employer) violated the Meyers-Milias-
Brown Act (MMBA) 1
by adopting changes to its dress code and dual employment policies in
October 2001.
I indicated to you in my attached letter dated February 28, 2002, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would conect the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to March 11, 2002, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my February 28, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. 	The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CE-16-M
March 19, 2002
Page 2
A document is considered "filed" when actually received before the close
of
business
(5
p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the 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 (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause 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. (Regulation 32132.)

SF-CE-16-M
March 19, 2002
Page 3
(
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By	
LLes Chisholm
Regional Director
Attachment
cc: Mike Yeraka

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-63
77
February 28, 2002
Stewart Weinberg, Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
180 Grand Avenue
Oakland, CA 94612
Re: 	International Union
of
Operating Engineers, AFL-CIO
v.
Diab lo Water District
Unfair Practice Charge No. SF-CE-16-M
WARNING LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 4, 2001, and a First Amended Charge was filed
on
February 11, 2002. 	The International Union
of
Operating Engineers, AFL-CIO (Charging
Party or Union) alleges that the Diablo Water District (Employer) violated the Meyers-Milias-
Brown Act (MMBA) 1
by
adopting changes to its dress code and dual employment policies in
October 2001.
As amended, the statement
of
the charge reads:
The Charging Party has submitted a showing
of
interest by
employees
of
the Employer. The Employer does not have its own
rules and regulations governing recognition. The Employer has
refused to meet and confer with the charging party regarding
wages, hours and working conditions until the Employer
completes its process
of
adopting rules and regulations regarding
recognition. 	The demand for recognition was made on or about
October 5, 2001
by
certified letter, but the Employer has
consistently refused to meet and confer since that date.
Notwithstanding the fact that the Union notified the Diablo Water
District on October 5, 2001, the Employer on or about November
2, 2001 failed to meet and confer with the Charging Party
concerning working conditions involving the dress code and a
dual employment resolution. Instead, on October 15, 2002 [sic]
the Employer sent information to the Union for the Union to offer
"suggestions for any changes or improvements". The Employer
then met with the employees directly on October 16, 2001 over
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-16-M
February 28, 2002
Page 2
the changes in a dress code and dual employment resolution.
Although the Employer met with the Union on the following day,
October 17, 2001, the Employer was not seeking to negotiate or
meet and confer but rather to listen
to
the Union's "input".
The Employer then adopted resolutions changing the dress code
and a dual employment policy.
When we discussed this charge on January 22, 2002, you informed me that the Employer had
acted to adopt an employee relations ordinance and the parties were scheduled to begin
bargaining. At that time, you indicated the charge would be amended and that the focus
of
the
amended charge would be on the alleged unilateral changes made by the Employer concerning
dress code and dual employment policies. This intent was restated when we later discussed the
charge on February 7, 2002.
However, the charge arguably asserts that the Employer violated the MMBA both by refusing
to grant exclusive representative status to the Union prior to adoption oflocal rules for
representation petitions and by refusing to negotiate with the Union over policies prior to
recognition
of
the Union as the exclusive representative. Both theories
of
the case fail to state
prima facie evidence
of
a violation
of
the MMBA under Covina-Azusa Fire Fighters Union,
Local 2415, IAFF, AFL-CIO v. City
of
Azusa (1978)
81
Cal.App.3d 48 (City
of
Azusa).
In City
of
Azusa, the court ruled in pertinent part:
The union apparently makes the erroneous assumption that
if
it
represents a majority
of
the employees in the unit, it must be
considered the "exclusive bargaining representative" for all the
employees in the unit. This assumption, presumably derived
from practice under the National Labor Relations Act (N.L.R.A.),
is not true under MMB. Unless and until the city adopts rules and
regulations pursuant to Government Code section 3507,
providing for exclusive recognition following an employee vote,
it must recognize all employee organizations representing at least
some employees and must meet and confer with each
of
them
about wages, hours, and terms and conditions
of
employment
(Gov. Code§ 3505) and meet and consult with each
of
them
about matters concerning the ground rules pertaining to employee
representation relationships (Gov. Code § 3507), including, of
course, the designation of appropriate employee units.
Thus, the Employer's refusal in this case to grant exclusive recognition to the Union until after
it adopted local rules did not, under City of Azusa, violate the MMBA. 2 Further, the facts
Notice is taken that the MMBA was recently amended, by the addition of a new
subsection (c) to section 3507.1, to provide for exclusive recognition of employee
organizations based on a card check. However, since the effective date of that amendment was
January 1, 2002, and the events giving rise to the charge occurred in the Fall of 2001, the

SF-CE-16-M
February 28, 2002
Page 3
alleged in the charge do not support a finding that the Employer violated its duty to meet and
consult ( as opposed to negotiate) with the Union over proposed changes in policies. According
to the charge, the Employer gave notice to the Union
of
the changes being considered, offered
to and did meet with the Union, and agreed to consider the Union's input. These facts do not
support finding a violation
of
the MMBA under either City
of
Azusa or analogous Board
precedent (see, e.g., Los Angeles Unified School District (1996) PERB Decision No. 1153 and
The Regents
of
the University
of
California (1998) PERB Decision No. 1252-H).
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly.labeled Second Amended Charge, contain
all the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before March 11, 2002, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number. 	·
Sincerely,
Les Chisholm
Regional Director
change in the statute does not affect the analysis in this case or the application of City ofAzusa.