Westlands Water District (PERB 1622M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS LOCAL 3,
Charging Party,
V.
WESTLANDS WATER DISTRICT,
Respondent.
Case No. SA-CE-65-M
PERB Decision No. 	1622-M
April 	22, 	2004
Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Alan G. Crowley and Matthew A.
Gauger, Attorneys, for Operating Engineers Local 3; Sagaser, Franson & Jones by Howard A.
Sagaser, Attorney, for W estlands Water District.
Before Duncan, Chairman; Neima and Whitehead, Members.
DECISION
NEIMA, Member: 	This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Operating Engineers Local 3 (Operating Engineers) of a Board
agent's dismissal of its unfair practice charge. The charge alleged that the Westlands Water
District (District) violated the Meyers-Milias-Brown Act (MMBA) 1 by accepting a unit
modification petition, approving the petitioned unit, and scheduling an election on the unit
modification petition. The Board agent dismissed the charge for failure to state a prima facie
case.
The Board has reviewed the entire record in this matter, including the original and
amended charge, the warning and dismissal letters, the Operating Engineers' appeal and the
District's response. Based on the discussion below, the Board reverses the dismissal and
remands this matter to the Office of the General Counsel for issuance of a complaint.
1The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
Recognition of Operating Engineers
The jurisdiction of the Board is not in dispute. 	On August 29, 1996, the District
recognized Operating Engineers as the representative of a miscellaneous unit of approximately
80 employees of the District. On February 7, 2002, the District accepted a petition seeking to
decertify the Operating Engineers as the exclusive representative of the miscellaneous unit of
employees. An election was held on March 14, 2002, which was won by the Operating
Engineers. Also on March 14, 2002, the Operating Engineers won an agency fee election.
In April 2002, the District received a petition from a group of employees seeking to
modify the miscellaneous unit by creating a separate office clerical unit (clerical unit) to be
represented by the Westlands Office and Clerical Employee Association (WOCEA). This
petition sought to create the new unit by removing twenty-six clerical workers from a unit of
approximately eighty employees represented by the Operating Engineers.
On May 17, 2002, District Assistant General Manager, Dave Ciapponi (Ciapponi)
informed the Operating Engineers that:
After having received the input of Operating Engineers Local
Union No. 3 and applying the criteria set forth in Article 12.11,
Modification of Established Appropriate Unit, of the District's
Rules & Regulations, I have determined that the modified unit is
a more appropriate unit which will assure employees the fullest
freedom in the exercise of rights and the continued efficiency and
effectiveness of the District's operation.
An election of the proposed modified unit will be scheduled for
June 19, 2002. Pursuant to the District's Rules & Regulations,
Sectionl2.l l(B), should Operating Engineers Local No. 3
disagree with this determination, you have the right to refer the
matter to the Board of Directors for final determination. The
Board of Directors will meet on June 13, 2002, prior to the
election, and any requests to be placed on the agenda will need to
be filed timely.
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On June 10, 2002, the Water District's Supervisor of Human Resources and
Administration, Gary Lundin sent the Operating Engineers a letter which stated:
Per Article 12.11 (B) of the District's Rules and Regulations, your
challenge to the General Manager/General Counsel's
determination with respect to the modification of the established
appropriate unit has been included on the Board of Director's
agenda for final determination on June 13, 2002, beginning at
10:00 am at Westlands Water District ...
On June 14, 2002, Ciapponi sent the Operating Engineers a letter that stated in full:
Operating Engineers Local 3's objection and challenge of the
General Manager/General Counsel's determination with respect to
the modification of the established appropriate unit was
agendized and acted upon at the June 13, 2002, Board of
Directors meeting pursuant to Article 12.11.B of the District's
Rules and Regulations. The Board of Directors affirmed the
General Manager/General Counsel's determination with respect to
the W estlands Office and Clerical Employee Association.
On June 19, 2002, an election was held on the unit modification issue where only the
clerical employees were allowed to vote. They voted to modify the unit.
Relevant Local Rules
Pursuant to MMBA section 3507, the District has adopted local Employer-Employee
Rules (EER) governing employer-employee relations. The relevant portions of the EER are as
follows:
12.7 	APPROPRIATE UNIT
A. 	The Manager may, and after review of a petition filed by
an employee organization seeking recognition pursuant to
Section 12.8 shall, determine the appropriate unit or units.
Prior to making such determination, he shall consult with
any employee organization which has filed such petition
relevant to the determination and any affected employee
organization. The consultation shall be for the purpose of
the obtaining of employee and organization views on any
proposed determination, including effect and operation of
criteria stated in this section. The consultation shall be
informal and shall occur after reasonable notice has been
given to such employees and organizations.
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B. 	The principle criterion in determining an appropriate unit
shall be that the unit established shall be the broadest
feasible group
of
employees having an identifiable
community
of
interest. The following factors, among
others, are to be considered in making a determination
of
an appropriate unit:
(1) 	which unit will assure employees the fullest freedom in
the exercise
of
rights set forth under this article;
(2) 	the history
of
employee relations
(i) 	in the proposed unit,
(ii) among other employees
of
the District, and
(iii) in similar public employment;
(3) 	the effect
of
the unit on the efficient operation
of
the
District and sound employer-employee relations; and
(4) 	the extent to which employees have common skills,
supervision, working conditions, and job duties, and that
the positions have similar training or educational
requirements.
C. 	In determination
of
the appropriate unit, the Manager shall
apply the following rules:
(l)	
except in the case
of
confidential employee, a single class
of
employees shall not be divided among two or more
appropriate units;
(2) 	no unit shall be deemed appropriate solely on the basis
of
the extent to which employees in the proposed unit have
organized;
(3) 	professional employees shall not be denied the right to be
represented separately from nonprofessional employees;
(4) 	confidential employees shall not be included in the same
unit as nonconfidential employees;
(5) 	management employees shall not be included in the same
unit with nonmanagement employees;
(6) 	supervisory employees shall not be included in the same
unit as nonsupervisory employees; and
(7) 	guard employees shall not be included in the same unit as
nonguard employees.
12.9 	ELECTIONS: FORMAL RECOGNITION
G. 	The recognition rights
of
a recognized employee
organization designated in accordance with this section
shall not be subject to challenge by election for a period
of
at least twelve months following the date
of
such
recognition. 	[Emphasis added.]
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12.10 	REVOCATION OF REPRESENTATION
A. 	A petition for revocation of [sic] alleging that an
employee organization granted formal recognition is no
longer the representative of a majority of the employees in
an appropriate unit may be filed with the Manager only
during the last two months of any twelve-month period
following the month in which formal recognition was
granted. The petition for revocation may be filed by an
employee, a group of employees or their representative, or
an employee organization. The petition, including all
accompanying documents, shall be verified under penalty
of perjury by the person signing it that its contents are
true. The petition for revocation shall be filed with the
Manager and shall contain the following ... [Emphasis
added.]
12.11 	MODIFICATION OF ESTABLISHED APPROPRIATE
UNIT
A. 	A petition for modification of an established appropriate
unit may be filed by an employee organization with the
Manager during the two-month period for filing a petition
for revocation ... [Emphasis added.]
B. 	If the Manager determines that a modified unit is a more
appropriate unit, then he shall follow the process set forth
in Section 12.9 for determining formal recognition rights
in such unit. If the Manager's determination with respect
to the modification of the established appropriate unit is
challenged by an employee organization, the matter shall
be referred to the Board of Directors for final
determination. The Board shall not be required to set
forth findings in its order. 	[Emphasis added.]
DISCUSSION
Acceptance of Unit Modification Petition
The first issue on appeal involves the District's acceptance of WOCEA's unit
modification petition under the specific provision ofEER 12.11. Operating Engineers alleges
that, under the application of EER 12.10, a unit modification petition may only be filed "during
the last two months of any twelve-month period following the month in which formal
recognition was granted." Since Operating Engineers was formally recognized on August 29,
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1996, they argue that a unit modification petition can only be filed in July or August of each
year. By accepting a petition in April, the District violated its own local rules, according to
Operating Engineers.
The District claims that EER 12.10 allows the filing of a representational petition
during the two-month period before expiration of the memorandum of understanding (MOU)
or anytime thereafter. Since the contract with Operating Engineers had expired by April 2002,
there was no bar to the District's acceptance of WOCEA's petition. The District claims that in
applying EER 12.10, it followed federal precedent under the National Labor Relations Act
(NLRA)2. Specifically, the District argues that its application of EER 12.10 is consistent with
the contract bar rule3 under the NLRA. The District argues that relying on NLRA precedent is
proper since California courts have turned to NLRA precedent to interpret analogous
provisions of the MMBA.
The District's argument fails because nothing in EER 12.10 resembles that of a contract
bar provision. EER 12.10 does not reference a contract nor is its function dependent upon the
existence of a contract. (Cf., e.g., PERB Reg. 61380(c)(l).) Instead, EER 12.10 appears to be
a 12-month bar triggered by the formal recognition of an employee organization. (See, e.g.,
Ralph C. Dills Act sec. 3520.5(c) (Dills Act)4; PERB Reg. 61380(c)(3)5.) Such a rule is
intended to provide an insulating period of 12 months to permit the employee organization to
2The NLRA is codified at 29 U.S.C. section 141, et seq.
3Simply stated, the contract bar rule under the NLRA holds that an existing collective
bargaining agreement not exceeding three years will bar a petition for redetermination of
representation in most instances. (See NLRB v. Circle A&W Products Cto. (9 th Cir. 1981) 647
F.2d 924, 926 [107 LRRM 2923, 2924].)
4The Dills Act is codified at Government Code section 3 512 et seq.
5PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
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represent its unit and negotiate with the employer without interference with its representational
rights.
Operating Engineers argues that under EER 12.10, revocation and unit modification
petitions may only be filed in July or August of any year (since it was formally recognized on
August 29, 1996). In other words, they read the phrase "any twelve-month period" as "the
one-year period". Under Operating Engineers' interpretation, EER 12.10 would read:
[A] petition for revocation ... may be filed with the Manager
"only during the last two months of [the one-year period] period
following the month in which formal recognition was granted."
However, that is not what the rule states. EER 12.10 uses the phrase "any twelve-
month period." By its plain meaning, the twelve-month period can be any twelve-month
period. Thus, it could be the twelve-month period ending August, or September, or October,
and so forth. 	The end result of such a rule is that it provides protection for the incumbent
union onlv for the first twelve months after formal recognition. After that, the specific
provisions of EER 12.10 do not constitute a bar to representational petitions.
It is well-settled that in evaluating a charge, the plain language of the contract or rule
will be accepted where it is clear and unambiguous. (Glendora Unified School District (1991)
PERB Decision No. 876; Butte Community College District (1985) PERB Decision No. 555.)
Here, adhering to the plain language of EER 12.10 leads to the conclusion that an election bar
exists for the first twelve-months after formal recognition. Accordingly, Operating Engineers'
allegation that the District violated EER 12.10 when it accepted the filing ofWOCEA's unit
modification petition fails to state a prima facie case.
Determination of Appropriate Unit
Operating Engineers' second contention is that the District violated EER 12. 7 when it
determined that the proposed clerical unit was an appropriate unit. 	Specifically, it argues that
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the relevant factors and criteria contained in EER 12.7 do not support the District's conclusion
that a clerical unit is appropriate. However, these allegations fail to state facts constituting an
unfair practice. With respect to a unit determination decision under the MMBA, an unfair
practice occurs only where it is alleged that the local rule itself is invalid or where there has
been unlawful interference or denial ofrights. (PERB Reg. 32603.) As Operating Engineers
has not made such allegations, that portion of the unfair practice charge must also be
dismissed. 6
Scheduling of Election
Lastly, Operating Engineers argues that the District violated its own local rules by
conducting an election on WOCEA's unit modification petition within twelve months of the
decertification election. In essence, it argues that it should not have had to face two challenges
to its representational rights within one year. In support, Operating Engineers cites to
EER 12.9(g) which states:
G. 	The recognition rights of a recognized employee
organization designated in accordance with this section
shall not be subject to challenge by election for a period of
at least twelve months following the date of such
recognition. [Emphasis added.]
Operating Engineers interprets the phrase "recognition rights" to include more than just
an employee organization's initial formal recognition. It asserts that an employee
organization's "recognition rights" are established any time there is a representational election,
including any decertification and unit modification election. Thus, under Operating Engineers'
interpretation, its "recognition rights" were established not only in August 1996, when it was
initially formally recognized, but renewed again in March 2002, when employees voted to
6Where a party instead seeks review of the unit determination decision itself, a petition
for Board review should be filed. 	(PERB Reg. 60000 et seq.) As no such petition was filed in
this matter, the Board declines to address Operating Engineers' arguments regarding the
appropriateness of the District's unit determination decision.
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maintain representation. According to Operating Engineers, WOCEA's unit modification
petition constitutes a challenge to its "recognition rights." Under EER 12.9(g), Operating
Engineers argues that an election on WOCEA's unit modification petition was barred for at
least one year from March 2002. By conducting an election in June 2002, the District violated
EER 12.9(g), according to Operating Engineers.
The District does not directly address the import of EER 12.9. Rather, the District
argues generally that since no contract was in effect, there was no contract bar to holding
another election. The District asserts that consistent with public policy, "the District deemed
that the Petition was timely and that there was not any bar to the processing of the Petition."
For the purpose of issuing a complaint, the Board agrees with Operating Engineers'
argument regarding the rights conferred to the bargaining unit by EER 12.9(g). Examining the
District's local rules as a whole, it seems clear that the meaning of "recognition rights" in
EER 12.9 includes more than the initial formal recognition of an employee organization. This
is because EER 12.9 is expressly incorporated into other provisions of the District's local rules.
Importantly, EER 12.9 is incorporated into the District's local rule governing unit
modifications. EER 12.11 states, in pertinent part:
If the Manager determines that a modified unit is a more
appropriate unit, then he shall follow the procedures set forth in
Section 12.9 for determining formal recognition rights in such
unit .... [Emphasis added.]
Thus, by its plain language, an election under EER 12.11 must comply with 	12.9. As
discussed, EER 12.9 states that only one challenge to the recognition rights of an recognized
employee organization may be made in a twelve month period. Since the recognition rights of
Operating Engineers were designated pursuant to EER 12.9 in March 2002, when it prevailed
in the decertification election, challenges to those rights were barred for a 12-month period
9

from that election. By conducting an election on the unit modification petition in June 2002,
the District violated its own local rules. Accordingly, a complaint should be issued.
The Board notes that its interpretation of EER 12.9 is consistent with its understanding
of the plain language of the District's local rules. At hearing, the District is not prohibited
from asserting a contrary interpretation or prevented from attempting to introduce extrinsic
evidence. (Long Beach Community College District (2000) PERB Decision No. 1378.)
However, the Board further notes that even if the District's local rules permitted the instant
unit modification election, the District may be in violation of MMBA section 3507(b ), which
states:
Exclusive recognition of employee organizations formally
recognized as majority representatives pursuant to a vote of the
employees may be revoked by a majority vote of the employees
only after a period of not less than 12 months following the date
of recognition.
Since the applicability ofMMBA section 3507(b) has not been raised on appeal, the Board
makes no finding on this issue at this time. Instead, the Board will defer this issue to the
administrative law judge.
ORDER
The Board REVERSES the dismissal of the unfair practice charge in Case No.
SA-CE-65-M and REMANDS the case to the Office of the General Counsel for issuance of a
COMPLAINT consistent with this Decision.
Chairman Duncan and Member Whitehead joined in this Decision.
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