County of Orange * * * OVERRULED by County of San Diego (2020) PERB Decision No. 2721-M (PERB 1868M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 660,
Charging Party,
v.
COUNTY OF ORANGE,
Respondent.
ORANGE COUNTY EMPLOYEES
ASSOCIATION/ASSOCIATION OF ORANGE
COUNTY DEPUTY SHERIFFS,
Joined Party.
Case No.LA-CE-101-M
PERB Decision No. 	1868-M
December 	1 5 , 	2006
Appearances: Altshuler, Berzon, Nussbaum, Rubin & Demain by Jonathan Weissglass,
Attorney, for Service Employees International Union Local 660; Olins, Hayes & Miller by
Shana C. Lathrop, Attorney, for Association of Orange County Deputy Sheriffs.
Before Shek, McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Service Employees International Union Local 660
(SEIU) to a proposed decision (attached) of the administrative law judge (ALJ). The charge
alleged the local rules for the County of Orange (County) contain an unreasonable signature
requirement for decertification petitions in violation of the Meyers-Milias-Brown Act
(MMBA)1. 	The ALJ held SEIU's unfair practice charge was not timely filed and thereupon
dismissed the complaint and the underlying unfair practice charge.
The MMBA is codified at Government Code section 3500, et seq.
* * * OVERRULED by County of San Diego (2020) PERB Decision No. 2721-M * * *

The Board has reviewed the entire record in this matter, including the proposed
decision, SEIU's exceptions, the Orange County Employees Association/Association of
Orange County Deputy Sheriffs' response and SEIU's reply and conclude the proposed
decision is free of prejudicial error. 	Accordingly, subject to the discussion below regarding
timeliness, we adopt the proposed decision as a decision of the Board itself. 	The Board,
therefore, affirms the dismissal of the complaint.
BACKGROUND
SEIU filed an unfair practice charge against the County alleging its local rules contain
an unreasonable signature requirement for decertification petitions. The facts in this case were
thoroughly addressed in the proposed decision and need not be reiterated herein. However,
one set of facts warrants repeating. Namely, SEIU neither filed a decertification petition nor
even attempted to obtain any proof of support for such a petition within the six months
preceding the filing of the instant unfair practice charge.2 Accordingly, the County has neither
applied nor enforced the signature requirement to SEIU's detriment within the statutory period.
In short, SEIU has suffered no harm at the hands of the County in connection with its current
decertification attempt. Rather, this action is based solely on Service Employees Internat.
Union v. Superior Court (2001) 89 Cal.App.4 th 1390 [108 Cal.Rptr.2d 505] (Superior Court) in
which the court found unreasonable an identical signature requirement. 	In essence, SEIU
argues the Board should invalidate the signature gathering requirement, regardless of whether
or not SEIU has suffered any harm.
2The statute of limitations for unfair practices arising under the MMBA is six (6)
months. 	(Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4 th 1072, 1092 [29 Cal.Rptr.3d 234].)
22

The ALJ ruled that the charge was not timely filed by SEIU and dismissed the
complaint and the underlying charge. 	On appeal, SEIU argues the charge was timely filed by
operation of the continuing violation doctrine.3 For the reasons set forth below, we conclude
the continuing violation doctrine is not applicable in this instance and, therefore, hold the
charge was not timely filed.
A. 	Continuing Violations
The Board has recognized the continuing violation doctrine for over twenty years.
(See, e.g., San Dieguito Union High School District (1982) PERB Decision No. 194
(San Dieguito); Regents of the University of California (1983) PERB Decision No. 353-H
(Regents).) Moreover, like the instant case, the Board has applied the doctrine to charges
based upon interference by a public agency. The Board, however, has imposed certain
limitations on the use of the doctrine. 	In State of California (Departments of Personnel
Administration, Banking, Transportation, Water Resources and Board of Equalization) (1998)
PERB Decision No. 1279-S (DPA, et al.), the Board explained:
The challenged conduct, therefore, is continuing in nature. At
issue is a continuously discriminatory application of a policy that
treats usage of State communications equipment one way for
Union purposes and another way for other non-business purposes.
This type of unfair practice is a 'continuing violation.' 	In such
cases, even if the first act in a series was outside the period of
timeliness, the underlying unfair practice may be revived by a
subsequent act within the statutory period. Although the prior
incidents may not be the basis for the finding of a violation, the
underlying unfair practice can be 'revived' by the new wrongful
act that was timely raised. [Emphasis added.]
The County's signature gathering requirement was increased from 30 percent to
50 percent in May 1990. SEIU did not object to the change. Later, in 1997-1998, SEIU filed
an unsuccessful decertification petition and has not filed another petition since. 	Because the
instant unfair practice charge was filed in December 2002, 12 years after the rule was modified
and four years after SEIU's last decertification attempt, the charge was not timely filed absent
a finding of a continuing violation.
33

Thus, in order to invoke the continuing violation doctrine, the offending party must
commit a new wrongful act, and this act must be timely challenged by the charging party. This
"new wrongful act" standard has been regularly applied by the Board since 1982.
(San Dieguito); (Regents'); Compton Community College District (1991) PERB Decision
No. 915; Fresno County Office of Education (1993) PERB Decision No. 978 (Fresno County);
State of California (Department of Corrections) (2003) PERB No. 1559-S (Corrections).)
B. 	The Long Beach Decision Can, and Should, be Distinguished
It should be noted that there is a case in which the Board did not apply the new
wrongful act standard when it invoked the continuing violation doctrine. In Long Beach
Unified School District (1987) PERB Decision No. 608 (Long Beach), the Board applied the
doctrine to an interference charge challenging the employer's access regulations. The Board
found the charge timely, even though the regulation was adopted outside the limitations period,
and regardless of whether the regulation was revised or enforced within the limitations period.
The ALJ concluded, and we agree, that Long Beach is distinguishable from the present
case. In that case, the only way to test the enforcement of the unreasonable access regulation
was to violate it and potentially risk disciplinary consequences. In marked contrast, the instant
signature requirement may be tested without similar risk by simply filing an arguably
reasonable number of signatures in an arguably reasonable period of time. Indeed, the Board
seemingly took this into consideration when it explained in Long Beach that:
[W]e find it unnecessary to adopt the ALJ's statement that each
act of enforcement constitutes a new and separate cause of action.
While this may be true, the Association need not demonstrate an
attempt to violate the regulation in order to show the District
would enforce it.
A	4

In the present case, the County has not committed a new wrongful act within the
statutory period. Thus, there is no intervening act by the County in which to revive a challenge
to the County's 1990 adoption of the 50 percent signature requirement. Accordingly, the mere
existence of the allegedly unreasonable signature requirement, standing alone, is insufficient to
invoke the continuing violation in this case.
C. The Invocation of the Continuing Violation Doctrine Requires an Intervening Act
The dissent, which has abandoned the new wrongful act standard, argues the harm in
this case flows, not from the filing of a decertification petition, but from the existence of the
County's allegedly unreasonable decertification rules. According to the dissent, the mere
existence of an allegedly unreasonable rule interferes on an unending basis with the rights of
employees to select the employee organization of their choice. Therefore, the dissent
concludes the unfair practice charge is not time barred because it is based on a continuing
violation.
This argument, however, is inconsistent with the considerable body of PERB case law
in which the Board ruled that the mere fact an arguably unreasonable rule exists does not
automatically trigger the application of the continuing violation doctrine. As explained by the
Board, "a continuing violation would not be found where the employer's conduct during the
limitations period constituted an unfair practice only by its relation to the original offense."
(El Dorado Union High School District (1984) PERB Decision No. 382.) In other words, a
continuing violation will only be found when the wrongdoer engages in active conduct (i.e.,
new wrongful act) within the limitations periods that independently constitutes an unfair
practice. (See Corrections.)
U	
5

In the present case, unlike the union in Long Beach, SEIU risks nothing by attempting
to meet the signature requirement. If, as proposed in the dissent, the new wrongful act
standard was dropped, the statute of limitations for local rule challenges would be eviscerated.
Absent a meaningful limitation period, these rules would be subject to challenge at any time
with little or no burden to the charging party. As a result, local rules, if subjected to perpetual
vulnerability, will likely be thrown into a state of flux and, thereby, create chaos, not stability,
in labor-management relations. Moreover, the viability and integrity of local rules, which the
Legislature deliberately sought to protect, would be significantly compromised.
According to the dissent, PERB has only applied the "new wrongful act" standard to
charges alleging unilateral change, discrimination and/or retaliation. Moreover, the dissent
contends that:
The Board has consistently found continuing violations in cases
involving charges based on interferences by the public agency, on
the ground that once an unreasonable rule is put into effect, it
remains operative until revoked or rescinded.
However, the Board has, in fact, applied the new wrongful act standard to charges
alleging interference subsequent to the issuance of the Long Beach decision. For example, in
Fresno County, the Board upheld a dismissal in which the Board agent applied the new
wrongful act standard to an interference charge in which the employer refused to acknowledge
an individual as a site representative. 	Similarly, in The Regents of the University of California
(1988) PERB Decision No. 694-H, the new wrongful act standard was applied to an
interference charge in which the employer failed to distribute copies of a memorandum of
understanding.
Based on the foregoing, it is apparent that the Board has not consistently applied the
continuing violation standard set forth in Long Beach to interference cases. 	We, therefore,
66

conclude the Long Beach decision does not establish a standard for all interference charges.
Rather, it creates an exception to the new wrongful act standard for interference cases
involving access restrictions. 	Accordingly, we hereby affirm the new wrongful act standard as
a key component of the continuing violation doctrine and hold that the doctrine is not
applicable in this instance.
D. 	PERB Does Not Issue Declaratory Relief or Advisory Opinions
As discussed above, SEIU has not been harmed by the signature requirement. Indeed,
it is possible that SEIU, if it actively sought decertification, might reach the 50 percent
threshold when seeking support and, therefore, not be harmed. Because there is no case in
controversy before the Board, SEIU essentially seeks a declaratory judgment in this matter.
However, the Board has long held that it does not render advisory opinions or provide
declaratory relief. 	(Jefferson School District (1980) PERB Order No. Ad-82.) 	Thus, if the
Board drops the standard, it would overturn long standing PERB precedent.
We conclude that it is inadvisable to open the door to such actions. Since they would
not be based on an actual controversy, the evidence in these de facto declaratory relief actions
would be based on conjecture and/or theoretical facts. However, the Board's decision making
is best conducted in the context of an actual set of facts so that the issues will be framed with
sufficient definiteness to enable the Board to render a decision to finally dispose of the
controversy. 	Said another way, the Board, and for that matter, the public, is better served when
the Board focuses on the resolution of specific legal disputes rather than the resolution of
abstract differences of legal opinion.
We recognize the desirability to rule on the merits of this case in light of the Superior
- -
Court decision. However, based on the discussion above, SEIU needs to take some action to
77

revive the underlying unfair practice charge. To rule otherwise would disregard years of
PERB precedent and potentially open the floodgates to a myriad of local rule challenges.
For these reasons, we believe the ALJ properly rejected SEIU's continuing violation
theory in ruling the matter was not timely filed. As the ALJ explained:
At least when an employee organization wishes to challenge a
decertification petition signature requirement, it seems more
appropriate to expect the organization either (a) to file a charge
with PERB when the requirement has been recently adopted or
revised or (2) [sic] to test the enforcement of the requirement by
actually filing a decertification petition, and then to file a charge
with PERB if necessary.
We agree. Accordingly, we conclude the ALJ's proposed decision is free of prejudicial
error and adopt it as a decision of the Board itself.4
ORDER
The unfair practice charge in Case No. LA-CE-101-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member Neuwald joined in this Decision.
Member Shek's dissent begins on page 9.
The dissent spends a considerable amount of time discussing both the reasonableness
of the County's signature requirement and, after concluding the requirement was unreasonable,
the appropriate remedy. Since we are dismissing this charge as untimely, both issues are
irrelevant and need not be addressed herein.
8

SHEK, Member, dissenting: 	I respectfully dissent based on my finding that the
majority opinion misinterprets and misapplies the doctrine of "continuing violation" as set
forth in San Dieguito Union High School District (1982) PERB Decision No. 194
(San Dieguito). Long Beach Unified School District (1987) PERB Decision No. 608 (Long
Beach), and State of California (Departments of Personnel Administration, Banking,
Transportation, Water Resources and Board of Equalization) (1998) PERB
-
1 Decision
No. 1279-S (State of California). In straining to reject a finding of continuing violation, the
majority departs from the Long Beach precedent. 	It incorrectly merges the concepts of "new
wrongful act" and "continuing violation," which are set forth in San Dieguito as separate
means by which a charge may survive a challenge based upon the statute of limitations. A
"new wrongful act" is not required to establish a continuing violation where the charging party
alleges that a rule or regulation is invalid on its face.
At issue in the present case is whether or not the existence of an employer
decertification rule interferes with the statutory rights of employees or employee organizations.
The Board has consistently found continuing violations in cases involving charges based on
interferences by the public agency, on the ground that once an unreasonable rule is put into
effect, it remains operative until revoked or rescinded. In this case, the decertification rule
remained in effect during the six-month period prior to the filing of the charge. Thus, I would
reverse the administrative law judge's (ALJ) proposed decision and hold that the charge by
Service Employees International Union (SEIU) was timely filed under the continuing violation
doctrine.
1Public Employment Relations Board (PERB or Board).
9

Moreover, as discussed below, I would hold the decertification rule invalid in
accordance with Service Employees Internat. Union v. Superior Court (2001) 89 Cal.App.4th
1390 [108 Cal.Rptr.2d 505] (Superior Court).
PROCEDURAL HISTORY
This action commenced when SEIU filed an unfair practice charge against the County
of Orange (County) on December 20, 2002. 	The Office of the General Counsel of the Board
followed on April 10, 2003, by issuing a complaint against the County. The complaint alleged
that since May 1990, the County had maintained an Employee Relations Resolution (ERR).
Section 1 LA of the ERR stated in relevant part that a request for decertification was required
to be accompanied by a petition signed by at least 50 percent of the regular and probationary
employees within the representation unit, and that the signatures on the petition had to be
obtained within 30 days prior to the date the request was submitted. The complaint continued
to allege that the County policy: (1) was contrary to the Meyers-Milias-Brown Act (MMBA or
Act),2 and as such, violated Sections 3507 and 3507.1, and constituted an unfair practice under
Section 3509(b) and PERB Regulation 32603(f);3 (2) interfered with the rights of bargaining
unit employees to be represented by SEIU in violation of Section 3506, and was an unfair
practice under Section 3509(b) and PERB Regulation 32603(a); and (3) denied SEIU their
right to represent bargaining unit employees in violation of Section 3503, and as such, was an
unfair practice under Section 3509(b) and PERB Regulation 32603(b). The County filed an
2The MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
3PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
10

answer on April 24, 2003. PERB held informal settlement conferences on May 22 and June 5,
2003, but the case was not settled.
On September 23, 2003, the Association of Orange County Deputy Sheriffs (AOCDS)
filed a motion for joinder as a party to the case. On October 2, 2003, the Orange County
Employees Association (OCEA) filed a similar application for joinder. 	Over SEIU's
opposition, OCEA and AOCDS were joined as parties by an order dated October 6, 2003.
A formal hearing was conducted before the ALJ on October 14 and 15, 2003, at the
PERB office in Los Angeles. At the beginning of the hearing, AOCDS filed a motion to
dismiss the case, which was taken under submission. The matter was submitted for decision
on February 25, 2004, after the filing of post-hearing briefs. The ALJ issued a proposed
decision on May 4, 2004 (proposed decision), finding the unfair practice charge was not timely
filed, and thereby dismissed the complaint and the underlying unfair practice charge.
FINDINGS OF FACT
The County is a public agency within the meaning of Section 3501(c) and PERB
Regulation 32016(a). 	SEIU, OCEA and AOCDS are employee organizations within the
meaning of Section 350l(b), recognized employee organizations within the meaning of Section
350l(b), and exclusive representatives within the meaning of PERB Regulation 32016(b),
representing units of County employees.
The County has about 17,000 employees, almost all of whom are unionized. They
work in 213 different County facilities. There are 14 bargaining units. The SEIU Local 660
represents a unit of about 500 employees. OCEA represents 8 units with a total of about
12,000 employees. 	AOCDS represents a unit of about 1,800 employees.
11

Pursuant to Section 3507, the County has adopted local rules within the meaning of
PERB Regulation 32016(c) for the administration of employer-employee relations. 	The
current ERR was adopted in May 1990, and according to Chief of the County Employee
Relations, Susan Paul (Paul), it was continuously in effect until and through the date of the
hearing on October 15, 2003. In Section 11 (Decertification Procedure), subsection A of the
ERR, it is stated:
During the 30 days beginning nine months before the expiration
of a unit's current Memorandum of Understanding, requests for
decertification of an Exclusively Recognized Employee
Organization may be submitted by employees, employee
organizations or Exclusively Recognized Employee
Organizations. The decertification requests should be submitted
to the Personnel Director and must be accompanied by a petition
signed by at least 50 percent of the regular and probationary
employees within the representation unit. The petitions must
contain: a) full printed name of employee, b) signature, c) date
signed. 	Signatures on the petition must have been obtained
within the 30 days prior to the date the request is submitted.
(Emphasis added.)
Before May 1990, and continuously during the period of July 1984 through May 1990,
the local rule concerning a decertification petition required signatures of "at least 30 percent of
the regular and probationary employees within the unit," to be obtained within the prior 30
days. 	Before that, the local rule concerning the decertification requirement that was
continuously in effect beginning 1969 through 1984, required that signatures of at least 30
percent of the regular and probationary employees be "obtained within the 90 days prior to the
date the request is submitted." According to Paul's testimony, the County formally adopted
12

four separate ERRs with identical decertification requirements during the period of 1969
through 1984.4
The decertification petition signature requirement was increased from 30 to 50 percent
in May 1990 partly at the request of OCEA Assistant General Manager, Dominic Berardino
(Berardino), to create "a more stable labor relations environment." At the hearing in this case,
Berardino explained that the higher requirement "discourage[d] the idea" of decertification (or
"raiding," as he saw it). On April 3, 1990, the County sent a copy of the proposed revisions to
the local rules to SEIU. An attached cover letter stated that some revisions would "modify
provisions to avoid undue disruption." If the County had not heard from the recipient by
"April 18, 1990," the letter continued, it would assume that the recipient "concur[red] with the
proposed revisions" and "proceed to have the Board of Supervisors adopt the revised ERR."
On page 10 of the proposed revisions to the local rules, under the heading, "Section 11.
DECERTIFICATION PROCEDURE", a numerical "30" was stricken and "50" was inserted to
denote the required percentage of signatures of the regular and probationary employees within
the representation unit on a petition accompanying a decertification request. 	(Underline in the
original.) SEIU apparently did not respond on or before April 18, 1990, within the 15-day
response period prescribed by the County.
SEIU filed an unsuccessful petition to decertify OCEA in at least one unit in 1997-98,
and has not filed such a petition for any County unit since then. 	SEIU Western Regional
Organizing Director, since June 1997, Jim Philliou (Philliou), testified that given the
"difficulty" of the County's local rule, SEIU was "waiting for this [PERB] process to unfold
An ERR that was adopted in 1969 remained "in effect through 1970." The ERR
adopted in 1970 "was in effect during 1974." The ERR adopted in 1974 was "carried through"
to 1979, and the one adopted in March 1979 was in effect until 1984.
13

before doing much more down there." He testified further he had no evidence that SEIU had
requested the decertification requirement be changed. 	He believed SEIU started discussing
with the County about changing the rule prior to the filing of the current charge. 	SEIU had
evaluated the different targets for union organization in the County, and concluded that this
requirement would make pursuing these targets very difficult.
On March 12, 2003, after SEIU had filed the charge, Paul initiated a meeting with SEIU
Representative, Linda Renta, and the then President, Blake Williams, to discuss potential
change to the ERR, including the decertification petition signature requirement. 	SEIU
representatives advised Paul that they would meet on March 19, 2003, with other employees,
and get back to Paul regarding her proposed meet and confer over the decertification rule.
DISCUSSION
The proposed decision held that SEIU's unfair practice charge was not timely filed
since the County did not "[a]dopt or enforce a local rule" within the meaning of PERB
Regulation 32603(f) within either the six-month or the three-year limitations period before the
charge was filed on December 20, 2002.5 As stated in the proposed decision, an allegedly
unreasonable decertification petition signature requirement was not a continuing violation.
Authorizing any employee or employee organization to file a charge challenging any local rule
as unreasonable at any time, the proposed decision further held, would be inconsistent with the
Legislature's cautious approach to expanding PERB's jurisdiction or authority.
The proposed decision was issued before the California Supreme Court had settled the
issue of the applicability of a six-month or a three-year limitations period to MMBA unfair
practice charges.
14

SEIU excepts to the conclusion in the proposed decision that it would be inappropriate
to address the merits of the charge and the remedy, given the charge was barred by the statute
of limitations.
The AOCDS states in its brief that the ALJ's order was proper because SEIU's unfair
practice charge was untimely, thus making any analysis of MMBA violations and/or remedies
moot; and that even if the charge were considered timely, the County's decertification
requirement was both reasonable and valid.
I give merit to SEIU's allegations that the County's unreasonable decertification
petition requirement constitutes a continuing violation. If the County rule violates the intents
and purposes of the MMBA by interfering with the public employees' statutory rights to join
and participate in the activities of the exclusive representative of their own choosing, and
denying SEIU's protected right to represent bargaining unit employees, then the date on which
the rule was adopted or revised is immaterial. Once the allegedly unreasonable rule was put
into effect, it remained in effect continuously until rescinded or revoked, and the violation is
continuing in nature. 	In accordance with the Court's interpretation of an identical showing of
interest requirement in Superior Court, I find the County's decertification petition signature
requirement to be onerous, inconsistent with, and does not effectuate the declared intent and
purposes of the MMBA. 	I would therefore order the County decertification rule vacated.
Timeliness
The majority opinion incorrectly states that "in order to invoke the continuing violation
doctrine, the offending party must commit a new wrongful act, and this act must be timely
challenged by the charging party." (Majority op. at p. 4.)
15

Contrary to the majority opinion, a careful review of the Board's San Dieguito decision,
which discussed the continuing violation doctrine at length, demonstrates that "subsequent
unlawful conduct" is not required for a "continuing violation." Instead, San Dieguito separated
these two concepts by the disjunctive term "or." Along with tolling of the limitations period,
all three distinct concepts act as limitations upon the applicability of the statute of limitations.
San Dieguito states:
[T]he charge may still be considered to be timely filed if the
alleged violation is a continuing one, if the violation has been
revived by subsequent unlawful conduct within the six-month
period, or if the limitation period was tolled while the Association
-
was diligently and reasonably pursuing alternative procedures for
obtaining relief and other alternative remedies.
(Id., at p. 5, emphasis added.)
-
This statement means that there are different circumstances under which there may be a (i)
continuing violation; (ii) a "new wrongful act"; or (iii) tolling of the limitations period.
San Dieguito addressed an alleged unilateral change in a policy requiring teachers to sign out if
they left the campus, and held that the alleged unilateral change in policy did not constitute a
continuing violation. 	(Id, at p. 9.) It is noteworthy that the charging party in San Dieguito
alleged simply that the policy was adopted unilaterally, not that the policy itself was invalid.
-
Where a rule or regulation itself is being challenged as invalid, the Board has held that
its mere existence may be a continuing violation. (Long Beach and State of California.)
At issue in Long Beach was a District rule restricting the organization's right of access
to bargaining unit members. 	The Board held that the association's allegations of unreasonable
denial of access asserted a violation of a continuing nature, and that neither the enactment nor
revision date of the rule triggered the six-month period, "since it is not the act of revising the
regulations of which [the association] complains but, rather, their existence, which continued
16

up to and through the time of the hearing." (Long Beach, at p. 12; emphasis in original.) "If
the regulations violate the Act by unreasonably denying access, then the date on which they
were revised is immaterial." (Id, at pp. 11 - 12.) Moreover, the Board in Long Beach stated:
In reaching this conclusion, we find it unnecessary to
adopt the ALJ's statement that each act of enforcement
constitutes a new and separate cause of action. While this
may be true, the Association need not demonstrate an
attempt to violate the regulation in order to show that the
District would enforce it.
(Ibid., at p. 12, emphasis added.)
Thus, the Board held that the mere existence of the allegedly invalid regulation was the
violation at issue, and applied the continuing violation doctrine without requiring any acts of
enforcement.
The decision in State of California is consistent with this rule. Although the portion of
the decision cited by the majority refers to subsequent acts within the statutory period
(Majority Op. at p. 3), the correct interpretation of State of California can be derived from
reading the pertinent portion of that decision in its entirety:
The evidence in support of the charge of interference establishes
that the departments whose conduct is under attack prohibited the
four employees from using either e-mail, computers or the fax
machine for Union business. 	The evidence establishes that the
restrictions, once put into effect, remained in effect continuously
thereafter.
The challenged conduct, therefore, is continuing in nature. At
issue is a continuously discriminatory application of a policy that
treats usage of State communications equipment one way for
Union purposes and another way for other non-business purposes.
This type of unfair practice is a 'continuing violation.' 	In such
cases, even if the first act in a series was outside the period of
timeliness, the underlying unfair practice may be revived by a
subsequent act within the statutory period. Although the prior
incidents may not be the basis for the finding of a violation, the
underlying unfair practice can be 'revived' by the new wrongful
17

act that was timely raised. 	(Compton Community College
District (1991) PERB Decision No. 915.)
I conclude that as to the alleged interference with employee and
employee organization rights, the unfair practice charge was
timely filed. This is because the challenged discriminatory
application of the State policy remained in effect during the
period six months prior to the filing of the charge.
(State of California, adopting the proposed dec, at p. 32.)
(Emphasis added.)
The underlined language emphasizes that the continuing violation doctrine applied in that case
because the restrictions "remained in effect continuously." Under the ALJ's analysis, which
was adopted by the Board, the statute of limitations did not begin to run upon either the
implementation of the policy or the implementation of any specific enforcement action. 	By the
term "new wrongful act," State of California referred to the continuous effect of a
discriminatory policy that resulted in interference with employee and employee organization
rights. 	The State of California decision does not undermine the holding of Long Beach that the
mere existence of an invalid rule or regulation constitutes a continuing violation.
In another decision, California (Department of Corrections) (1999) PERB Decision
No. 1339-S, at p. 8 (Department of Corrections), the Board found a violation under the
Ralph C. Dills Act (Dills Act)6 based upon an "endless" or continuous discriminatory
application of the state employer's otherwise reasonable policy.7 In finding that the charge
The Dills Act is codified at Government Code section 3512, et seq.
7In Department of Corrections, the department selectively refused to permit the union to-
use one of the "In Service Training" classrooms for the union's monthly meetings. The
department's defense was that the other entities were "invited" to use the classrooms, whereas
the union was not. The Board held that while the State had no obligation to "invite" CSEA to
use State property for union meetings, it might not discriminate with impunity by endlessly
"refraining from inviting" the union to use the classrooms. (Ibid., at p. 8, emphasis added.)
Accordingly, the Board held that the department had engaged in discriminatory actions by
"endlessly" or continuously refusing to invite the union to use the classrooms for union
18

was timely filed, the decision focused upon the continuous discriminatory application of its
access policy, rather than upon whether there were single occurrences of new violations.8
meetings. 	Such continuous discriminatory actions constituted the unlawful conduct that
interfered with protected rights of the employees and the union.
The "continuing violation" doctrine should be applied in this case under Long Beach
and State of California. 	The maintenance of a rule that allegedly violates employee rights
continues to affect those rights; hence, the date of promulgation or actual enforcement is not
the only event triggering the statute of limitations. The harm in the present case does not flow
from the filing of a decertification petition, but from the existence of the County's allegedly
unreasonable decertification rule. 	The existence of the allegedly unreasonable decertification
rule has a "chilling effect" on and therefore interferes endlessly with the right of employees to
select the employee organization of their choice, as discussed in the section on
"Reasonableness" further below.
The majority opinion holds that to prevail under the "new wrongful act" theory, SEIU
would be required to test the decertification rule by filing an arguably reasonable number of
signatures obtained in an arguably reasonable period of time. (Majority Op. at p. 4.) SEIU
argues, and I agree, that such a requirement would place an incredible burden on the employee
organization. 	The Board has held that "the Association need not demonstrate an attempt to
violate the regulation in order to show that the District would enforce it." (Long Beach, at
8The Board stated in a footnote that the charge was timely since it alleged "unlawful
conduct occurring within six months prior to the date of the charge." (Department of
Corrections, at p. 9, fn. 4, emphasis added.) It is noteworthy the Board viewed the unlawful
conduct as "occurring," instead of a single incident "that occurred" within the six-month
limitation period. 	It shows that in finding the charge timely, the Board considered the
department's continuous discriminatory application of its access policy, rather than a single
occurrence of refusal to grant access that allegedly constituted a "new violation," as the
majority suggests.
19

p. 12.) SEIU challenges the existence of the County decertification rule in this case, not their
enforcement in a particular instance. 	I therefore give merit to SEIU's argument that it is not
required to demonstrate an attempt to violate the decertification rule in order to show that the
County would enforce them.
The cases cited by the majority indicate that a "new wrongful act" is required to revive
the statute of limitations in cases where the alleged violation is an act, rather than the existence
of a rule or regulation. None of the decisions cited by the majority support its unwarranted
application of the "new wrongful act" to a rule that is alleged to be invalid on its face. As
discussed above, San Dieguito involved an allegation of unilateral change. 	Compton
Community College District (1991) PERB Decision No. 915 held that the failure to ratify a
retirement bonus was not a continuing violation. Fresno County Office of Education (1993)
PERB Decision No. 978 held that the statute of limitations for refusal to acknowledge a site
representative begins to run on issuance of a letter providing notice of such refusal.
El Dorado Union High School District (1984) PERB Decision No. 382 involved an allegation
of unilateral change. 	Regents of the University of California (1983) PERB Decision
No. 353-H discussed equitable tolling, not continuing violations.
Applying the continuing violation doctrine to cases challenging the facial validity of
rules or regulations would not require PERB to issue an advisory opinion.9 The decision in
Jefferson School District (1980) PERB Order No. Ad-82-a (Jefferson), cited by the majority
-
9Although it is difficult to find a definition of "advisory opinion," the decision in Santa
Clarita Community College District (College of the Canyons) (2003) PERB Dec. No. 1506
(stating that "PERB does not issue 'advisory opinions' or generalized declarations of law")
indicated that a Board agent's statement about the merits of a case would be an advisory
opinion upon which a party could not rely. 	Instead, "PERB's binding precedent is articulated
only through adjudication of issues presented through appeal of Board agent dismissals of
charges or exceptions from decisions of an ALJ." (Ibid., at p. 28.)
20

opinion, states that PERB will not provide an advisory opinion on the issue of whether parties
are required to negotiate certain items. Instead, PERB is limited to adjudicating the
negotiability of items for which a party has refused to negotiate. 	(Ibid., at p. 13.) Jefferson is
distinguishable from the instant case because under that scenario, there is no violation until a
party refuses to negotiate. In contrast, the mere existence of the unreasonable decertification
rule in this case is a violation, and thus adjudication of the validity of the rule would address an
alleged violation, and thus would not constitute an advisory opinion.
Even under the continuing violation doctrine, the parties would still be required to show
that there is an actual controversy. That requirement is satisfied in this case. In Chas. L.
Harney, Inc. v. Contractors' State License Board (1952) 39 Cal.2d 561, 564 [247 P.2d 913]
(Harney), which held that a party that wishes to challenge a restrictive rule may test the
validity of the rule without having to violate its terms. In that case, a contractor wished to bid
on work, but it was precluded from doing so by a rule requiring it to obtain specialty licenses.
The court allowed the plaintiff to challenge the rule without actually having bid on the work.
(Ibid.) The court held that the "actual controversy" requirement was satisfied in that case
where the complaint as a whole indicated that the plaintiff desired to bid on work that was
subject to the restrictive rule. (Ibid.) Similarly, in the instant case, the allegations that SEIU
desired to file a decertification petition, but was deterred from doing so by the rule's "chilling
effect", satisfy the actual controversy requirement.
The Harney decision involved a claim for declaratory relief. 	Although the Jefferson
School District decision cited by the majority states that PERB does not provide declaratory
relief, this case would not require PERB merely to issue a declaration as to the rights of the
parties. Rather, where appropriate, PERB has authority to issue a cease and desist order
- .
21

requiring the rescission of unlawful policies. 	(Rio Hondo Community College District (1983)
PERB Dec. No. 292.) Thus, PERB has the authority to adjudicate the validity of the
decertification rule as an interference charge in the present matter.
Since the issuance of the proposed decision, the California Supreme Court has decided
that the limitations period for making a MMBA unfair practice charge to the Board is six
months. "[F]or MMBA unfair practices occurring before July 1, 2001, a charge filed with the
PERB was timely if brought within three years of the occurrence of the unfair practice, or
within six months of July 1, 2001 (in other words, before January 1, 2002), whichever was
sooner." (Coachella Valley Mosquito & Vector Control Dist, v. California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072, 1092 [29 Cal.Rptr.3d 234].) To effectuate this ruling of
the California Supreme Court, the Board recently adopted PERB Regulation 32620(b)(5),
effective May 11, 2006, providing that the statute of limitations for the filing of an unfair
practice charge is six months. The decertification rule in this case remained in effect during
the six-month period prior to the filing of the charge, and I would therefore find SEIU's unfair
practice charge constitutes a continuing violation and is not time-barred.
Reasonableness
Because I would find that SEIU's charge is not time-barred, I must address the merits
of the charge.
SEIU excepts to the failure of the proposed decision to address the merits of the County
rule concerning the decertification petition signature requirement, and requests the Board to
22

decide the question of law rather than remand this issue.10 The County decertification petition
signature requirement violates several provisions of the MMBA and PERB regulations, namely
Sections 3500, 3502 and 3507, and Regulation 32603(f), SEIU contends, because it is not
consistent with, and does not effectuate the declared purposes of the MMBA as a whole. The
Court of Appeal has already invalidated the exact same decertification rule in Superior Court,
and thus, SEIU states, the Board should also invalidate the rule in this case.
AOCDS contends that the present matter is distinguishable from Long Beach, in that
the rules and regulations concerning decertification were not unilaterally adopted. AOCDS
asserts that the County adopted the rules after it had given SEIU an opportunity to meet and
confer pursuant to Section 3507(a), and after SEIU repeatedly declined to meet and confer or
failed to attempt to change these rules for more than ten years. The Court of Appeal ordered
the Orange County Superior Court to vacate its decertification rule, and to adopt new rules
through the meet and confer requirement. AOCDS alleges that SEIU had an opportunity to
negotiate with the County regarding its decertification rule, but failed to take any such action.
AOCDS also states that the signature requirement was raised from 30 to 50 percent within a
30-day timeframe at the request of the OCEA for the purpose of creating a "more stable labor
relations environment." Superior Court is distinguishable from the present case, AOCDS
finally contends, since it was neither a PERB nor a MMBA case, it did not involve a statute of
limitations issue; and there was an unsuccessful attempt to organize widespread employees
prior to the initiation of the legal action.
The issues raised by this charge concern the "reasonableness" of the local rule adopted
by the County under the authority granted it by Section 3507, which provides in part:
Since the record is complete, and there are no allegations of unresolved issues of fact,
23

- -
- -
I would deem it appropriate to address the reasonableness of the County rules.
(b) A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of
a recognized employee organization or organizations for the
administration of employer-employee relations under this chapter.
"The scope of local government rulemaking power under Government Code section 3507 is
limited by the policies and purposes of the MMBA." (International Brotherhood of Electrical
Workers v. City of Gridley (1983) 34 Cal.3d 191, 202 [193 Cal.Rptr. 518] (City of Gridley);
San Bernardino County Sheriff's Etc. Assn. v. Board of Supervisors (1992) 7 Cal.App.4th 602,
613 [8 Cal.Rptr.2d 658] (San Bernardino County).) The "Legislature intended that the MMBA
'set forth reasonable, proper and necessary principles which public agencies must follow in
their rules and regulations for administering their employer-employee relations.'" (City of
Gridley, at p. 198; Los Angeles County Firefighters Local 1014 v. City of Monrovia (1972)
24 Cal.App.3d 289, 295 [101 Cal.Rptr. 78]: Huntington Beach Police Officers' Assn, v. City of
Huntington Beach (1976) 58 Cal.App.3d 492, 502 [129 Cal.Rptr. 893] (Huntington Beach).)
In Huntington Beach, the court quoted with approval the analysis found in Joseph R.
Grodin (Grodin), Public Employee Bargaining in California: The Meyers- Milias-Brown Act
in the Courts (1972) 23 Hastings Law Journal 719, 724-725. Grodin wrote that the MMBA
reserves the power to local agencies to adopt rules and regulations which are "consistent with,
and effectuate the declared purposes of the statute as a whole." (Grodin, supra, at p. 725, also
quoted with approval in City of Gridley, at p. 202; San Bernardino County, at p. 613; and
Los Angeles County Civil Service Com, v. Superior Court (1978) 23 Cal.3d 55, 63
[151 Cal.Rptr. 547].) The court in Huntington Beach thus concluded that it could not attribute
to the Legislature "an intention to permit local entities to adopt regulations which would
frustrate the declared policies and purposes of the MMBA." (See also City of Gridley, at
24

p. 202; San Bernardino County, at p. 613.) In Huntington Beach, the court found a local rule
invalid declaring working hours outside the scope of representation because the rule was in
conflict with the declared purposes of the MMBA and the mandatory language of Section
3505. In City of Gridley, the State Supreme Court held that the purposes of the MMBA,
including protection of public employees' right to participate in organizations of their own
choosing, barred the city from revoking recognition of the union for encouraging or condoning
a strike.
Subsequent court cases have recognized that "[t]he MMBA deals with a matter of
statewide concern, and its standards may not be undercut by contradictory rules or procedures
that would frustrate its purposes." (International Federation of Prof. & Technical Engineers v.
City and County of San Francisco (2000) 79 Cal.App.4th 1300, 1306 	[94 Cal.Rptr.2d 790];
citing Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 781
[35 Cal.Rptr.2d 814]; City of Gridley, at pp. 197-198; and San Bernardino County, at p. 613.)
The MMBA only permits public agencies to adopt "reasonable" rules for the administration on
employer-employee relations. 	(City of Gridley, at p. 202, fn. 12.)
"Where a legislative action by a local governmental agency is attacked as unreasonable,
the burden of proof is on the attacking party. 	Such regulations are presumed to be reasonable
in the absence of proof to the contrary." (San Bernardino County, at p. 613, citing
Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 338 [122
Cal.Rptr. 210].)
The test for reasonableness is based on the language and intent of the MMBA, which
provides strong protection for the right of public employees to join organizations of their own
choice and be represented by such organizations in their employment relationships with public
25

agencies. 	(International Assn, of Fire Fighters Union v. City of Pleasanton (1976) 56
Cal.App.3d 959, 968 [129 Cal.Rptr. 68]; City of Gridley, supra, 34 Cal.3d at 198, 202, fn. 12;
MMBA sec. 3502.) It is the purpose of Section 3500 to:
. . . promote the improvement of personnel management and
employer-employee relations within the various public agencies
in the State of California by providing a uniform basis for
recognizing the right of public employees to join organizations of
their own choice and be represented by those organizations in
their employment relationships with public agencies.
(Emphasis added.)
Section 3502 provides, in part:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations.
(Emphasis added.)
The provisions of Sections 3500 and 3502 suggest that the power to enact restrictions
on the right of employees to be represented by labor organizations of their own choosing is
reserved to the state Legislature. (City of Gridley, at p. 198.) The "structure and history of the
[MMBA] suggest that the only limitations on the right of employees to participate in the
organization of their choice contemplated by the Legislature as 'reasonable' were procedural
rules relating to the mechanics of selection and recognition of representatives." In examining
Section 3507, the Court held that "the Legislature did not intend to grant local agencies the
power to adopt substantive rules that would interfere with employee choice." (City of Gridley,
at p. 200.) The Legislature's explicit mandate recognized the employees' right to choose their
own exclusive representative. (City of Gridley, at p. 200.)
Equally significant is the statutory mandate that the Board shall apply and interpret
unfair labor practices consistent with existing judicial interpretations of the MMBA. (Sec.
26

3509(b).) The Court of Appeal considered a challenge to the decertification rule of the Orange
County Superior Court, that required a showing of interest requirement of at least 50 percent of
employee signatures and a time allotment of 30 days to collect them before calling for a
decertification election. 	(Superior Court.) Although Superior Court involved application of
the California Rules of Court, rather than MMBA, the court expressly held that the rules at
issue were to be "applied and interpreted in accordance with judicial interpretations of
[MMBA] section 3507," and stated:
Accordingly, pursuant to the California Supreme Court's
interpretation of section 3507, we must decide if [the disputed
rule] is reasonable in light of the intent of the MMBA to provide
strong protection for the right of employees to be represented by
the union of their own choosing. • (City of Gridley, at pp. 199-
202, fn. 12.)
In the Superior Court decision, the Court first recognized that the purpose of the
showing of interest requirement is:
to save the time and expense of having an election if there is
insufficient employee interest; it is not intended to determine
what the employees ultimately desire. (See The Pike Co. and
Bricklayers and Allied Craftsman, Local No. 11 (1994)
314 NLRB 691, 691-692.)
(Superior Court, at p. 1395.)
The Court then found that the disputed showing of interest requirement was more
onerous and required greater support from the employees than what was needed to actually win
the election. It stated, in part:
Pursuant to [the disputed rule], signatures from 50 percent of all
the employees in a bargaining unit must be collected in 30 days to
simply call for a decertification election; in contrast, the
incumbent union will be decertified if a majority of those casting
ballots in a secret ballot election vote in favor of it. Such a rule is
neither consistent with protecting the right of employees to be
represented by unions of their choosing, nor with the purpose of
the showing of interest requirement in general. 	(See
27

- -
International Brotherhood of Electrical Workers v. City of
Gridley, supra. 34 Cal.3d at pp. 199-202.)
(Superior Court, at p. 1395; emphasis in original.)
When compared with the showing of interest requirement in 16 other local agencies
cited by SEIU, OCEA and Orange County Superior Court, the Court of Appeal determined that
the Orange County Superior Court requirement was the most onerous. 	It found that:
Monterey, Sacramento, San Mateo, Santa Barbara, Santa Clara,
Yolo and Yuba Counties and the Orange County Sanitation
District require that petitions for decertification elections be
accompanied by signatures from 30 percent of the employees in a
bargaining unit collected over a six-month period. Riverside and
San Berardino [sic] counties require signatures from 40 percent
of the employees collected in a 30-day period. San Luis Obispo
County requires a 40 percent showing of interest collected over a
year, and the City of Seal Beach requires a 40 percent showing of
interested collected over any time period. The cities of San
Diego and Richmond have the second most onerous showing of
interest rules, and require signatures from 50 percent of the
employees collected within a 90-day period.
(Superior Court, at p. 1396.)
The Court found that while such an increase protected OCEA's status as the incumbent
union, "rules or policies that might promote a stable labor environment cannot be used to
abrogate or circumvent the strong protection afforded the right of employees to be represented
by the union of their choosing." (Superior Court, at p. 1396, citing City of Gridley, at pp. 199-
202.) In weighing stability in labor relations against the rights of employees, the Court has
long established that:
Only the Legislature can determine whether the
established contractual relations outweighs the rights of workers
to decertify their bargaining representative. 	(See Bodinson Mfg.
Co. v. California E. Com. (1941) 17 Cal.2d 321, 325 [109 P.2d
935]; Estate of Horman (1971) 5 Cal.3d 62, 77 [95 Cal.Rptr. 433,
485 P.2d 785], cert. den. 404 U.S. 1015 [30 L.Ed.2d 662, 92 S.Ct.
672].) (Service Employees Internat. Union v. City of Santa
Barbara (1981) 125 Cal.App.3d 459, 467 [178 Cal.Rptr. 89].)
stability of
1
28

The evidence in the present case undisputedly shows that the County's decertification
petition signature requirement is identical to the invalidated showing of interest requirement of
the Orange County Superior Court. The evidence also demonstrates that the County's
decertification requirement differs markedly from those established under PERB. 	For instance,
both EERA section 3544.5(d)11 and HEERA section 3574(b)12 provide that a decertification
petition shall require only 30 percent support in order to create a question concerning
representation. By PERB Regulation sections 40200(b) and 32770(c), PERB has applied this
same standard under the Dills Act. For all three acts, PERB has established twelve months as
the time period during which proof of employee support remains valid (PERB Reg. 32700(b)).
In accordance with the statutory mandate under Section 3509(b) that the Board shall
apply and interpret the MMBA consistent with the existing judicial interpretations of the Act, I
would defer to the court's interpretation of the Orange County Superior Court's showing of
interest requirement in Superior Court. 	Since the showing of interest requirement is
completely identical to the decertification petition signature requirement in the present case, I
would adopt the Court's interpretation that such a requirement is onerous.
As demonstrated by the record, SEIU is deterred by the "difficulty" of the County's
existing decertification rule to embark on a petition to decertify an incumbent union,
subsequent to a failed decertification petition in recent history. 	The County's decertification
petition signature requirement has made it almost impossible to decertify an incumbent union
and elect a second labor organization. An incumbent union, such as AOCDS or OCEA in this
case, might readily agree to such a requirement because it renders the union safe from
EERA is codified at Government Code section 3540, et seq.
12HEERA is codified at Government Code section 3560, et seq
29

challenge. It is not unexpected that the signature requirement was increased from 30 to 50
percent in May 1990 partly at the request of Berardino of OCEA to create "a more stable labor
relations environment." The effect of such an augmented requirement would be to diminish
employee rights to select their own labor organization, as Philliou of SEIU testified at the
hearing. Given the limitations of the County decertification rule, Philliou concluded that it
would make pursuing different targets in the County very difficult. 	SEIU decided to wait for
PERB's determination on the reasonableness of the rule before engaging in any union
organization activities. This is unmistakable evidence that this rule interfere with employees'
right to join and participate in the activities of an exclusive representative of their choice, and
deters SEIU from representing bargaining unit employees.
Thus, the rule has a chilling effect on the exercise of the employees' right to join and
participate in the activities of the labor organization of their choice, and the labor
organization's right to represent bargaining unit members. 	I would find that the County rule is
not consistent with, and do not effectuate the declared intents and purposes of the MMBA as a
whole, and are therefore unreasonable within the meaning of the Act. I would therefore
conclude that SEIU has sustained its burden of proof in showing that the County
decertification rule is unreasonable, and accordingly, constitute a violation of the MMBA.
The County further argues that it did not unilaterally adopt the decertification rule, but
adopted them after giving SEIU an opportunity to meet and confer pursuant to Section 3507(a).
SEIU allegedly declined to meet and confer or attempt to change this rule for more than ten
years. However, the County's contention that SEIU has waived its right to oppose the
decertification rule by declining to meet and confer, must fail. 	The MMBA contains
declarations of organizational rights, and prohibitions against interference and discrimination,
30

such as those stated in Sections 3500, 3502 and .3506. The rights of employees to join and
participate in the activities of the labor organizations of their choice, and of labor organizations
to represent bargaining unit members are statutory rights which are not subject to mandatory
bargaining. "Insistence to impasse on a nonmandatory subject is a per se violation of the
EERA." (South Bay Union School Dist, v. Public Employment Relations Bd. (1991) 228
Cal.App.3d 502, 507 [279 Cal.Rptr. 135].) Accordingly, the County cannot insist to impasse
that SEIU give up their statutory right to represent bargaining unit employees, or that the
employees forsake their rights to join and participate in the activities of the labor organization
of their choosing.
The County must also show that SEIU waived its statutory right to represent bargaining
unit members in clear and unmistakable terms. 	(Oakland Unified School District (2005) PERB
Decision No. 1770, adopting ALJ proposed dec. at p. 48; Amador Valley Joint Union High
School District (1978) PERB Decision No. 74.) Even assuming that the County has given
sufficient notice to SEIU, the latter cannot be held to have waived its objection to the County's
unreasonable decertification rule by simply failing to respond to the County's proposal to
increase the decertification petition signature requirement, because the rule is not a mandatory
subject of negotiation. Thus, the County's defense that SEIU has waived its right to oppose
the decertification rule by declining to meet and confer is without merit.
I would submit that the County has violated Sections 3500, 3502, 3506 and 3507, and
PERB Regulations 32603(a) and (f) by maintaining an unreasonable rule pertaining to the
decertification petition signature requirement. The violation would thus be actionable and
remediable before this Board. The appropriate remedy in such cases would be to require the
31

County to rescind the unreasonable decertification petition signature requirement, and cease
and desist from enforcing it.
Pursuant to Section 3509(a), the Board under Section 3541.3(i) is empowered to:
. . . take any action and make any determinations in respect of
these charges or alleged violations as the board deems necessary
to effectuate the policies of this chapter.
The County should be ordered to meet and confer in good faith with SEIU and all other
appropriate employees organizations on the issue of adopting new and reasonable rules and
regulations providing for a reasonable decertification petition signature requirement.
Accordingly, as a result of the above-described violation, I would find the County to
have interfered with the right of employees to join and participate in an employee organization
of their own choosing in violation of Section 3506 and PERB Regulation 32603(a), and denied
SEIU its right to represent employees in their employment relations with a public agency in
violation of Section 3503 and PERB Regulation 32603(b). The appropriate remedy would be
to cease and desist from such unlawful conduct.
Finally, it is the ordinary remedy in PERB cases that the party found to have committed
an unfair practice be ordered to post a notice incorporating the terms of the order. Such an
order ordinarily is granted to provide employees with a notice, signed by an authorized agent
that the offending party has acted unlawfully, is being required to cease and desist from its
unlawful activity, and will comply with the order. Thus, it would be appropriate to order the
County to post a notice incorporating the terms of the order herein at its buildings, offices, and
other facilities where notices to bargaining unit employees are customarily posted. Posting of
such notice effectuates the purposes of the MMBA that employees be informed of the
resolution of this matter and the County's readiness to comply with the ordered remedy.
32

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 660,
Charging Party,
v.
COUNTY OF ORANGE,
Respondent,
ORANGE COUNTY EMPLOYEES
ASSOCIATION
and
ASSOCIATION OF ORANGE COUNTY
DEPUTY SHERIFFS,
Joined Parties.
UNFAIR PRACTICE
CASE NO. LA-CE-101-M
PROPOSED DECISION
(5/4/04)
Appearances: 	Altshuler, Berzon, Nussbaum, Rubin & Demain by Jonathan Weissglass and
Stacey M. Leyton, Attorneys, for Service Employees International Union Local 660; Wanda S.
Florence, Deputy County Counsel, for County of Orange; Donald L. Drozd, General Counsel,
for Orange County Employees Association; Olins, Hayes & Miller by Douglas F. Olins,
Attorney, for Association of Orange County Deputy Sheriffs.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that a county has unlawfully maintained excessively
stringent requirements for decertification petitions. 	The county denies any violation of law.
Service Employees International Union Local 660 (SEIU) filed an unfair practice
charge against the County of Orange (County) on December 20, 2002. The general counsel of
the Public Employment Relations Board (PERB) issued a complaint on April 10, 2003, to
which the County filed an answer on April 24, 2003. PERB held informal settlement
conferences on May 22, 2003, and (by telephone) on June 5, 2003, but the case was not settled.

On September 23, 2003, the Association of Orange County Deputy Sheriffs (AOCDS)
filed a motion for joinder as a party to the case. On October 2, 2003, the Orange County
Employees Association (OCEA) filed a similar application for joinder. 	Over SEIU's
opposition, OCEA and AOCDS were joined as parties by an order dated October 6, 2003.
PERB held a formal hearing on October 14-15, 2003. At the beginning of the hearing,
AOCDS filed a motion to dismiss the case, which was taken under submission. With the
receipt of the final post-hearing briefs on February 25, 2004, the case was submitted for
decision.
FINDINGS OF FACT
The County is a public agency within the meaning of Government Code section 3501(c)
of the Meyers-Milias Brown Act (MMBA) and PERB Regulation 32016(a).1 SEIU, OCEA
and AOCDS are employee organizations within the meaning of MMBA section 3501(b),
recognized employee organizations within the meaning of MMBA section 350l(b), and
exclusive representatives within the meaning of PERB Regulation 32016(b), representing units
of County employees.
The County has about 17,000 employees, almost all of them unionized. They work in
213 different County facilities, although most of them work within 10 miles of the civic center.
There are 14 bargaining units. SEIU represents a unit of about 500 employees. OCEA
represents 8 units with a total of about 12,000 employees. AOCDS represent a unit of about
1,800 employees.
Pursuant to MMBA section 3507, the County has adopted local rules within the
meaning of PERB Regulation 32016(c) for the administration of employer-employee relations.
The current local rules provide in Section 11 (Decertification Procedure), subsection A:
1 MMBA is codified at Government Code section 3500 and following. PERB
regulations are codified at California Code of Regulations, title 8, section 31001 and following.
22

During the 30 days beginning nine months before the expiration
of a unit's current Memorandum of Understanding, requests for
decertification of an Exclusively Recognized Employee
Organization may be submitted by employees, employee
organizations or Exclusively Recognized Employee
Organizations. The decertification requests should be submitted
to the Personnel Director and must be accompanied by a petition
-signe
--d by a
----t least 50 percen
--------t of the regular and probationar
----y
employees within the representation unit. The petitions must
contain: a) full printed name of employee, b) signature, c) date
signed. 	Signatures on the petition must have been obtained
within the 30 days prior to the date the request is submitted.
[Emphasis added.]
These local rules were adopted in May 1990.
The County's previous local rules, adopted in July 1984, required that a decertification
petition have signatures of "at least 30 percent of the regular and probationary employees
within the unit," obtained within the prior 30 days. Prior to that, the County's local rules,
adopted in March 1979, had required signatures of at least 30 percent of the regular and
probationary employees "obtained within the 90 days prior to the date the request is
submitted." Earlier local rules adopted by the County in 1969, 1970 and 1974 had similar
signature requirements of 30 percent in 90 days.
The signature requirement was raised from 30 percent to 50 percent in May 1990 at
least partly at the request of OCEA Assistant General Manager Dominick Berardino
(Berardino) to create "a more stable labor relations environment." At the hearing in this case,
Berardino explained that the higher requirement "discourages the idea" of decertification (or
"raiding," as he saw it). On April 3, 1990, the County had sent to SEIU for comment a copy of
the proposed revisions to the local rules, with a cover letter indicating that some revisions
would "modify provisions to avoid undue disruption." 	SEIU apparently did not respond.
SEIU filed a petition to decertify OCEA in at least one unit in 1997-98, but without
success. SEIU has not filed such a petition for any County unit since then. 	SEIU's Western
w3

Regional Organizing Director testified that, given the "difficulty" of the County's local rules,
SEIU is "waiting for this [PERB] process to unfold before we do much more down there."
ISSUE
1. 	Is the charge timely?
2. 	If so, do the County's local rules violate MMBA?
3. 	If so, what remedy is appropriate?
CONCLUSIONS OF LAW
Court of Appeal Decision
Looming large in the background of this PERB case is a court of appeal decision,
Service Employees International Union v. Superior Court (2001) 89 Cal.App.4 th 1390 [108
Cal.Rptr.2d 505] (Superior Court). In that case, SEIU successfully challenged the same
decertification signature requirement (50 percent in 30 days) that is at issue here.
In Superior Court, the Orange County Superior Court (Superior Court) had adopted in
May 1998 employee relations regulations that were substantially the same as the County's
local rules, including the same decertification signature requirement. In August 2003, SEIU
had submitted to the Superior Court a timely request for decertification elections in two units.
The request was accompanied by signatures obtained within the previous 30 days from 37
percent of the employees in one unit and 33 percent of the employees in the other. The
Superior Court rejected the request for failure to meet the 50 percent signature requirement.
SEIU filed a successful petition for a writ of mandate in the court of appeal, which
concluded that the Superior Court's signature requirement was unreasonable. The court of
appeal ordered the Superior Court to vacate its signature requirement and to adopt a reasonable
one. The court of appeal declined, however, to direct the Superior Court to conduct
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decertification elections upon signatures from 30 percent of the employees in a unit, or to
formulate any specific signature requirement for the Superior Court.
Presumably, the Superior Court has changed its signature requirement by now. The
County, however, has not changed its identical signature requirement.
MMBA and PERB Regulations
MMBA section 3507 has long stated in part:
A public agency may adopt reasonable rules and
regulations . . . for the administration of employer-employee
relations under [MMBA].
The local rules adopted pursuant to this section may cover a variety of employment relations
matters, specifically including recognition of employee organizations and access of employee
organization officers and representatives to work locations.
Prior to July 1, 2001, PERB had no authority to administer or enforce MMBA. On that
date, however, a new MMBA section 3509 became effective, stating in part:
(a) The powers and duties of the board [PERB] described in
[Government Code] Section 3541.3 shall also apply, as
appropriate, to this chapter [MMBA] and shall include the
authority as set forth in subdivisions (b) and (c).
(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 shall be processed as an unfair practice by the
board. The initial determination as to whether the charge of
unfair practice is justified and, if so, the appropriate remedy
necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations of this chapter.
(c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation,
recognition, and elections.
A new MMBA section 3510(a) added:
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The provisions of this chapter shall be interpreted and applied by
the board in a manner consistent with and in accordance with
judicial interpretations of this chapter.
PERB thus assumed quasi-judicial authority to enforce both MMBA and local rules adopted
under MMBA.
As effective on July 1, 2001, the amended MMBA did not explicitly give PERB
authority to address alleged conflicts between MMBA and local rules, but PERB found that
such authority was necessarily implied. PERB issued a new Regulation 32603(f), making it an
unfair practice for a public agency to
Adopt or enforce a local rule that is not in conformance with the
requirements of Government Code section 3507, 3507.1 and/or
3507.5 [of MMBA].
At the same time, PERB Regulations 32603(g) and 32604(e) made it an unfair practice for
public agencies and employee organizations to violate MMBA or any local rule adopted
thereunder.
In 2001, the Legislature confirmed in part the implied authority of PERB to address
alleged conflicts between MMBA and local rules. The Legislature added a new MMBA
section 3509(f), stating:
The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive.
Without expanding PERB's jurisdiction or authority, the Legislature thus made it clear that
PERB could find a local rule to be contrary to MMBA, as a defense to an alleged violation of
the local rule by an employee organization.
More recently, in 2003, the Legislature went further and added a new MMBA
section 3507(d), stating:
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Employees and employee organizations shall be able to challenge
a rule or regulation of a public agency as a violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive, of Section 3509.
The Legislature also added the following language to MMBA section 3509(a):
Included among the appropriate powers of the board are the
power to order elections, to conduct any election the board
orders, and to adopt rules to apply in areas where a public agency
has no rule.
The Legislature also amended MMBA section 3509(b) to refer to local rules adopted under
MMBA section 3507.5 (concerning management and confidential employees) as well as those
adopted under MMBA section 3507. The Legislature did not otherwise expand PERB's
jurisdiction or authority.
In general, it appears from these developments that the Legislature has acquiesced in
PERB's regulations but has been cautious about further expanding PERB's jurisdiction or
authority.
Most recently, effective February 2, 2004, PERB has revised its Regulation 32603(f) to
make it an unfair practice for a public agency to:
Adopt or enforce a local rule that is not in conformance with
MMBA.
The only change is that the regulation now refers to "MMBA" rather than to certain sections of
MMBA. The "adopt or enforce" language is unchanged.
Is the charge timely?
It is currently in dispute whether a six-month or a three-year limitations period applies
to MMBA unfair practice charges. PERB has used a three-year period (Sacramento Municipal
Utility District (2003) PERB Decision No. 1535-M), while a court of appeal has favored a six-
month period (Coachella Valley Mosquito & Vector Control Dist, v. California Public
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Employment Relations Bd. (2003) 114 Cal.App.4 th 46). The California Supreme Court has
recently agreed to review the issue, leaving it unsettled in the meantime.
Fortunately, in the present case it does not appear to matter which limitations period
applies, because no significant event occurred within either the six-months or the three years
before the charge was filed on December 20, 2002. Specifically, it appears that the County did
not "[a]dopt or enforce a local rule" within the meaning of PERB Regulation 32603(f) in either
period. The local rule in question was adopted in May 1990, and it apparently has not been
enforced since 1997-98, when SEIU last filed a decertification petition.
SEIU relies on a single case and a single theory to support the timeliness of its charge.
The case is Long Beach Unified School District (1987) PERB Decision No. 608 (Long Beach),
and the theory is one of a continuing violation. In Long Beach, PERB held that an employer's
regulation limiting a union's right of access to employees was a continuing violation, and that
the date on which the regulation was adopted or revised was immaterial. PERB added:
In reaching this conclusion, we find it unnecessary to
[state] that each act of enforcement constitutes a new and separate
cause of action. While this may be true, the [union] need not
demonstrate an attempt to violate the regulation in order to show
that the [employer] would enforce it.
PERB found that the union's unfair practice charge challenging the access regulation was
timely, even though the regulation had been adopted outside the limitations period, and
regardless of whether the regulation had been revised or enforced within the limitations period.
I conclude, however, that Long Beach can and should be distinguished from the present
case. It makes sense to treat an unreasonable access regulation as a continuing violation, given
that access is a continuing issue with a day-to-day and month-to-month effect on a union's
ongoing ability to represent employees and to conduct union business. It makes less sense to
treat an allegedly unreasonable decertification petition signature requirement as a continuing
8

violation, given that the requirement only comes into play on the relatively rare occasion when
a decertification petition is filed. Furthermore, as suggested in Long Beach, the only way to
test the enforcement of an unreasonable access regulation may be to violate it, and thus to risk
the disciplinary consequences. An unreasonable signature requirement, however, may be
tested without similar risk, simply by filing an arguably reasonable number of signatures
obtained in an arguably reasonable period of time.
MMBA section 3507(d) now specifically authorizes employees and employee
organizations to challenge local rules as MMBA violations. 	SEIU would apparently interpret
this section as authorizing any employee or employee organization to file a charge challenging
any local rule as unreasonable at any time, regardless of whether or not the rule had been
adopted, revised or enforced within the limitations period. 	Such an interpretation seems
inconsistent with the Legislature's cautious approach to expanding PERB's jurisdiction or
authority. At least when an employee organization wishes to challenge a decertification
petition signature requirement, it seems more appropriate to expect the organization either (a)
to file a charge with PERB when the requirement has been recently adopted or revised or (2) to
test the enforcement of the requirement by actually filing a decertification petition, and then to
file a charge with PERB if necessary.
I conclude that SEIU's unfair practice charge in this case was not timely filed. Given
that conclusion, it would be inappropriate for me to offer an opinion on the other issues in the
case. 	(Long Beach Community College District (2002) PERB Decision No. 1475.)
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is ordered that the complaint and the underlying unfair practice charge in Case
99

No. LA-CE-101-M, Service Employees International Union Local 660 v. County of Orange,
are hereby dismissed.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 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 California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
10

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Thomas J. Allen
Administrative Law Judge
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