National Union of Healthcare Workers (PERB 2249MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NATIONAL UNION OF HEALTHCARE
WORKERS,
Charging Party,
V.
SEID-UNITED HEALTHCARE WORKERS
WEST,
Respondent.
Case No. SA-CO-78-M
Request for Reconsideration
PERB Decision No. 2249-M
PERB Decision No.
2249a-M
July 16, 2012
Appearance: 	Weinberg, Roger & Rosenfeld by Vincent Harrington, Jr., Attorney, for
SEIU-
United Healthcare Workers West.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: 	This case is before the Public Employment Relations
Board
(PERB or Board) on a request for reconsideration by SEID-United Healthcare Workers
West
(SEIU)
of
the Board's decision in National Union
of
Healthcare Workers (2012) PERB
Decision No. 2249-M (Healthcare Workers). 	The underlying charge, filed June 29, 2009 by
National Union
of
Healthcare Workers (NUHW), alleged that SEID violated the Meyers-
Milias-Brown Act (MMBA) 1 when 	agents: 	(1) obtained unsupervised access to marked
ballots and otherwise interfered with balloting by bargaining unit members; (2) engaged in
physical and verbal threats toward bargaining unit members; (3) misrepresented information to
and (4) unlawfully destroyed and/or removed bargaining
members' personal property. 	Based on these allegations, PERB' s Office
of
General Counsel
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

dismissed NUHW's charge for failure to state a prima facie case. NUHW appealed the
dismissal.
On April 18, 2012, the Board issued its decision reversing dismissal of the charge, and
remanding the charge to PERB' s Office of General Counsel for issuance of a complaint. The
Board held that: (1) the appropriate standard for assessing conduct alleged to interfere with
employee rights freely to choose a representative or to constitute a serious irregularity in the
conduct of an election, is the totality of circumstances test; (2) the name of a person alleged to
be an agent of an employee organization is not an indispensable element in a prima facie case,
which must provide "a clear and concise statement of the facts and conduct alleged to
constitute the unfair practice;" (3) the following NUHW allegations state conduct which would
reasonably tend to interfere with or restrain voters, and the conduct does not merely involve
representations which voters would assess reasonably as mere electioneering puffery -- SEIU
agents '"pervasively falsely told members of the bargaining unit' that, as a consequence of
voting for NUHW, they would: [a] lose their health insurance; [b] lose their place on the
Kaiser Health Plan waiting list; [c] have their wages reduced to $8.00 an hour; or [d] lose their
jobs entirely;" and (4) alleged destruction and removal of unit members' personal property
although insufficient by itself to establish a prima facie case, should be assessed under the
totality of circumstances test as part of the overall conduct of SEIU.
SEIU requests reconsideration of the Board's decision on the following grounds:
( 1) the Board found sufficient NUHW' s allegations that persons not identified in the charge by
name acted as SEIU agents; and (2) the Board ignored "unrebutted" facts demonstrating there
was "no basis" for NUHW's allegations that SEIU threatened bargaining 	members
loss of benefits.
2

The Board has reviewed SEIU' s request for reconsideration. Based on this review and
the relevant law, the Board denies SEIU's request for reconsideration for the reasons discussed
below.
DISCUSSION
A request for reconsideration
of
a final Board decision is governed by PERB
Regulation 32410(a)2 which states, in pertinent part:
Any party to a decision
of
the Board itself may, because
of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date
of
service
of
the
decision
....
[The request] shall state with specificity the
grounds claimed and, where applicable, shall specify the page
of
the record relied on
....
The grounds for requesting
reconsideration are limited to claims that: (1) the decision
of
the
Board itself contains prejudicial errors
of
fact, or (2) the party has
newly discovered evidence which was not previously available
and could not have been discovered with the exercise
of
reasonable diligence. A request for reconsideration based upon
the discovery
of
new evidence must be supported by a declaration
under the penalty
of
perjury which establishes that the evidence:
(1) was not previously available; (2) could not have been
discovered prior to the hearing with the exercise
of
reasonable
diligence; (3) was submitted within a reasonable time
of
its
discovery; ( 4) is relevant to the issues sought to be reconsidered;
and (5) impacts or alters the decision
of
the previously decided
case.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly. (Regents
of
the University
of
California (2000)
Decision No. 1354a-H.) 	request for reconsideration is not simply an opportunity to
ask the Board to "try again." (Chula Vista Elementary School District (2004) PERB Decision
No. 1557a (Chula Vista).) PERB Regulation 32410(a) allows a party to request
reconsideration of a Board decision on only two limited grounds, which are: 	( 1) the decision
contains "prejudicial errors of fact"; and (2) the party requesting reconsideration has
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

discovered new evidence not previously available as supported by a declaration satisfying
stated criteria. These limited grounds for granting a request for reconsideration and the
"extraordinary" nature of a reconsideration proceeding preclude a party from using this process
to re-argue or re-litigate issues that have already been decided. (Chula Vista,· San Bernardino
Teachers Association, CTA/NEA (Cooksey) (2000) PERB Decision No. 1387.)
We note that a respondent seeking reconsideration of a Board decision reversing
dismissal of an unfair practice charge and remanding for issuance of a complaint faces
formidable obstacles. 	Our reconsideration standards focus solely on the facts, and in reviewing
sufficiency of factual allegations stated in an unfair practice charge we presume that facts
alleged by a charging party are true. (San Juan Unified School District (1977) EERB3
Decision No. 12 (San Juan).) Thus, when reviewing a dismissal, we assess only the legal
sufficiency of the charging party's allegations to state a prima facie case. 	We do not weigh
charging party's allegations against conflicting allegations of the respondent. 	That process,
deriving factual findings from conflicting factual allegations, is left to a hearing.
Reconsideration is appropriate under our procedures only where the challenged
decision "contains prejudicial errors of fact" or the party seeking reconsideration proffers "new
evidence not previously available" which it supports by a declaration. 	SEIU does not proffer
new evidence. Thus, SEIU must establish that the challenged decision contained prejudicial
errors of fact.
SEIU disputes the Board's decision not to require as a condition to stating a prima facie
case that the charging party state the name of any person alleged to be an agent of an employee
organization. 	We wrote on this issue in our decision:
3 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
4

We hold that the name
of
a person alleged to be an agent
of
an
employee organization or an employer is not an indispensable
element in a prima facie case. 	We reject a formulaic application
of
an oft-quoted statement from our decision in Ragsdale. [4 ] 	We
favor a more nuanced analysis turning on the elements
of
the
particular prima facie case. In Ragsdale, the Board itself adopted
the warning and dismissal letters
of
the Board agent as the
decision
of
the Board. We do not believe that in so doing the
Board then intended to adopt a statement from the Board agent's
warning letter as a litmus test for assessing the sufficiency
of
factual allegations. Our test for sufficiency
of
allegations was
and is set forth in our regulation, namely,
'a
clear and concise
statement
of
the facts and conduct alleged to constitute the unfair
practice.' (PERB Reg. 32615(a)(5).) The Ragsdale formulation,
that a 'Charging Party must allege with specificity who, what,
when, where and how'
of
the respondent's alleged violation may
be useful in explaining to a charging party how to plead a
violation, but is it is not a hurdle over which every charging party
must leap at the risk
of
dismissal.
Thus, where, as here, it is alleged that: (1) SEIU announces that
its agents will wear identification badges; (2) persons then appear
in the garb
of
SEID and wearing the identification badge
of
SEIU; (3) such persons say to voters that they are SEIU agents;
and (4) such persons' conduct tends to or does promote the
interest
of
SEID, we may conclude prima facie that the person is
an SEID agent without the need for the person's name.
	If
the
person's conduct is improper, it may be attributed prima facie to
SEIU.
Because NUHW did not allege the individual names
of
alleged
SEIU representatives, the Board agent dismissed without further
assessment the alleged conduct
of
the alleged SEIU agents.
Under the circumstances here, NUHW's inability to identify by
name the individuals involved did not require dismissal
of
the
charge.
(Healthcare Workers, at pp. l 	16.)
SEIU contends that by failing to require that NUHW identify by name the persons
alleged to be SEIU agents, the Board affords 	insufficient 	and relies
inappropriately on "vague and non-specific evidence." (Request for Reconsideration, at p. 3.)
Thus, asserts SEIU, "[ w ]ithout some greater specificity or particularity of an evidentiary
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944 (Ragsdale).
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nature, the SEIU is denied its rights to due process with respect to rebutting the claims made
by NUHW." (Id.) We disagree that these claims
of
SEIU state a prejudicial error
of
fact.
Rather they quite clearly dispute the appropriate legal standard for elements
of
a prima facie
case, 5 and thus are not appropriately raised on reconsideration.
SEIU next contends that the decision "ignores un-rebutted facts showing no basis for
the claim
of
'threat
of
loss
of
benefits' made by NUHW." (Request for Reconsideration,
at
p.
4) SEIU thus claims that the Board should have ruled conclusively in favor
of
SEIU in a
factual dispute over alleged campaign representations and conduct
of
SEIU. 	Given the posture
of
the case, both the Board agent and the Board itself were obliged to accord the presumption
of
truth to NUHW's allegations. (San Juan.) That SEIU proffered opposing, and even
unrebutted, allegations, does not oblige the Board agent or the Board conclusively to credit
such allegations and dispose
of
the charge by dismissal as though on summary judgment.
Rather, when confronted with conflicting factual claims, the Board agent must issue a
complaint. (PERB Reg. 32640.)6
5 By rejecting a formulaic application
of
the oft-quoted statement from Ragsdale ("who,
what, when where and how"), we do not suggest that such matters need not be considered in
assessing a prima facie case. Rather, we favor an analysis which focuses on the elements
of
the prima facie case, and the sufficiency of the charging party's allegations in respect to each
of
those elements. Here, the claimed pleading deficiency arose in the context
of
a charge
alleging that respondent engaged in threatening conduct directed toward employees supporting
the rival union in a heated election campaign. Requiring the charging party to provide the
names
of
the alleged perpetrators 	order to avoid dismissal is too high a pleading burden
given that charging party has alleged with sufficient factual detail both the conduct alleged to
constitute an unfair practice and the identity
of
the alleged perpetrators as SEIU agents. 	this
case proceeds to a hearing, NUHW will be obliged to prove its alleged facts by competent
testimony 	documentary evidence, including facts establishing that persons, if any, who
engaged in inappropriate conduct did so as agents of SEIU.
6 Our decisions permit a Board agent to consider allegations proffered by a respondent
in accordance with the requirements of PERB Regulation 32620(c). (United Educators
of
San Francisco (Banos) (2005) PERB Decision No. 1764 [board agent improperly relied on
respondent's position statement that was not signed under penalty of perjury].)
6

SEID campaigned in the election, inter alia, on a claim that if NUHW were to win the
election, the bargaining unit employees would lose their health benefits. NUHW' s charge
characterized this claim as false and threatening. SEID asserts that it provided unrebutted
evidence to the Board agent dispositive of this issue. Thus, reasons SEID, since SEIU's
evidence was unrebutted and dispositive, NUHW's allegation should have been dismissed.
SEID' s unrebutted evidence consists of a declaration submitted in August 2009 to the
Board agent with SEID' s position statement. In the declaration, the declarant authenticated
and interpreted documents purporting to establish health benefits received by bargaining unit
members. 	SEID claims that based on the declaration testimony, and appended documentary
evidence, the Board agent should have ruled against NUHW on the issue, and that the Board's
determination to reverse and remand violated PERB decisions authorizing a Board agent to
rely on information received from a respondent in assessing whether a charging party has
stated a prima facie case. We disagree.
Under our case law a Board agent investigating a charge may determine that facts
properly alleged by a respondent in accordance with PERB Regulation 32620(c), which are not
disputed by the charging party which has notice thereof, and which do not require a credibility
determination, are dispositive of an essential element of the prima facie case, and on that basis
dismiss the charge. (Fontana Teachers Association, CTAINEA (Alexander, et al.) (1984)
PERB Decision No. 416; Golden Plains Unified School District (2002) PERB Decision
No. 1489.) However, a Board agent may not resolve the meaning of ambiguous contract
provisions, nor accept legal conclusions advanced as allegations. (Eastside Union School
District 	984) 	Decision No. 466; Lake Tahoe Unified School 	(1993)
Decision No. 994.) We conclude that the declaration testimony tendered and relied upon by
SEIU did not provide a sufficient basis for the Board agent, or for the Board itself, to dismiss
•
7

outright NUHW's charge allegations that SEIU falsely claimed that were NUHW to win the
election that the employees would lose their health benefits, and by so claiming threatened
employees. A hearing is necessary and is the appropriate venue for resolving this issue.
Accordingly, we conclude that there was no prejudicial error of fact and deny reconsideration.
Finally, SEIU contends that the Board adopted and applied an incorrect legal standard
for assessing alleged campaign misrepresentations. This claim is beyond the scope of
reconsideration, which is limited to factual claims only.
In sum, we find no basis for granting SEIU' s request for reconsideration.
ORDER
The request of SEID-United Healthcare Workers West for reconsideration of the
Board's decision in National Healthcare Workers Union (2102) PERB Decision No. 2249-M is
hereby DENIED.
Chair Martinez and Member Dowdin Calvillo joined in this Decision.
8