San Francisco Housing Authority (PERB A420M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN FRANCISCO HOUSING AUTHORITY,
Employer,
and
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPE FITTING INDUSTRY, LOCAL UNION 38,
Exclusive Re resentative.
Case No. SF-UM-747-M
Administrative Appeal
PERB Order No. Ad-420-M
April 28, 2015
Appearances: Renne, Sloan, Holtzman & Sakai by Jonathan V. Holtzman and Genevieve Ng,
Attorneys, for San Francisco Housing Authority; Neyhart, Anderson, Flynn & Grosboll by
Benjamin K. Lunch, Attorney, for United Association
of
Journeymen and Apprentices
of
the
Plumbing and Pipe Fitting Industry, Local Union 38.
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by United Association
of
Journeymen and Apprentices
of
the
Plumbing and Pipe Fitting Industry, Local Union 38 (Local 38) from an administrative
determination (attached) dismissing Local
38's
unit modification petition filed on June 20,
2014, pursuant to the Meyers-Milias Brown Act (MMBA)1 and PERB
Regulation 61450(b)(3).2 Local 38's petition concerns work performed in and after October
2013 by maintenance mechanics employed by the San Francisco Housing Authority
(Employer) and placed in a bargaining unit represented by Laborers Union, Local 261
(Laborers). Local 38's petition avers, and seeks a PERB determination, that prior to October
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31000 et seq.

2013 the maintenance mechanic work was performed traditionally by Local
38's
plumbers and
steamfitters bargaining unit members, that in and after October 2013 and in contravention
of
this tradition the Employer assigned the maintenance mechanic work to a bargaining unit
represented by Laborers, and that the maintenance mechanic work should be reassigned to the
plumbers and steamfitters bargaining unit represented by Local 38.
Following its investigation, PERB's Office
of
the General Counsel determined that
PERB
's
unit modification procedures permit the transfer
of
positions or classifications between
bargaining units, but that petitions seeking such transfer must be filed jointly by all the affected
exclusive representatives. On this basis, PERB's Office
of
the General Counsel dismissed
Local 38's petition, which was filed only by Local 38 and not joined in by Laborers. Local 38
filed a timely appeal. The Employer and Laborers oppose the appeal.
We have reviewed the entire record, including Local
38's
petition and the Laborers'
response, correspondence to Local 38 from PERB's Office
of
the General Counsel, Local 38's
response, the ensuing dismissal, and the parties' submissions on appeal. Because the findings
set forth in the dismissal are supported by the record, we adopt them as the findings
of
the
Board itself. Similarly, because the conclusions
of
law set forth in the dismissal are well
reasoned and in accordance with applicable Board procedures and our decisions thereunder, we
adopt them as the conclusions
of
the Board itself, subject to our discussion below
of
the appeal
taken by Local 38.
PROCEDURAL AND FACTUAL HISTORY
On June 20, 2014, Local 38 filed a petition pursuant to PERB Regulations 61450(b)(3)
seeking "[t]o resolve a dispute as to unit placement or designation
of
a new classification or
position." The petition avers that since October 2013, the Employer has been hiring employees
into a maintenance mechanics classification, which has been added to a bargaining unit
2

represented by Laborers, and that the duties being performed by the maintenance mechanics so
hired are those traditionally performed by members
of
Local 38's plumbers and steamfitters
bargaining unit. The petition seeks a return to the alleged status quo existing prior to October
2013, to be accomplished by removal
of
the maintenance mechanic classification from the
Laborers bargaining unit.
By letter
of
June 24, 2014, to Local 38, PERB's Office
of
the General Counsel
informed Local 38 that PERB's unit modification procedure "is generally used to resolve a
dispute between an employer and an exclusive representative concerning the composition
of
that exclusive representative's own unit," and that instead Local 38's petition "seeks to modify
a different exclusive representative's bargaining unit." The letter also directed Local 38 to
"provide support for the proposition that PERB's unit modification process can be used to
delete represented classifications from a bargaining unit other than the petitioner's own."
On July 7, 2014, Local 38 replied to the June 24, 2014, letter stating that Local 38 did
not seek to transfer the maintenance mechanic position to its plumbers and steamfitters
bargaining unit, but rather seeks to transfer "the plumbing and steamfitting work performed by
l
maintenance mechanics or maintenance specialists back to its unit." Local 38 urged that the
requirement
of
a joint petition is inapplicable here because Local 38 seeks the transfer
of
work
rather than the transfer
of
the position or classification
of
maintenance mechanic. In addition
Local 38's reply stated that the remedy it seeks is consistent with prior PERB decisions
permitting transfer of classifications between bargaining units, citing San Diego Community
College District (2001) PERB Decision No. 1445 and Trustees
of
the California State
University (2007) PERB Decision No 1881-H (Trustees).
On July 11, 2014, Laborers notified PERB's Office of the General Counsel and the
parties by letter that there was then in effect a memorandum of understanding (MOU) between
3

Laborers and the Employer "covering the positions which [Local 38] seeks to extract from the
bargaining unit represented by Laborers," and urging that in consequence
of
the existence
of
the MOU, Local 38's "petition for unit modification is barred under PERB Regulations."
On September 26, 2014, PERB's Office
of
the General Counsel dismissed Local 38's
petition. The dismissal states, in pertinent part:
[Local 38] correctly states that PERB permits unit modification
petitions that seek to transfer classifications between bargaining
units, citing San Diego Community College District (2001) PERB
Decision no. 1445 as an exai-nple. However, such petitions must
be filed jointly by "[a]ll affected exclusive representatives"
pursuant to PERB Regulation 61450(c). (Modesto City School
District (1991) PERB Decision No. 884 ("Under PERB's unit
modification regulations .. , an exclusive representative may not
file a petition to add a position currently represented by another
exclusive representative to its bargaining unit.") The Laborers do
not join in the instant petition.
[Local 38] also cites Trustees
of
the California State University
(2007) PERB Decision No, 1881-H (Trustees). In that case, the
employer filed a petition to eliminate two existing classifications,
create a new classification combining duties
of
the abolished
classifications, and to resolve a dispute about the placement
of
the new classification within an existing bargaining unit. The ·
abolished classifications had belonged to two different bargaining
units. However, Trustees is inapposite. There, the new
classification was yet to be placed in any bargaining unit. In the
instant case, the classification at issue has been within the
Laborers bargaining unit since at least October 2013.
When the employees covered by a petition [for unit modification]
are currently represented, an employee organization unilaterally
desiring to represent them must file a decertification petition
pursuant to PERB Regulation 61350 et seq., or a severance
petition pursuant to PERB Regulation 61400 et seq. The litany
of
requirements contained within those provisions-including proof
of employee support, and restrictions on the timing of petitions-
would be undermined
if
a petitioner could file a unilateral and
hostile unit modification petition.
To the extent that [Local 3
8]
states that it is seeking to transfer
"work," rather than positions or classifications, a unit
modification petition is not appropriate. PERB unit modification
4

procedures concern the appropriate inclusion or exclusion
of
"positions" or "classifications" from a bargaining unit.
To the extent that [Local 38] argues the [Employer's] placement
of
the maintenance mechanic classification within the Laborer's
bargaining unit violated the MMBA, [Local 38] may file an
unfair practice charge. (Modesto City School District, supra,
PERB Decision No. 884.)
(Dismissal, pp. 2-3.)
On November 10, 2014, Local 38 filed its appeal from the dismissal.
On November 14, 2014, Laborers filed its opposition to the appeal.
On December 8, 2014, the Employer filed its opposition to the appeal.
PARTIES' CONTENTIONS ON APPEAL
On appeal, Local 38 reiterates its contention that PERB's unit modification
procedures are, or should be, available to a union seeking to challenge an employer's removal
of
work from its bargaining unit and placement
of
that work in a different bargaining unit.
Limiting unit modification petitions seeking to move positions or classifications between
bargaining units only to those petitions having approval
of
both the receiving and sending
union is unfair, claims Local 38, because the sending union would never consent.
Laborers opposes the appeal, rejoining that there are circumstances in which a sending
union would consent, and that in any event PERB lacks authority over an employer's
assignment of work which is an "internal matter" governed by contract between the union and
the employer.
The Employer likewise opposes the appeal, urging that Local 38's sole recourse to
challenge placement of the maintenance mechanic work in Laborers' bargaining unit was to
file a timely unfair practice charge, which it did not do, and that having failed timely to
challenge the work assignment under the appropriate unfair practice procedures, it may not
s

now resort to PERB' s unit modification procedures as these are inappropriate for the reasons
stated in the dismissal.
DISCUSSION
Local 38 claims on appeal that the dismissal misreads PERB regulations, because:
(1) Local
38's
unit modification petition need not be joined by the Laborers; and (2) unit
modification petitions are not limited to transfer
of
positions. We consider each claim.
Local 38 contends that PERB's Office
of
the General Counsel misreads PERB
Regulation 61450(c) 3 to the extent it considers Laborers an "affected" exclusive
representative. First, Local 38 urges that it is only itself which is an "affected" exclusive
representative within PERB Regulation 61450(c), because only Local 38 lost bargaining unit
work. Describing Laborers as the "beneficiary"
of
the Employer action which Local 38 here
challenges, Local 3 8 urges that requiring Laborers to join in the unit modification petition
produces an "absurd result," since the union having benefited from the challenged action
would never agree to join the petition.
Second, Local 38 proffers an alternative reading
of
the regulation, namely, that PERB
Regulation 61450(c) is inapplicable because what Local 38 seeks to transfer from the Laborers
3 PERB Regulation 61450. Petition.
Absent agreement
of
the parties to modify a unit, an exclusive
representative, an employer, or both must file a petition for unit
modification in accordance with this section. Parties who wish to
obtain Board certification
of
a unit modification may file a
petition in accordance with the provisions
of
this section.
(c) All affected exclusive representatives may jointly file with the
regional office a petition to transfer classifications or positions
from one represented established unit to another.
(Emphasis added.)
6

unit to its own unit is "work," and not a "classification or position." In support
of
its
alternative reading it cites to the dismissal's reliance on Modesto City School District (1991)
PERB Decision No. 884 for the proposition that what may not be added to a unit via a unit
modification petition is
"a
position currently represented by another exclusive representative."
(Dismissal,
p. 2;
emphasis added.)
We find neither rationale convincing. First, on the facts here Laborers clearly is an
"affected" exclusive representative in that
if
Local 3 8' s petition were granted, Laborers would
be affected. The language
of
PERB Regulation 61450( c) is "affected," not "adversely
affected." Accordingly, we reject Local 38's contention that Laborers is not an "affected"
exclusive representatives within PERB Regulation 61450(c). Second, PERB Regulation 61450
speaks
of
"classifications or positions" and not
of
"work." Therefore, a petition which seeks to
transfer "work" or a union's "jurisdiction over work," but not a "classification or position,"
fails to meet the requirements
of
the regulation.
Local 38 expands on its contention that "work" may be the subject
of
a unit
modification petition in its second point on appeal, viz., that such petitions are not limited to
transfer
of
positions, and that permitting Local 38's present petition would not undermine the
decertification process. The dismissal noted the potential for undermining the decertification
process implicit in this case in a footnote, as follows:
Unit modification petitions to add positions or classifications to a
petitioner's bargaining unit, increasing its size by ten percent or
more, require proof of majority support of the persons employed
in the positions or classifications to be added. (PERB
Regulation 61450(e)(l).) Petitions to delete a position or
classification from an established bargaining unit pursuant to
PERB Regulation 61450(b)(4) may not be filed during the term
of a lawful written agreement covering the position or
classification, except during the window period defined in PERB
Regulation 61010, Here the Petition states that the classification
at issue includes 28 to 30 persons, where its existing unit contains
only 9, though no proof of support was filed. No information is
7

provided about the status
of
any agreement between the Laborers
and the [Employer] at the time the Petition was filed. Therefore,
whether the Petition intends to add maintenance mechanics to
[Local 38 's] unit, or merely to delete them from the Laborer's
unit, it is deficient for these reasons in addition to those discussed
above.
(Dismissal, p. 2, fn. 2.) We concur.
Local 38 cites two Board decisions which it claims support the appropriateness
of
a unit
modification petition to affect a transfer
of
"work." We consider each.
In Trustees, supra, PERB Decision No. 1881-H, discussed in the dismissal, the Board
reviewed an administrative law judge's (ALJ) proposed decision resolving a dispute regarding
the appropriate unit placement for a new classification. The dispute concerned whether the
new classification was appropriately placed in Unit 7, clerical and administrative support
services, or in Unit 4, academic support. The ALJ had proposed to place the new classification
in Unit 4 as opposed to Unit 7, applying the rebuttable presumption test. (State
of
California
(Department
of
Personnel Administration) (1990) PERB Decision No. 794-S.) The Board
determined that rather than the rebuttable presumption test applicable when seeking to modify
a previously-Board-determined state bargaining unit, the appropriate test for adding a new
classification to an established unit was found in the Higher Education Employer-Employee
Relations Act (HEERA) section 3579,4 viz., analysis
of
the traditional unit determination
criteria such as "shared goals, training, working conditions, interchange with other employees,
etc." (Trustees.) 	Concluding that the evidentiary record developed at the hearing was
inadequate to this task, the Board remanded to permit augmentation
of
the record.
We do not read Trustees, supra, PERB Decision No. 1881-H as does Local 38. The
unit modification issue there presented clearly concerned a new "classification," not "work."
We thus find Local 38's contentions regarding Trustees unpersuasive.
4 HEERA is codified at Government Code section 3560 et seq.
8

In Regents
of
the University
of
California (2011) PERB Decision No. 2185-H
(Regents), not discussed in the dismissal, the Board reviewed an
ALJ's
decision resolving a
dispute regarding the appropriate unit placement for certain positions which were placed in the
system-wide clerical and allied services unit and the appropriate PERB regulation applicable to
the dispute. The employer proposed to remove the positions from the unit altogether on the
basis
of
reclassification utilizing PERB Regulation 32781 (b)(3) (resolution
of
dispute
regarding unit placement), while the union urged that the positions should
be
assigned to a
different classification within the unit utilizing PERB Regulation 3278l(b)(2) (clarification
of
unit description). The ALJ determined that the employer's contentions were the more
appropriate and applied PERB Regulation 32781(b)(3) to conclude that the positions should be
excluded from the unit. The Board affirmed.
Again, we do not read Regents, supra, PERB Decision No. 2185-H as does Local 38.
The unit modification issue there presented clearly concerned appropriate placement
of
existing·"positions," not "work." We thus find Local
38's
contentions regarding Regents
unpersuasive.
CONCLUSION
For the reasons set out above, as well as those set forth in the administrative
determination, we dismiss Local 3 8' s appeal.
ORDER
The administrative determination in Case No. SF-UM-747-M is hereby AFFIRMED.
Members Winslow and Banks joined in this Decision.
9

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite
1532
Oakland,
CA
94612-2514
Telephone: 510-622-1025
Fax: (510) 622-1027
September 26, 2014
Benjamin K. Lunch, Attorney
Neyhart, Anderson, Flynn & Grosboll
369 Pine Street, Suite 800
San Francisco,
CA
94104-3323
Re: 	Case No. SF-UM-747-M
San Francisco Housing Authority
DISMISSAL OF PETITION
Dear Mr. Lunch:
EDMUND
G.
BROWN JR.,
Governor
The above-referenced
unit
modification petition (Petition) was filed with the Public
Employment Relations Board (PERB
or
Board) on June 20, 2014
by UA
Local 38 (Petitioner),
which represents a unit
of
Plumbers and Steamfitters employed
by
the San Francisco Housing
Authority (Authority). The petition is filed pursuant to PERB Regulation 61450(b)(3),1 which
states:
(b) A recognized or certified employee organization, an
employer,
or
both jointly may file with the regional office a
petition for unit modification:
(3) To resolve a dispute as to unit placement
or
designation
of
a
new classification or position.
The Petition asserts that the Authority has, since October 2013, been hiring employees into a
"maintenance mechanic" classification, that has been added to a bargaining unit represented by
Laborers Union, Local 261 (Laborers). Petitioner asserts that the duties being performed
by
the maintenance mechanics
are
"traditionally performed by Petitioner's members," in the
Plumbers and Steamfitters unit. The petition itself states that it seeks to ''return to the status
quo ante," and appears to seek the removal
of
the maintenance mechanic classification from
the Laborers bargaining unit.
On June 24, 2014, this office directed Petitioner to provide support for the proposition that
PERB's unit modification process can be used to delete represented classifications from a
bargaining unit other than the petitioner's own. Petitioner filed a response on July 7, 2014
1 PERB regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. The MMBA is codified at Government Code section 3500 et seq. The text of
the MMBA and the Board's Regulations may be found on the Internet
at
www.perb.ca.gov.

SF-UM-747-M
September 26, 2014
Page2
stating that Petitioner is not actually seeking to transfer the maintenance mechanic position to
the Plumbers and Steamfitters bargaining unit. "Rather, Local 38 is interested in transferring
the plumbing and steamfitting work performed
by
maintenance mechanics or maintenance
specialists back to its unit." [Emphasis in original.]
Petitioner correctly states that PERB permits unit modification petitions that seek to transfer
classifications between bargaining units, citing San Diego Community College District (2001)
PERB Decision No. 1445 as an example. However, such petitions must be filed jointly
by
•~[a]ll
affected exclusive representatives" pursuant to PERB Regulation 61450(c). (Modesto
City School District (1991) PERB Decision No. 884 ("Under PERB's unit modification
regulations ... an exclusive representative may not file a petition to add a position currently
represented by another exclusive representative to its bargaining unit.") The Laborers do not
join in the instant petition.
Petitioner also cites Trustees
of
the California State University (2007) PERB Decision
No. 1881-H (Trustees). In that case, the employer filed a petition to eliminate two existing
classifications, create a new classification combining the duties
of
the abolished classifications,
and to resolve a dispute about the placement
of
the new classification within an existing
bargaining unit. The abolished classifications had belonged to two different bargaining units.
However, Truste,es is inapposite. There, the new classification was yet to
be
placed in any
bargaining
unit
In the instant case, the classification at issue has been within the Laborers
bargaining unit since at least October 2013.
When the employees covered
by
a petition are currently represented, an employee organization
unilaterally desiring to represent them must file a decertification petition pursuant to PERB
Regulation 61350 et seq.,
or
a severance petition pursuant to PERB Regulation 61400 et seq.
The litany
of
requirements contained within those provisions-including proof
of
employee
support, and restrictions on the timing
of
petitions-would be
undermined
if
a petitioner could
file a unilateral and hostile unit modification petition.2
2 Unit modification petitions to add positions or classifications to a petitioner's
bargaining unit, increasing its size
by
ten percent or more, require proof
of
majority support
of
the persons employed in the positions or classifications to be added. (PERB Regulation
61450(e)(l).) Petitions to delete a position or classification from
an.
established bargaining
unit pursuant to PERB Regulation 61450(b )(4) may not be filed during the term of a lawful
written agreement covering the position or classification, except during the window period
defined in PERB Regulation 61010. Here, the Petition states that the classification at issue
includes 28 to 30 persons, where its existing unit contains only 9, though no proof of support
was filed. No information is provided about the status
of
any agreement between the Laborers
and the Authority at the time the Petition was filed. Therefore, whether the Petition intends to
add maintenance mechanics to Petitioner's unit, or merely delete them from the Laborer's unit,
it is deficient for these reasons in addition to those discussed above.

SF-UM-747-M
September 26, 2014
Page3
To the extent that Petitioner states that it is seeking to transfer "work," rather than positions or
classifications, a unit modification petition is not appropriate. PERB unit modification
procedures concern the appropriate inclusion or exclusion
of
''positions" or "classifications''
from a bargaining unit.
To the extent that Petitioner argues the Authority's placement
of
the maintenance mechanic
classification within the Laborer's bargaining unit violated the MMBA, Petitioner may file an
unfair practice charge. (See Modesto
City
School District, supra, PERB Decision No. 884.)
For all
of
the above stated reasons, the Petition is hereby dismissed.
Right
of
Appeal
An appeal
of
this decision to the Board itself may be made within ten (10) calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
filed, the original and five (5) copies
of
any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento,
CA
95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; Gov. Code,§ 11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay
of
~y
activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If
a timely appeal is filed, any other party may file with the Board an original and five (5)
copies
of
a response to the appeal within ten (10) calendar days following the date of service
of
the appeal (Cal. Code Regs., tit. 8, § 32375).

SF-UM-747-M
September 26, 2014
Page4
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the LocName regional office. A
"proof
of
service" must accompany each
copy
of
a document served
upon
a party or filed with the Board itself (see Cal. Code Regs.,
tit. 8, § 32140 for the required contents). The document will be considered properly "served"
when personally delivered
or
deposited in the mail or deposited with a delivery service and
properly addressed. A document may also
be
concurrently served via facsimile transmission
on all parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time in which to file an appeal or opposition to an appeal with the
Board itself must
be in
writing and filed with the Board at the previously noted address. A
request for an extension must
be
filed at least three (3) calendar days before the expiration
of
the time required for filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied
by
proof
of
service
of
the request upon each party (Cal. Code Regs., tit. 8, § 32132).
Sincerely,
Daniel~
Regional Attorney
DT
cc: 	Genevieve Ng, Attorney
Stewart Weinberg, Attorney
Barbara Smith, Executive Director