San Diego Metropolitan Transit System * * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * (PERB A441M)

* * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT
LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * *
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA
SAN DIEGO METROPOLITAN TRANSIT
SYSTEM,
Employer,
and
PUBLIC TRANSIT EMPLOYEES
ASSOCIATION,
Petitioner,
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 465,
Exclusive Representative.
SMCS Case No. 15-3-514
PERB Case No. LA-DP-425-M
Administrative Appeal
PERB Order No. Ad- 441-M
September 20, 2016
Appearance: Raul “Kiko” Diaz, Business Representative, for International Brotherhood of
Electrical Workers, Local Union 465.
Before Winslow, Banks, and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by International Brotherhood of Electrical Workers, Local
Union 465 (IBEW Local 465) from a hearing officer’s recommendations (attached) to dismiss
without a hearing IBEW Local 465’s objections to a representation election conducted by the
State Mediation and Conciliation Service (SMCS), and for SMCS to certify the Public Transit
Employees Association (Association) to replace IBEW Local 465 as the exclusive
representative of employees in the Trolley Unit of the San Diego Metropolitan Transit System

________________________
(System). 	IBEW Local 465’s election objections focused primarily on a conversation
allegedly occurring during the two-week election period in which an auxiliary supervisor
encouraged a bargaining-unit employee, with as many as ten other bargaining-unit employees
present, to vote for the Association.
1
The hearing officer determined that the alleged conduct
did not raise substantial and material issues of fact warranting an evidentiary hearing because,
even if proven, the factual allegations supporting this objection would not have affected the
outcome of the election, which the Association won by a margin of 38 votes. The hearing
officer relied on similar reasoning regarding IBEW Local 465’s objection to the inclusion of
five auxiliary supervisors in SMCS’s proof of support determination since, even without the
five auxiliary supervisors, at least 30 percent of unit employees had signed the decertification
petition calling for an election. The hearing officer determined that two other objections either
lacked sufficient information to raise substantial and material issues of fact warranting an
evidentiary hearing and/or were untimely.
2
The System is a transit district established under the Public Utilities Code, which
includes its own scheme for administering labor relations separate from the Meyers-Milias-
Brown Act and other PERB-administered statutes. (Pub. Util. Code, §§ 120500-120509; see
also San Diego Trolley, Inc. (2007) PERB Decision No. 1909-M, adopting dismissal letter at
p. 4.) Public Utilities Code section 120505 confers jurisdiction on SMCS, rather than PERB,
to investigate and issue determinations on questions concerning representation, including
objections to the conduct of a representation election or to conduct allegedly affecting the
result of such an election. (Pub. Util. Code, § 120505; see also 8 Cal. Code Regs. § 93070.)
Thus, while PERB does not itself administer labor relations under the Public Utilities Code,
when the Legislature transferred jurisdiction over the SMCS from the Department of Industrial
Relations to PERB in 2012, it conferred on PERB jurisdiction to consider appeals from SMCS
decisions. (Gov. Code, § 3603, subd. (a); 8 Cal. Code Regs. § 93025, subd. (d); San Diego
Trolley, supra, PERB Decision No. 1909-M.)
1
As memorialized in Article 2 and other provisions of the Collective Bargaining
Agreement between the System and IBEW Local 465, auxiliary supervisors are bargaining-unit
employees who are temporarily assigned to perform supervisory duties. While working as an
auxiliary supervisor, employees shall not perform a dual role of bargaining unit member and
non-bargaining unit member and must wear specific clothing designating their supervisory
status.
2
2

Having reviewed the case file in its entirety in light of the issues raised in IBEW
Local 465’s exceptions, we conclude that the hearing officer’s recommendations are in
accordance with PERB regulations and applicable private-sector precedent. Pursuant to
California Code of Regulations, title 8, section 93070, subdivision (f), the Board adopts the
recommendations of the hearing officer issued under subdivision (d) of the regulation as its own
Decision, subject to the following discussion of issues raised by IBEW Local 465’s exceptions
before the Board.
DISCUSSION
When interpreting the PERB-administered statutes, private-sector precedent established
under the National Labor Relations Act (NLRA), 29 U.S.C. section 151 et seq., and
California's Agricultural Labor Relations Act, Labor Code sections 1140-1166.3, may provide
persuasive authority for interpreting parallel or comparable statutory provisions. (Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 617; Capistrano Unified School
District (2015) PERB Decision No. 2440, p. 35.) However, the Public Utilities Code expressly
requires SMCS to resolve questions concerning representation in accordance with federal
administrative and judicial precedent. (Pub. Util. Code, § 120505.) In considering IBEW
Local 465’s exceptions, we therefore follow our own decisional law only to the extent it is
consistent with private-sector precedent. For the most part, IBEW Local 465’s exceptions
before the Board repeat the points previously made before the hearing officer. It argues, for
example, that an auxiliary supervisor’s campaigning while in uniform renders the entire
election process unfair and therefore warrants at least a second vote by the employees. We
disagree. Assuming an employee is acting in a supervisory capacity at any time while wearing
the supervisor uniform and that it was therefore improper for an auxiliary supervisor to attempt
3

to influence employee choice, even while the supervisor was ostensibly on his break, the facts
alleged by IBEW Local 465, if proven, still do not involve a sufficient number of employees to
have affected the 38-vote margin by which the Association won the election. (Mid-Wilshire
Healthcare Ctr. (2007) 349 NLRB 1372, 1373–1374; Harborside Healthcare, Inc. (2004)
343 NLRB 906, 906–907.)
IBEW Local 465 also reiterates its argument that SMCS should not certify the
Association as the exclusive representative of System employees because, according to IBEW
Local 465, the Association fails to qualify as a “labor organization” within the meaning of the
NLRA. The hearing officer determined that this issue was untimely and declined to consider its
merits.
We decline to adopt the hearing officer’s determination that the issue was untimely.
The election supervisor’s report was served on the parties electronically and by mail on April 13,
2016. Under PERB Regulation 93070, subdivision (c), Local 465 had ten days from the date of
issuance of the report to file exceptions. Pursuant to PERB Regulation 32130, subdivision (c),
this deadline should have been extended by an additional five days because the election
supervisor’s report was served by mail. Five days after April 25, 2016 was April 30, 2016,
a Saturday, meaning that the deadline must be extended to the following business day pursuant to
PERB Regulation 32130, subdivision (b). Because Local 465 raised the issue on April 29,
2016, the exception was timely raised and properly before the hearing officer for consideration.
Although we conclude that the exception was timely, we reject it on its merits. The
statutory definition of “labor organization” includes “any organization of any kind, or any
agency or employee representation committee or plan, in which employees participate and which
exists for the purpose, in whole or in part, of dealing with employers concerning grievances,
4

labor disputes, wages, rates of pay, hours of employment, or conditions of work.” (29 U.S.C.
§ 152 (5).) The definition is construed broadly so that almost any group which deals with the
management concerning employees’ wages and working conditions is a “labor organization.”
(Independent Circulation Union v. Item Co. (E.D. La. 1958) 163 F.Supp. 399, 401–402; NLRB v.
Cabot Carbon Co. (1959) 360 U.S. 203, 210–213.) An organization’s alleged failure to comply
with financial disclosure requirements under the Labor Management Reporting and Disclosure
Act does not preclude it from having status under the NLRA as a labor organization entitled to
represent employees. 	(Family Service Agency San Francisco v. NLRB (D.C. Cir. 1999)
163 F.3d 1369, 1383–1384.) Accordingly, we find this exception without merit.
Additionally, we find it unnecessary to address IBEW Local 465’s other exceptions
before the Board as they raise no issues that were not already adequately considered in the
hearing officer’s determination.
ORDER
International Brotherhood of Electrical Workers, Local Union 465’s exceptions to the
hearing officer’s recommendations in Case No. SMCS 15-3-514 are hereby DENIED.
Members Winslow and Gregersen joined in this Decision.
5

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los
Angeles Regional
Office
700
N,
Central Ave.,
Suite
200
Glendale,
CA
91203-3219
Telephone:
(818) 551-2806Fax:
(818)
551-2820
May 9, 2016
Loretta van d~r
Pol;
Chief
California State Mediation and Conciliation Service
1330 Broadway, Suite 1532
Oakland,
CA
94612-2514
Re: 	· San Diego Metropolitan Transit System
SMCS Case No. 15-3-514
HEARING OFFICER'S RECOMMENDATION
Dear-Ms. van der Pol:
EDMUND
G.
BROWN
J'R.,
Gevernor
The undersigned Hearing Officer was appointed pursuant to PERB Regulation 93070 by the
State Mediation and Conciliation Service (SMCS)
1
for the purposes
of
making the instant
recommendation regarding the exceptions to SMCS
's
report on decertification election
objections filed by the incumbent union, Brotherhood
of
Electrical Workers Union, Local- 465
(IBEW). Having examined the exceptions to IBEW's objections, the Hearing Officer finds the
conduct alleged to affect the outcome
of
the election raises no substantial and material factual
disputes that would warrant an evidentiary hearing. The Hearing Officer recommends that
SMCS take further action to certify the petitioning employee organization, Public Transit
Employees Association (PTEA) as the exclusive representative
of
the Trolley Unit at
Metropolitan Transit District (District).
2
3 	.
PERB regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. The text
of
PERB's regulations may be found at www.perb.ca.gov. ·
1
2 SMCS is a division
of
the Public Employment Relations Board (PERB or Board).
The District is governed under the Public Utilities Code which provides at section
120505, in pertinent part:
3.
If
there is a question
of
whether a labor organization represents a
majority
of
employees or whether the proposed unit is the
appropriate unit for collective bargaining,
the question shall be
submitted to the State [Mediation and]
Conciliation Service for
disposition. [
...
]
The service shall provide for an election to determine the
question of representation and shall certify the results to the
p~ies.
(~talics added.)

May 9, 2016
Page 2
BACKGROUND
from PTEA seeking to decertify IBEW
as the exclusive representative
of
District employees in the Trolley Unit.
SMCS
determined
that there were sufficient employee signatures to support a decertification election and, on
March 14, informed the parties that an "election is appropriate and ought to proceed without
delay." After requiring an election notice to be posted by the District, SMCS conducted a
secret mail ballot election, with ballots mailed on March
24
and due to be returned
to
SMCS by
April
9.
On April 11, SMCS issued a "Tally of Balloting" thatrevealed PTEA received the
majority
of
valid.
votes:,
calcul~ted
as
follows:
On or about March
1,
2016,4 SMCS received a petition5
·
1.	
Approximate number
of
eligible voters: 	368
2. 	Void ballots 	2
3. 	Votes cast for IDEW Local 465	
112
4.	
Votes cast for
PTEA 	150
5.	
Votes cast for No Organization 	8
6.	
Valid votes counted (sum
of
3 and 4 and
5)	
270
7.	
Challenged ballots . : .	
[O]
8.	
Valid votes counted
...	
270
9.	
A majority of valid votes
...
_equals	
136
On or about April 11, IBEW filed objections that asserted, in relevant part:
On March 24, 2016 at approximately 1:50[ ]pm there was
an
employee who was representing MTS Supervision [sic] who,
while on the.Company's time and wearing an Auxiliary
Supervisor unifonn, was actively campaigning for the
decertification of IBEW Local 465 in favor of PTEA to one of
IBEW's members.
On April 13, SMCS issued a report rejecting IBEW's objection. On April 21, IBEW filed
exceptions to the report with SMCS requesting SMCS to conduct an investigation regarding
the District's conduct during the.election, including:
4 All subsequent dates refer to 2016, unless otherwise specified.
5 The petition was submitted to SMCS after it was erroneously submitted to PERB.

May
9, 2016
Page
3
• 	Five Auxiliary Supervisors who signed the decertification petition should not have been
counted
by SMCS
towards satisfying the
30%
proof
of
support requirement. Auxiliary
Supervisors
are
not subject
to
the memorandum
of
understanding between
IBEW and
the District when in their role
as
supervisors.
•	
On
March 24, Auxiliary Supervisor
Dwayne
Greer, while in his uniform "designated
for Supervision," spoke favorably of PTEA
to an
employee (Martin Ellison), in the
vicinity of "10
or
more employees"
who
were within "earshot" of the conversation, but
choose
to
remain unnamed "out of fear ofretaliation"; despite IBEW complaints
to
the
petitioner Dan Bridges, IBEW was
advised,
on
March 25, that Auxiliary Supervisors
may communicate with employees concerning the petition while on their breaks.
• · An "anonymous bulletin" with
the acronym "TEAM" (i.e., Trolley Employee
Associated Member)
was
removed
from
the "break room walls," but PTEA's election·
materials remained posted;
.
·
On
April
25,
in response
to
questions concerning Auxiliary Supervisors, the District informed
SMCS as
follows:
1.	
Auxiliary Supervisors
do
pay dues while in
Aux·
[sic]
capacity, as they alternate between being a supervisor and
mechat1ic on
a frequent basis (sometimes daily, weekly or
monthly), depending on the needs of the operation.
2.	
While serving in the Aux [sic] capacity, they are [considered]
full[y] functioning supervisors.
3.	
Attached are the job descriptions for two of them
[(Transportation Supervisor and LRV Maintenance
Supervisor).]
On April 27, SMCS appointed the undersigned Hearing Officer to examine IBEW' s exceptions
and make recommendations pursuant to PERB Regulation 93070. On April 28, the
undersigned received a copy of the file in the above-captioned matter. On April 29, IBEW
submitted to SMCS an unsolicited
state:n.ient
containing additional arguments.·
·
DISCUSSION
Where a party to an election files objections to the conduct of the election or conduct affecting
the result of the election within the five day period following the tally of the ballots, the 'SMCS
election supervisor must investigate such objections and issue a report on such objections to
the parties. (PERB Regulation 93070, subd. (a).) Within 10 days of issuance of the report, any
party may file with the SMCS election supervisor "exceptions" to the report (PERB Regulation
93070, subd·. (c)). Subsequently, SMCS must appoint a hearing officer to make a
recommendation to the SMCS election supervisor regarding whether the exceptions "raise
substantial and material factual issues with respect to the conduct of the election or conduct

May 9,"2016
Page 4
affecting the results
of
the election"
(PERB
Regulation 93070, subd. (d)).
If
it appears
to
the
hearing officer that any exceptions filed
to
the report
on
objections raise substantial and
material factual issues, then the hearing officer must notice the parties, conduct
an
evidentiary
hearing, and after the close of all evidence, issue a proposed decision.
(PERB
Regulation
93070, subd. (e).) Any party may appeal the hearing officer's recommendation and/or
proposed decision to the Board itself.
(PERB
Regulation 93070, subds.
(d) and (e).) A party
challenging a representation election is entitled
to
an evidentiary hearing where its objections
raise substantial and material issues of fact
and
objecting party proffers evidence that
establishes prima facie case
for
setting aside an election.
(Van
Leer Containers,
Inc.
v.
NLRB
(7th_
Cir. 1988)
841
F.2d 779, on remand.)
Moving
to
the merits of the election objection, Public Utilities Code, section 120500 provides
that the District "shall not express
any
preference
for one
union over another."
PERB
routinely interprets similar language under
th~
Meyers-Milias Brown Act (MMBA) and other
statutes that PERB is
charged'with enforcing. 	(See, e.g.,
Gov.
Code§ 3506.5.)
··
Thus, PERB
case law will be treated herein
as
analogous guidance. PERB' s inquiry in ·similar
cas~s
is
whether the employer's conduct interfered with the employees' right to choose a
repre_sentative. (West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M.)
Under PERB's jurisprudence; an election will be set aside only when the conduct actually
affects, or has a natural and probable effect on, employee free choice. (Ibid.) The conduct
need not constitute an unfair practice to set aside the election. (Ibid.) Conversely, conduct
amounting to an unfair practice does not necessarily require the election to be set aside. (Ibid,)
So, the question in such cases is whether the employer's conduct would reasonably tend to
coerce or interfere with employee choice. (County
of
Imperial (2007) PERB
DeC?ision
No. 1916-M; Pleasant Valley Elementary School District (2004) PERB Order No. Ad-333
[objecting party must show that there was improper conduct and that conduct had an objective
impact on voters].) Similar standards are applied under federal authority. (See e.g., Sonoco
Products
Co.
v.
NLRB (9th Cir. 1971) 443 F.2d 1334 [in determining necessity
of
setting aside
representation election, question is whether employees
have·
been prevented from freely
registering their choice of bargaining representative]; NLRB
v.
Monark Boat
Co.
(8th Cir.
1983)
713
F,2d 355 [NLRB must set aside
an
election
if
an atmosphere of coercion and fear
rendered free choice impossible].)
6
·
PERB also sets aside elections when it is determined that the election supervisor commits an
act that tends to destroy confidence in the election process, or could be reasonably interpreted
as
impugning the. election standards the Board seeks to maintain. (Poway Unified School
District (2000) PERB Order No. Ad-306 (Poway USD),
relying on Athbro Precision
Engineering Corp. (1967) 166 NLRB No. 116.) Election objections regarding the integrity of
the election process require assessment of whether a reasonable possibility of irregularity .
e~ists. · (Poway USD,
supra, PERB Order No. Ad-306.) Since this is paramount, "the Board
The MMBA is codified at Government Code sections 3500 et seq. When
construing MMBA and other California public sector labor relations statutes, California courts
and PERB rely on cases construing similar language in the National Labor Relations Act.
(Fire Fighters Union
v.
City of Vallejo (1974) 12 Cal.3d 608.)
6
·

May
9,
Z016
Page 5
goes to great lengths to ensure that the manner in which elections
are
conducted
r.aises
no
.reasonable doubt
as to
their fairness or validity," However, "an election need not
be
perfect
to
be
valid. (Ibid.) Mistakes
are made in
any
human endeavor. (Ibid.) The
questi_on
is
whether
the mistakes were sufficient to affect the outcome of the election,
(State
o/Cali/ornia
(Departments
of
Personnel Administration, Developmental Services, and Mental
Health)
(1986) PERB Decision
No.
601-S (ptate
of
California).)' An evidentiary hearing in regard
to
election irregularities
is_not
required where the labor board finds the alleged charges to be
without merit. (LTV Electrosystems,
Inc.·
v.
NLRB
(4th Cir 1968)
388
F.2d
683,
certiorari
denied
393
U.S'.-
843.) 	. 	.
. 	I. 	Inclusion of Auxiliary Supervisors in SMCS' s ·Proof
of
Support
Determination 	·
· IBEW's first exception argues that the Auxiliary Supervisors should not have been included in
the proof of support determination to meet
the 30% threshold for
SMCS to schedui.e an
election. PERB.Regulation 93015, subdivision
(a)
provides that a question concerning
representation
is
raised when the petition shows proof
of
employee support of "at least
30
percent of
the
employees in the propused unit." After· conducting
an
investigation under the
auspices of PERB Regulation
93025,.
SMCS
informed the parties on March
14
that
th~re
was a
sufficient showing
of
interest to satisfy the 30 percent threshold needed for the decertification
election. PERB Regulation 93025, subdivision (
d)
provides that any administrative
determination made.by SMCS is
subject to appeal
to the Board itself within the deadline set
forth in PERB Regulation 32360, subdivision (b), i.e., "10 days following the date of service of
the decision or letter of determination," In the present case, the
SMCS
determination of
whether a question concerning representation exists was not appealed to the Board itself.7
Nonetheless, tμming
to the substance of IBEW's challenge
to the SMCS
proof of support
determination, there are approximately 40 Auxiliary Supervisors, but only five
of which signed
proof of support documents with the decertification petition. Accordingly, SMCS's March
14
letter det~rmined that the five Auxiliary Supervisors "did not alter the outcome on meeting the
30% threshold." So, even
if
it was the case that the Auxili'ary Supervisors' signatures were not
cbunted, SMCS would still have reached the sanie determination concerning the sufficiency of
support.
As the election
results-
reveal, a majority of employees have cast their ballots in favor of PT~A,
and there are no facts to show that there was any irregutarity in that process. Thus, there are
no groμnds for setting aside the election, because SMCS' s determination of sufficient support
·'for
an election-··even
if
improper-did not impact the integrity of the election process or affect
the outcome of the election.
7 Chapter 9 of PERB's Regulations(§ 93000 et seq.) governs election procedures for
specified transit districts, including the District These regulations do not specify the types of
election objections that are to be entertained by SMCS and the Board. It appears that the
proper avenue for challenging a proof of support determination is through the appeal process
set forth in PERB Regulation 93025, subdivision (
d), not through the filing of objections.
IBEW has not invoked.the appeal process under PERB Regulation 93025, subdivision (d).

May 9, 2016
Page6
ll. 	The Effect Auxiliary Supervisor's Support for PTEA Had On the Outcome
of the Election
IBEW's second exception asserts that, given
Mr.
Greer's supervisor uniform,
he was
acting
as
a supervisor on the District's behalf when campaigning in favor
of
PTEA to an employee,
.while in the vicinity
of''l0
or more employees"
who
were within "earshot"
of
the
conversation. !BEW contends
Mr.
Greer
was
acting within the scope
of
his authority
as
a
"supervisor" when speaking with the employee in favor
of
PTEA.
Common law agency rules apply in the present case. PERB and the National Laqor Relations
Board (NLRB) have adopted the.principals
of
agency to determine liability
of
a charged party
for the unlawful acts of its employees or representatiyes even
if
the principal is not at fault and
takes
no
active part in the action. (Inglewood Unified School
Dis.trict
(1990) PERB Decision
No. 792;AlleganyAggregates,
Inc.
(1993)
311
NLRB 1165.)
An agent has such authority
as
the principal, actually or ostensibly, confers upon that agent.
(Civil Code, § 2315.) Actual authority "is that which an employer intentionally confers upon
the agent, or intentionally or negligently allows the agent
to
believe himself or herself to
possess." (Chula
Vista
Elementary School District (2004) PERB Decision No. 1647; see also
Civii Code,§ 2316.) Apparent or ostensible authority, on the other hand, is that which·an
employer, "intentionally or by want of ordinary care, causes or allows a third person
to
believe
the agent to possess." (Civil Code, § 2317.) Apparent or ostensible authority may
be
found ·
wh.ere
an employer "allows employees to perceive that it has authorized the agent to engage in
the conduct in question." (Chula Vista Elementary
Scho.ol
District, supra, PERB Decision No.
1647, citing Inglewood
Teae.hers
Assn.
v.
PERB (1991) 227 Cal.App.3d 767.) Ostensible
·authority may be established when other representatives
of
the employer subsequently ratify or
demonstrate approval of the agent's conduct. (Compton Unified School District (2003) PERB
Decision No. 1518.)
In San Diego Unified School District (1980) PERB Decision No. 137, PERB held that two
individual school board members were acting
as
agents of the school district when they
authored commendation letters addressed
to
the District's teachers who did not participate in a
strike. Among the factors the Board noted in holding the District liable for the board
members' conduct, included the fact that the letters were written on District stationery, the
authors were identified by title as school board members, District managers authorized
placement of the letters in the teachers' personnel files, and the three other school board
members who did not sign the letters failed to take any subsequent action to
have·
the 'letters
removed. (Ibid.) There was no finding of "actual authority;" rather, the Board concluded that
"[u]nder these circumstances employees in the District had reasonable cause to believe that the
District's personnel were acting with authority of the employer and the District is liable for
their actio~s." (Ibid.)
The Board's decisions in Chula Vista Elementary School District, supra, PBRB Decision No.
1647 and Compton Unified School District, supra, PERB Decision No. 1518, involved
unlawful conduct by school principals-persons who are management employees of a school
district, and thus, meet the test for ·"actual agents." In addition, in both cases the Board found

May
9,
2016
Page_
7
that these school principals were.acting within the scope
of
their employment when they
engaged in the conduct at issue, and that
it
was reasonable for other empioyees to conclude that
these school principals were authorized by the employer
to
engage in that conduct, i.e., that
they had apparent or ostensible authority.	
(Ibid.)	
Consequently, the Board concluded that the
school districts were liable for the unlawful conduct. (Ibid.)
In County
of
River.side
(2010) PERB Decision
No.
2119-M, PERB held that certain anti-union
statements made by three members of a county board of supervisors constituted an unlawful
threat to eliminate jobs
if
the employees continued their union organizing efforts. While the
decision does hot contain any express analysis of the agency issue, the decision notes that these
statements were
·made
in
.an
official, public meeting of the board
of
supervisors, and that they
were.clearly made in the supervisors' official capacities.
In contrast, the Board in
West
Contra
Costa County Healthcare District (2011)
PERB
Decision
No. 2164-M, upheld the dismissal of an unfair practice charge alleging that the nature of a lead
worker's duties created a reasonable basis
for
employees
to
believe he was acting on behalf of
the employer when he circulated an anti-incumbent petition during a decertification election..
Public Utilities Code section 120500 guarantees covered employees the ''right
to form,
join, or
assist labor organizations ... and to engage in other concerted activities
....
" Auxiliary
Supervisors pay union dues while
in-
such capacity and are impacted by any Trolley-
Unit
representation changes.
Mr.
Greer,
as
a member
of
the bargaining unit, has the right
to
participate in the activities of a labor organization such
as PTEA,
inch.;iding
campaigning in
their favor. 	·
IBEW also asserts that since Mr. Greer was in his supervisory uniform, he was acting on behalf
of
the District. It appears that IBEW is asserting that Mr. Greer was conferred with apparent
authority by the District to conduct his campaign efforts in support of PTEA. There is
no
evidence to show that management at the District
was
made aware of, or condoned,
Mr.
·Greer's conduct. And, there is no evidence to show that
Mr.
Greer's favoritism of PTEA.was
made at the direction of the District because, as described above,
he.
may participate in the
activities of an employee organization pursuant
to PUC section 120500. Thus, having a
supervisory role on occasion does not per se vest him with the apparent authority to act on
behalf of the D~strict. Mr.
Greer's supervisory status also does not.reasonably lead employees
to believe that he was authorized to campaign in favor of PTEA on behalf of the District. To ,
the contrary, a reasonable person would tend to believe that he was not acting on behalf of the
District but rather
on:
behalf of bargaining unit employees by his campaign efforts.
Nonetheless, there is no showing that the District authorized or consented to
Mr.
Greer's
actions. No agency relationship is established to show that the District coerced or interfered
with employee free choice in the decertification election.
Further, participation by supervisory personnel in a union organizing campaign does not per se
invalidate an election. Such participation may be grounds for overturning a union election
only if the supervisor's actions would reasonably tend either to cause employees_ to believe that
the supervisor acted on behalf of the employer or lead employees to support a union as result
of fear of future retaliation by supervisor. (Napili Shores Condominium Homeowners' Ass
'n v.

May 9, 2016
Page 8
NLRB (9th Cir.) 939 F.2d 717.) Even
if
it were established that there was an agency
relationship between
Mr.
Greer (in his supervisory capacity) and the District, there is no
evidence that his alleged campaign efforts-tended to coerce employees to vote in favor
of
PTEA out
of
fear
of
retaliation,
Ill. 	Removal
of
the "TEAM" Flyer From the District Facilities
IBEW!s third exception contends, without any evidence, that the District was responsible for
removing the anonymous "TEAM" flyer from the District's "break room walls." There is no
merit
in
this argument. There are no facts describing the District's policy concerning
·unauthorized postings in the employee break rooms, Nonetheless, the TEAM flyer is not an
official IBEW document and IBEW has not claimed that its official campaign documents,
if
any, were removed from the same locations as pro-PTEA flyers at designated posting locations
within the District.
Tl;iere
is also no showing that the District failed to enforce its policies for
posting union materials in preference
of
PTEA or tend to influence empl0yees to support'
PTEA over IBEW.
·IV. 	Timeliness
of
IBEW' s April 29 Letter	,
_In its April 29 letter, IBEW asserts that that: (1) the District interfered with the election by
allowing a supervisor to wear a "Supervisor's uniform" while campaigning in support
of
another employee organization; and (2) PTEA cannot be certified as a representative since it
has not evidenced itself to be an employee organization under the standards set forth by the
NLRH.
-
Within 10 days
of
issuance of.the report by SMCS, any party may file "exceptions" to the
report, (PERS Regulation 93070, subd. (c).) Given that the SMCS election supervisor issued
her report to the IBEW's election objections on April 13, the final day to file exceptions was
April
25'.
8
IDEW. timely filed except!ons on April 21, but there were no challenges made as to
PTEA's status-as an employee organization, IBEW's April 29 letter asserts this contention for
the first time; To the extent that this constitutes a new exception to the report, the filing is
outside
of
the 10-day deadline. IBEW also failed to initially address this as an election
objection
within_
five days
of
the April
11
"Tally
of
Ballpting" in accordance with PERB
Regulation 93070, The hearing officer must only-examine the exceptions to the SMCS
election supervisors "report.'.' (See PERB Regulation 93070, subds. (c), (d), and (e).) Because
this appears to be a new exception that does not comport with the filing requirements under
PERB's regulations and could not have been addressed by the SMCS election supervisor's
9
_
The proof of service shows that on April 1
~.
the SMCS report was served via US Mail
a11d
electronically to IBEW' s e-mail address.
8
Since the tenth day for filing exceptions fell on Saturday~ April 23, the deadline was
extended to the next business day, Monday, April 25,
9

May 9,
2016
Page 9
report,-the undersigned Board agent shall not address IBEW's allegation that PTEA is not a
certifiable employee organization.
10	
· 	_ 	·
CONCLUSION
. 	.
Excluding the disputed Auxiliary Supervisors from the proof of support determination would
have still satisfied the 30% threshold requirement needed in order
to
trigger a decertification-
electio·n.
Also, there-is
no
evidence that SMCS's conduct hampered the integrity of the
election process so
as
to affect employee free c~oice. -
The Auxiliary,Supervisor
who
campaigned in favor of PTEA did-not have apparent authority
to·bind the District to affect the result of the election; Auxiliary Supervisors as union dues
paying members of
the bargaining unit
are
guaranteed representational rights
to
participate
in
employee organizations of their own choosing. (Pub. Util. Code,§ 120500.) The Auxiliary
Supervisor's_ particular conduct did not affect, or have a probable effect
on,
employee free
choice in the election given that a relatively small number
of
employees were aware of the
alleged conduct.· The Board has dismissed similar election objections where
th~
impact of the
alleged· conduct is not sufficiently widespread enough
to
affect the outcome of the election.
(Salinas Valley Memqrial Healthcare
System (2010)
PERB
Order No.
Ad-387:.M; State
of
California,
s.upra,
PERB
Decision No. 601-S.) Further, even if the Auxiliary Supervisor
was
acting
as·
a District agent, there is
no
evidence that his campaign efforts coerced·employees-
either via threat or promise
of
benefit-to support PTEA in
the election. (Napili Shores
Condominium Homeowners' Ass'n
v.
NLRB,
supra, 939 F.2d 717.)
.
There was no evidence th~t the anonymous "TEAM" flyer was authorized for po~ng
or that
the District banned IBEW from posting election campaign material.
-Simply
put, the District
did not show
favo_ritism
to PTEA due to the removal of
an
anonymous flyer from the District's
walls.
··
· 	·
_Viewed in totality, the conduct alleged above did not reasonably tend to coerce or interfere
with employee free choice in the election. 	·
IBEW's contention regarding the use of supervisory uniforms by an Auxiliary
Supervisor to interfere with the election was addressed in the SMCS' s report in response to
election objections. Since this assertion is already discussed in Section II above, this
recommendation does not reach whether such.IBEW's April 29 letter, on this point, also
comports with PERB's regulations for proper filing of election objections and exceptions to
SMCS' s report.
19

May 9, 2016
Page 10
RECOMMENDATION
Review of IBEW's exceptions filed to the SMCS report on the objections did not reveal the
existence of any substantial and material factual disputes concerning conduct that would affect
the outcome of the election. Therefore, a hearing is not required and this recommendation
must issue. (PERB Regtilation 93070, subd. (c).)	.
SMCS may treat IBEW's April 29 letter as untimely, The Hearing Officer also recommends
that, after the close of the deadline for filing exceptions to this recommendation, the SMCS
election supervisor request that the Board issue a written decision-per PERB Regulation
93070, subdivision(f)-approving SMCS's plan to issue to the parties a certification of the
result of the election, including certification ofrepresentatives, where appropriate, and to close
the case..
·. The SMCS election supervisor should advise the parties of their appeal rights pursuant to
PERB Regulation 93070, subdivision (d), which provides in relevant part:
Within 10 days from the date of issuance of the aforesaid
recommendations, or within such additional period as the
Supervisor may allow upon written application for extension
made within the 10~day period, any party may file with the Board
itself an original and five copies of exceptions to the hearing
officer's recommendations, in accordance with the provisions of
Section 93065 	Concurrently upon the filing of such
exceptions, the filing party shall serve a copy upon each of the
other parties and proof thereof shall be promptly filed with the
Board.
P 11
ADDITIONAL INFORMATION REGARDING APPEAL RIGHTS
Within the time specified by PERB Regulation 93070, subdivision (d) or as specified by the
SMCS election supervisor, a party may file their statement of exceptions to this Hearing
Officer's Recommendation :with the Public Employment Relations Board's (PERB or Board).
PERB Regulation 93065, provides in relevant part: "The provisions of Sections
32300 through 32320, and Section 32400 and 32410, shall be applicable to disputes arising
under this Chapter." PERHRegulatioris 32300 through 32320 describe PERB's exception
procedures and PERB Regulations 32400 and 32410 describe "requests for reconsideration"
procedures.
11

May 9, 2016
Page
11
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031
18th Street
Sacramento, CA 95811-4124
(916) 3 22-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, §§
93065, 32300.)
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§
93065, 32135, subd
..
(a) and 32130; see also 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 or received by
electronic mail before the close
of
business, which meets the requirements
of
PERB Regulation
32135, subdivision (d), provided the filing party also places the original, together with
th~
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, 32091 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 on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§§
93065, 32300, 32305,
32140, and 32135, subd. (c).)
Sincerely,
-~·
Yaron Partovi
Hearing Officer
yp
cc: 	Raul "Kiko" Diaz, Business Representative, IBEW, Local 465
Daniel Lee Bridges, Public Transit Employees Association
Jeffrey Stumbo, HR and Labor Relations Director, Metropolitan Transit System