San Diego Trolley, Inc. (PERB 1909M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 465,
Charging Party,
v.
SAN DIEGO TROLLEY, INC.,
Respondent.
Case No. LA-CE-336-M
PERB Decision No. 	1909-M
J u n e 	1 8 , 	2007
Appearances: 	Jerry Fecher, Business Representative, for International Brotherhood of
Electrical Workers, Local Union 465; Paul, Plevin, Sullivan & Connaughton by J. Rod Betts,
Attorney, for San Diego Trolley, Inc.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: 	This case is before the Public Employment Relations Board
(Board) on appeal by the International Brotherhood of Electrical Workers, Local Union 465
(IBEW) of a Board agent's dismissal (attached) of its unfair practice charge. 	The charge
alleged that the San Diego Trolley, Inc. (SDTI) violated the Meyers-Milias-Brown Act
(MMBA)l by discriminating and dealing directly with employees represented by IBEW.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, SDTI's response, the amended charge, the warning and dismissal letters, IBEW's
appeal and SDTI's response to the appeal. The Board finds the Board agent's warning and
dismissal letters to be without prejudicial error and adopts them as the decision of the Board
itself.
MMBA is codified at Government Code section 3500, et seq.

ORDER
The unfair practice charge in Case No. LA-CE-336-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Shek and McKeag joined in this Decision.
2
2

STATE OF CALIFORNIA 	( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3543
Fax: (213)736-4901
January 18, 2007
Jerry Fecher, Business Representative
IBEW Local Union 465
7444 Trade Street
San Diego, CA 92121
Re: 	International Brotherhood of Electrical Workers, Local Union 465 v. San Diego
Trolley, Inc.; Amended Charge
Unfair Practice Charge No. LA-CE-336-M
DISMISSAL LETTER
Dear Mr. Fecher:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2006. The International Brotherhood of Electrical
Workers, Local Union 465 alleges that the San Diego Trolley, Inc. violated the Meyers-Milias-
Brown Act (MMBA)l by discriminating against and dealing directly with employees.
I indicated to you in my attached letter dated January 4, 2007, that the above-referenced charge
did not state a prima facie case as PERB did not have jurisdiction. 	You were advised that, if
there were any factual inaccuracies or additional facts which would correct the deficiencies
explained in that letter, you should amend the charge. 	You were further advised that, unless
you amended the charge to state a prima facie case or withdrew it prior to January 11, 2007,
the charge would be dismissed.
I received your Amended Charge on January 9, 2007. 	It restates the facts in the initial charge,
On August 21, 2006, San Diego Trolley, Inc. bargained directly
with a limited amount of employees and offered them a reduction
in one unserved unpaid suspension day on the books if they
agreed to work on that day. They did not inform the union at all,
nor did they bargain with the union. 	After some investigation,
they finally admitted that it occurred on November 16, 2006.
Prior to August 21, 2006, the union had filed grievances
regarding the elimination and/or reduction of disciplinary
suspensions for certain individuals for alleged rule violations, and
to our knowledge none of the employees who filed grievances
were offered a reduction in suspension if they came in to work on
1 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.

LA-CE-336-M
January 18,2007
Page 2
August 21, 2006. This action of the employer in dealing directly
with employees violated the act, and the offering of reductions to
employees who did not file grievances constitutes discrimination
under the act. 	The union therefore requests that the company
ceases and desists from such activity now and in the future, that
they inform all employees as such in writing, and that they make
all employees whole by remunerating a suspension day to every
employee who had one pending as of August 21, 2006, and to all
employees who had a grievance pending regarding a disciplinary
suspension.
The remainder of the Amended Charge asserts that PERB has jurisdiction in this matter
concerning the San Diego Trolley, Inc. 	You cite MMBA section 3500(a) indicating that this
law is broad in interpreting its coverage for local agencies and sets e~ceptions which you
highlight in bold,
It is the purpose of this chapter to promote full communication
between public employers and their employees by providing a
reasonable method of resolving disputes regarding wages, hours,
and other terms and conditions of employment between public
employers and public employee organizations. 	It is also the
purpose of this chapter 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. 	Nothing contained herein shall be deemed to
supersede the provisions of existing state law and the
charters, ordinances, and rules of local public agencies that
establish and regulate a merit or civil service system or which
provide for other methods of administering employer-
employee relations nor is it intended that this chapter be
binding upon those public agencies that provide procedures
for the administration of employer-employee relations in
accordance with the provisions of this chapter...
You assert that the definition of "public agency" in MMBA section 3501(c) is broadly
construed to include "every" public agency except for school districts. 	Section 3501(c)
provides,
Except as otherwise provided in this subdivision, "public agency"
means every governmental subdivision, every district, every
public and quasi-public corporation, every public agency and
public service corporation and every town, city, county, city and

LA-CE-336-M
January 18, 2007
Page 3
county and municipal corporation, whether incorporated or not
and whether chartered or not. As used in this chapter, "public
agency" does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California.
The San Diego Trolley Inc. is a wholly owned subsidiary of the San Diego Metropolitan
Transit System (MTS) and governed by the San Diego Metropolitan Transit Development
Board (MTDB).2 The MTDB's labor relations provisions are located in the agency's enabling
statutes. 	(Pub. Util. Code section 120500 et seq.) You point out that this law allows for
employee recognition through a representation petition and collective bargaining. 	Section
120502 provides in part for some labor disputes to be resolved through arbitration,
In case of a labor dispute over wages, salaries, hours, working
conditions, and benefits on the making or maintaining of
collective-bargaining agreements and the terms to be included in
such agreements, which is not resolved by negotiations in good
faith between the board and the labor organization, upon the joint
request of both, the board and the labor organization may submit
the dispute to the decision of the majority of an arbitration panel.
If there is no agreement to arbitrate, under section 120503, either party may notify the State
Conciliation Service which will determine whether the labor dispute may be settled by the
parties. 	If a determination is made that the dispute cannot be resolved by the parties, the
Conciliation Service shall certify its findings to the Governor who then will appoint a
factfinding commission. 	This commission investigates the dispute and reports to the Governor.
It is your position that the above enabling statutes for the San Diego Trolley do not provide for
the filing of unfair practice charges. 	Based on this and the broad grant of power of the MMBA
over local public employers, you conclude that the MMBA is applicable to the Trolley
employees and since PERB enforces the MMBA, it has jurisdiction in the instant case.
In support of your position, you cite Huntington Beach Police Officers' Assn v. City of
Huntington Beach, 58 Ca1.App.3d 492, 501-502 (1976) for the following,
Although the Legislature did not intend to preempt all aspects of
labor relations in the public sector, we cannot attribute to it an
intention to permit local entities to adopt regulations which would
frustrate the declared policies and purposes of the MMB Act
(noted above in MMBA section 3500).
2 The MTDB was recently renamed the MTS pursuant to PUC section 120050(b).
(

LA-CE-336-M
January 18,2007
Page 4
In support of your position, you assert that in Golden Empire Transit District (2004) PERB
Decision No. 1704-M, PERB determined that it had jurisdiction and that the District violated
the MMBA. 	In reviewing Golden Empire's enabling statute in the PUC, you state that it also
does not allow for the filing of unfair practice charges (see PUC section 101340 et seq.).
Based on the above information, the Amended Charge fails to state a prima facie case within
PERB's jurisdiction.
Many California public transit districts are subject to labor relations provisions that are found
in the Public Utilities Code enabling statutes. 	Some transit districts are subject to the MMBA.
As noted in my letter to you dated January 4, 2007, California Public Sector Labor Relations,
section 2.13(IJ(aJ (LexisNexis 2006) and footnote 3 of this section lists Districts whose labor
relations provisions are located in their enabling statutes. 	One such district is the MTDB (Pub.
Util. Code section 120500 et seq.).
As noted in my letter to you dated January 4, 2007,
A transit district that has its own statutorily prescribed scheme of
administering its employer-employee relations is not subject to
the MMBA. 	See Rae v. Bay Area Rapid Transit Supervisory etc.
Assn. (1980) 114 Cal. App. 3d 147, 150-151, 170 Cal. Rptr. 448.
In Public Transportation Services Corporation (2004) PERB
Decision No. 1637-M, PERB noted at page 3 that the courts have
held that "the MMBA was never intended to include in its
coverage transit districts with their own statutory framework for
administering labor relations ..." PERB held that the employer,
the Public Transportation Services Corporation (PTSC) was a
"subsidiary unit" or an "organizational unit" of the Los Angeles
County Metropolitan Transit Authority (MTA). 	PERB held that
the PTSC was not a public agency subject to the MMBA, but
instead was a transit district subject to the labor relations
provisions of PUC section 30750 et seq. Accordingly, the
complaint was dismissed as it was held that PERB did not have
jurisdiction.
Based on this, I have determined that the employer's labor relations statute in this case is
located in the PUC and is not the MMBA. 	Accordingly, PERB does not have jurisdiction in
this matter. 	You argue that based on the 2004 Golden Empire case, PERB has confirmed that
such transit districts are covered by the MMBA and that PERB has jurisdiction. 	I disagree. 	A
review of Golden Empire reveals that the issue of jurisdiction was not raised nor analyzed.
Thus, the holding in that case does not .require a finding that PERB has jurisdiction in the
instant case.

LA-CE-336-M
January 18, 2007
Page 5
I find that your argument that the above Rae case is distinguishable as concerning a
-
representation issue of agency shop is not persuasive. 	The Rae case and Public Transportation
cases cited above reveal that transit districts that have their own statutory framework for
administering their employer-employee relations are not subject to the MMBA. 	This is true
even if the Rae case concerned an agency shop issue. The 2004 Public Transportation case
gave PERB the opportunity to review and analyze the jurisdictional question. 	It held that the
PTSC was not a public agency subject to the MMBA, but in fact was a transit district governed
by the labor relations provisions of PUC section 30750 et seq. The Board dismissed the
complaint as it was held that PERB did not have jurisdiction. 	I have found no authority to
support the argument that where the enabling statute (in the PUC] for administering a transit
district's employer-employee relations does not allow for the filing of unfair practice charges,
then the district is governed by the MMBA.
Therefore, I am dismissing the charge based on the facts and reasons contained above, and in
my January 4, 2007 letter.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) 	Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 1l020(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
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. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
(916)322-8231
FAX: (916) 327-7960
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-336-M
January 18,2007
Page 6
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 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. 	(Regulation
32135(c).)
Extension of Time
A request for an extension of time, in which to file a document 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. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBIN WESLEY
Acting General Counsel
By
Marc S. Hurwitz
Regional Attorney
Attachment
cc: J. Rod Betts, Attorney

STAT;j OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3543
Fax:(213)736-4901	PER.B
January 4, 2007
Jerry Fecher, Business Representative
IBEW Local Union 465
7444 Trade Street
San Diego, CA 92121-3413
Re: 	International Brotherhood of Electrical Workers, Local Union 465 v. San Diego
Trolley, Inc.
Unfair Practice Charge No. LA-CE-336-M
WARNING LETTER
Dear Mr. Fecher:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2006. The International Brotherhood of Electrical
Workers, Local Union 465 alleges that the San Diego Trolley, Inc. violated the Meyers-Milas-
Brown Act (MMBA)l by discriminating and dealing directly with employees.
The charge states,
On August 21, 2006, San Diego Trolley, Inc. bargained directly
with a limited amount of employees and offered them a rèduction
in one unserved unpaid suspension day on the books if they
agreed to work on that day. They did not inform the union at all,
nor did they bargain with the union. 	After some investigation,
they finally admitted that it occurred on November 16, 2006.
Prior to August 21, 2006, the union had filed grievances
regarding the elimination and/or reduction of disciplinary
suspensions for certain individuals for alleged rule violations, and
to our knowledge none of the employees who filed grievances
were offered a reduction in suspension if they came in to work on
August 21, 2006. This action of the employer in dealing directly
with employees violated the act, and the offering of reductions to
employees who did not file grievances constitutes discrimination
under the act. 	The union therefore requests that the company
ceases and desists from such activity now and in the future, that
they inform all employees as such in writing, and that they make
all employees whole by remunerating a suspension day to every
1 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.

LA-CE.,336-M
January 4, 2007
Page 2
employee who had one pending as of August 21, 2006, and to all
employees who had a grievance pending regarding a disciplinary
suspension.
Based on the above information, the charge fails to state a prima facie case within PERB's
jurisdiction.
PERB has jurisdiction over the MMBA as one of the collective bargaining laws that it
enforces. 	Many California public transit districts are subject to labor relations provisions
which are located in the Public Utilities Code enabling statutes, in joint powers agreements or
in incorporation articles and bylaws. 	In addition, some transit authorities are subject to the
MMBA. 	See California Public Sector Labor Relations, section 2.13(1J(a) (LexisNexis 2006)
and footnote 3 of this section which lists Districts whose labor relations provisions are found in
their enabling statutes. 	One such district is the San Diego Metropolitan Transit Developmènt
Board (MTDB) (Pub. Util. Code section 120500 et seq.).
The San Diego Trolley, Inc. was formed in 1980. In 1985 the City of San Diego transferred its
ownership of San Diego Transit Corporation to MTDB. The San Diego Trolley Inc. is a
wholly owned subsidiary of the San Diego Metropolitan Transit System (MTS) and governed
by the MTDB.2
A transit district that has its own statutorily prescribed scheme of administering its employer-
employee relations is not subject to the MMBA. 	See Rae v. Bay Area Rapid Transit
Supervisory etc. Assn. (1980) 114 Cal. App. 3d 147, 150-151, 170 Cal. Rptr. 448. In Public
Transportation Services Corporation (2004) PERB Decision No. 1637-M, PERB noted at page
3 that the courts have held that "the MMBA was never intended to include in its coverage
transit districts with their own statutory framework for administering labor relations ..."
PERB held that the employer, the Public Transportation Services Corporation (PTSC) was a
"subsidiary unit" or an "organizational unit" of the Los Angeles County Metropolitan Transit
Authority (MTA). 	PERB held that the PTSC was not a public agency subject to the MMBA,
but instead was a transit district subject to the labor relations provisions of PUC section 30750
et seq. Accordingly, the complaint was dismissed as it was held that PERB did not have
jurisdiction.
Based on the above information, I conclude that the employer's labor relations statute in this
case is not the MMBA but is found in the PUC, and as such, PERB does not have jurisdiction
in this matter. You assert that in Golden Empire Transit District (2004) PERB Decision No. \
1704-M, a request for information case, PERB found that it had jurisdiction and that the transit
district violated the MMBA. 	I have reviewed Golden Empire and have determined that the
issue of jurisdiction was not raised nor analyzed. Accordingly, I have determined that the
holding in Golden Empire does not mandate a finding that PERB has jurisdiction in the instant
case.
2 2 The MTDB was recently renamed the MTS pursuant to PUC section 120050(b).

LA-CE-336-M
January 4, 2007
Page 3
On January 3, 2007,I discussed with you the concerns I have with your unfair practice charge.
I also advised you that I would send you a letter.
For these reasons, the charge, as presently written, does not state a prima facie case. 	If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative, Attorney J. Rod Betts of Paul, Plevin, Sullivan and Connaughton, LLP in San
Diego, California, and the original proof of service must be filed with PERB. 	If I do not
receive an amended charge or withdrawal from you before January 11, 2007,I shall dismiss
your charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Marc S. Hurwitz
Regional Attorney
MSH
(