County of Fresno (PERB A433M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF FRESNO,
Employer,
and
FRESNO COUNTY PUBLIC SAFETY
ASSOCIATION,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Exclusive Representative.
Case No. SA-DP-258-M
Administrative Appeal
PERB Order No. Ad-433-M
February 29, 2016
Appearances: Daniel C. Cederborg, County Counsel, and Catherine E. Basham, Chief Deputy
County Counsel, for County
of
Fresno; Messing Adam & Jasmine, LLP, by Jason H. Jasmine,
Attorney, for Fresno County Public Safety Association; Weinberg, Roger & Rosenfeld, by
Kerianne
R.
Steele, Attorney, for Service Employees International Union Local 521.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Service Employees International Union Local 521 (SEIU) from
an administrative determination (attached) by PERB's Office
of
the General Counsel (OGC)
which set aside the results
of
a decertification election and ordered a re-run
of
that election
after consideration
of
SEIU' s objections to the conduct
of
the election.
We have reviewed the record in its entirety in light
of
the issues raised by SEIU' s
appeal and request for a stay
of
proceedings, including the response by the Fresno County
Public Safety Association (Association) and the County of Fresno (County). We find the

administrative determination to be supported by the record, well-reasoned and in accordance
with applicable law. We therefore adopt the administrative determination as the decision
of
the Board itself, as supplemented by the discussion below, and deny the appeal.
FACTUAL AND PROCEDURAL SUMMARY
On or about December 23, 2014, the Association filed a decertification petition
pursuant to the County's local rules seeking to decertify SEIU as the exclusive representative
for Bargaining Unit 2, described as consisting
of
employees
of
the sheriffs office and
probation office.
On June 22, 2015, SEIU, the Association and the County entered into a consent election
agreement (CEA) for a mailed ballot election to be conducted by an impartial election
supervisor from the State Mediation and Conciliation Service (SMCS). The CEA provided
that a voter's packet will be mailed to each eligible voter on July 20, 201 S.1 Ballots were to be
returned to SMCS by August 7, and counted on August 12 in the presence
of
designated
observers.
Due to an inadvertent mistake by the SMCS election supervisor assigned to conduct
this election, the ballots were mailed on July 16, instead
of
July 20, 2015. Several bargaining
unit members received their voter packets on July 18. According to a declaration from the
regional director
of
SEIU's Fresno office, SEIU had planned a "get out the vote" campaign to
. begin around the agreed-upon July 20 mailing date. This campaign included assigning staff to
be tasked with "get out the vote" activities. Because the ballots were mailed early SEIU was
short staffed in the days immediately prior to July 20, according to the regional director.
On August 12, two SMCS staff members conducted the ballot count. The results were
1 The term of a recently negotiated memorandum of understanding between SEIU and
the County became effective on July 20, 2015.
2

228 votes for SEIU, 319 votes for the Association, and 24 for "no organization." Thus, the
Association won the election by a 91-vote margin.
SEIU's Objections
SEIU's objections were based on two grounds. First, it asserted that the early mailing
of
ballots was a serious irregularity in the conduct
of
the election that resulted in SEIU' s
defeat. Second, it claimed that the County interfered with employees' right to freely choose a
representative. In support
of
this objection, SEIU alleged the following: (1) a County sheriff
sergeant, Jeffrey Penry (Penry), encouraged bargaining unit members to decertify SEIU; (2)
the County permitted Association leaders to roam freely around the County jail to solicit
support for the decertification effort and to use County phones and intercoms for this purpose;
and (3) the sheriff and two elected officials were members
of
a "closed" Facebook group
which included approximately
73
unit members and was devoted to supporting the
Association's decertification efforts and criticizing SEIU, and Penry made numerous
comments on the closed Facebook group page that were highly critical
of
SEIU and its
leadership.
In its objections to the election, SEIU specifically requested:
We ask that PERB set aside the results
of
this tainted election and
entirely dismiss the decertification petition. Alternately, we ask
that PERB order a re-run election after an appropriate hiatus.
The Administrative Determination
The administrative determination sustained SEIU's objection regarding the premature
mailing
of
the voters packets, concluding that this was a serious irregularity in the conduct
of
the election. As a result, the OGC ordered the results of the election to be set aside and the
election to be re-run. The parties were directed to make themselves available to SMCS in
order to revise the CEA for a rerun election.
3

The administrative determination explicitly did not rule on SEIU's remaining objection
regarding the County's alleged conduct in support
of
the Association's decertification efforts,
noting that such a ruling was not necessary because the election results were set aside due to
the premature mailing
of
voters' packets.
Appeal and Request for Stay
Despite the fact that the elections results adverse to SEIU were set aside, SEID
appealed the administrative determination, asserting that the OGC failed to resolve all the
issues presented by SEIU's objections, namely, the objections related to the County's alleged
interference with the employees' right to freely choose their representative. In its appeal,
SEIU also repeats the remedy it requested in its objections-that the decertification petition be
dismissed or, alternatively, that the election be re-run after "an appropriate hiatus."
SEIU also requested a stay
of
activity pursuant to PERB Regulation 32370.2
Specifically, SEID seeks a stay until the OGC can conduct a further investigation or hold an
evidentiary hearing to determine (1)
if
the decertification petition should be dismissed in its
entirety; or (2)
if
the second election should be postponed until after an appropriate hiatus, i.e.,
after the "taint
of
the County's misconduct can dissipate." (Request for Stay
of
Activity, p. 1.)
SEIU asserts in its appeal that SMCS has initiated the process
of
re-running the election.
According to SEIU,
if
an election were held now, the taint
of
the County's misconduct would
not yet have dissipated and would continue to unduly influence how employees vote. SEID
2 PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. PERB Regulation 32370 provides:
An appeal will not automatically prevent the Board from
proceeding in a case. Parties seeking a stay of any activity may
file a request for a stay with the administrative appeal which shall
include all pertinent facts and justification for the request. The
Board may stay the matter, except as is otherwise provided in
these regulations.
4

also argues that it would suffer hardship
if
it were required to submit to an election now
because
of
the enormous amount
of
resources that SEIU must expend to defend against a
decertification election.
The Association opposes the appeal and the request for stay, arguing that SEIU is
merely attempting to delay the certification
of
the Association as the new exclusive employee
representative. The Association argues that SEIU has failed to show that there was any actual
interference by the County, or that even
if
there were any interference, it had a natural or
probable effect on employee free choice under Salinas Valley Memorial Healthcare System
(2010) PERB Order No. Ad-387-M.
The Association also argues that a stay
of
the election would create an extreme hardship
for the Association because it would be denied the right to represent employees who had voted
overwhelmingly for its representation, and because the stay would create an extreme hardship
on employees who are forced to pay either dues or fair share fees to SEIU in spite
of
already
having voted to decertify SEIU. The Association argues that any further delay would be an
abuse
of
discretion and a violation
of
the rights
of
the unit employees to exercise their right to
a representative
of
their choice.
The County responded to the appeal by noting that it does not have an interest in the
outcome
of
the decertification election, but denies any allegation
of
wrongdoing on the part
of
its management with regard to that election.
DISCUSSION
Because this election was conducted by SMCS pursuant to local rules, PERB
Regulations at Article 1, Subchapter 9, beginning with Regulation 32999 et seq., apply.
PERB Regulation 33009 (entitled "Objections") states, in relevant part:
5

(a) Within 10 days following the service
of
the tally
of
ballots,
any party to the election may file with the Board, at the
appropriate regional office, objections to the conduct
of
the
election
....
(c) Objections shall be entertained by the Board only on the
following grounds:
(1) The conduct complained
of
interfered with the
employees' right to freely choose a representative, or
(2) Serious irregularity in the conduct
of
the election.
(g) The Board shall dismiss objections that fail to satisfy the
requirements
of
subsections (a) through (d). The objecting party
may appeal the dismissal to the Board itself in accordance with
Chapter 1, Subchapter 4, Article 3
of
these regulations.
(Id.; emphasis added.)
Unlike other regulations governing appeals to the Board itself, PERB Regulation 33009
is worded narrowly and specifically to permit appeals only by objecting parties whose
objections have been actually dismissed. This regulation is not a general grant
of
appeal rights
as is found, for example, in PERB Regulation 32300(a), pertaining to exceptions to proposed
decisions after an administrative hearing ("A party may file with the Board itself
...
a
statement
of
exceptions to a
...
proposed decision"); or in PERB Regulation 32360(a),
governing appeals from administrative decisions other than election objections ("an appeal
may be filed with the Board itself from any administrative decision"); or in PERB Regulation
32635, permitting appeals by a charging party
of
a dismissal
of
fil1.
unfair practice charge.3 The
3 PERB Regulation 32630 requires the refusal to issue a complaint if the Board agent
reviewing the unfair practice charge concludes that the charge or evidence is insufficient to
6

narrow wording
of
PERB Regulation 33009 furthers the public policy favoring rapid and
expedient resolution
of
representation matters, and for that reason we are compelled to
construe and apply the regulation narrowly.
establish a prima facie case. This regulation also explicitly states, "The refusal shall constitute
a dismissal
of
the charge." Similar language is not found in PERB Regulation 33009.
In this case, the OGC did not dismiss any objection. It sustained SEID's objection
concerning the early mailing
of
the ballots and granted its request that the election results be
set aside and that a new election occur. In the words
of
the OGC, "Because the inadvertent
early mailing
of
the voter's packets warrants setting aside the results
of
the election,
it
is not
necessary for PERBto rule on SEIU's other election objections." (Admin. det., p. 20.) We
agree with the OGC that it was not necessary to rule on SEID's other objections, given the fact
that
it
determined the election results should be set aside and a new election should be held.
Because PERB Regulation 33009 permits appeals only
of
dismissals
of
objections, and
because SEID has obtained the relief that was available pursuant to PERB Regulation 33010,
its request that the Board resolve its allegations
of
employer misconduct is not ripe.
We therefore dismiss SEID's appeal and dismiss its objection based on the County's
alleged misconduct without prejudice.4 Because these allegations were not dismissed by the
4 Because
of
the unusual procedural posture
of
this case, we exercise our general
authority under Government Code section 3541.3, subdivision (n) to take any other action the
Board deems necessary to discharge its powers and otherwise effectuate the purposes
of
the
Act and dismiss the objection along with the appeal. Normally, we would not rule directly on
an objection (as opposed to an appeal of a dismissal thereof), but instead remand the matter for
the OGC to take action regarding the objection. However in this case, a remand would be
superfluous because it would not result in any additional remedy beyond what the OGC
already ordered and to which the objecting party is entitled under PERB regulations. Having
determined that one of the grounds for SEID's objection supported overturning the election
and ordering a second election, the OGC did not need to investigate and determine the bona
fides of the other ground asserted by SEID as a basis for its objection to the election. There is
no justification for any further delay in this case which a remand for action by the OGC on the
second objection would entail.
7

OGC and PERB has not made any determination concerning them, they may therefore be
reasserted as a basis for setting aside a second election. SEID is free to raise these allegations
of
misconduct and any others, should they occur,
if
it does not prevail in the second election
and believes the employer's alleged misconduct interfered with employee free choice.
We also deny SEIU's request that this matter be remanded to the OGC for a hearing on
the allegations
of
employer misconduct. In the administrative determination, SEIU has already
obtained the relief to which it is entitled under the regulations concerning election
objections-
the setting aside
of
the election results and the ordering
of
a new election. This result would
not be altered by additional findings that the employer engaged in misconduct, and remanding
in this circumstance would cause needless delay in the election process.
We also reject SEIU's request that the decertification petition be dismissed or that the
re-run election be postponed. Through its adoption
of
Regulation 33010, PERB has
circumscribed its authority in dealing with objections to elections. Objections will be
considered only on the basis
of
allegations that conduct interfered with employees' right to
freely choose a representative or because
of
a serious irregularity in the conduct
of
the election.
The remedial powers that repose in the Board agent concerning objections are limited to
dismissing the objections or setting aside the election. (PERB Regulation 33010.) 5 Dismissal
5 PERB Regulation 33010 provides:
Concerning objections, a Board agent has the power to:
(a) Direct any party to submit evidence through declarations or
documents;
(b) Order the inspection of documents by Board agents or the parties;
(c) Direct any party to submit an offer of proof;
(d) Obtain declarations from witnesses based on personal knowledge;
8

of
the decertification petition is not among the remedial actions available to the Board agent
when determining the disposition
of
objections. Neither is the Board agent empowered by this
regulation to postpone a second election after an "appropriate hiatus." 6 Therefore, we reject
SEIU's request to dismiss the decertification petition or in the alternative to postpone the
second election.7
(e) Conduct investigatory conferences with the parties to explore and
resolve factual or legal issues;
(f) Dismiss any objections which, after investigation, do not warrant
setting aside the election. Any such dismissal is appealable to the
Board itself pursuant to Chapter
1,
Subchapter 4, Article 3
of
these
regulations.
(g) Issue a written determination setting aside the election when,
after investigation,
it
appears that such action is warranted, and that
no material factual disputes exist. Such determination shall be in
writing and served on the parties. Any such determination is
appealable to the Board itself pursuant to Chapter 1, Subchapter 4,
Article 3
of
these regulations.
(h) Schedule a hearing when substantial and material factual disputes
exist. Any hearing shall be limited to the issues set forth in the
notice
of
hearing.
In sum, the OGC properly determined that the decertification election results should be
set aside because
of
a serious irregularity in the conduct
of
the election caused by the
premature mailing
of
voters' packets. If the OGC had considered the other grounds for SEIU's
objections and agreed that the County's alleged conduct interfered with the employees' free
6 It is worth noting that SEIU failed to file an unfair practice charge accusing the
County
of
interfering with employees' rights to freely select their representative. Had it filed
such a charge, SEIU could have requested that PERB adjudicate this claim prior to conducting
a re-run election. PERB regulation 33002 permits the Board to stay an election upon issuance
of
a complaint alleging conduct that would prevent employees from exercising free choice.
Having failed to file such a charge, SEIU may not obtain such relief, available only in
conjunction with an unfair practice charge, through an appeal
of
a ruling by the OGC on
objections to the election.
7 We note that the first election was held in July 2015. More than seven months has
passed since then. SEIU has thus received a hiatus by virtue of our appeals process.
9

choice,
it
was empowered only to order the same
remedy-setting
aside the election results
and ordering a second election. Nothing further can be accomplished by directing the OGC to
consider the objections based on the County's alleged wrongful acts, and we decline to do so.
We also deny SEIU' s request for a stay
of
further proceedings pending consideration
of
its appeal, as this decision resolves that appeal.
ORDER
Service Employees International Union Local 521
's
appeal from the administrative
determination in Case No. SA-DP-258-M is hereby dismissed. SEIU's objection to the
election based on the County's conduct that allegedly interfered with the employees' right to
freely choose a representative is dismissed without prejudice. SMCS is directed to meet with
the parties for the purpose
of
entering into a new consent election agreement for a new election
consistent with the parties' agreement. The parties are directed to participate in this process
for entering into a new consent election agreement.
Members Huguenin and Banks joined in this Decision.
10

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF FRESNO,
Employer,
and
FRESNO COUNTY PUBLIC SAFETY
ASSOCIATION,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Exclusive Re resentative.
REPRESENTATION
CASE NO. SA-DP-258-M
ADMINISTRATIVE
DETERMINATION
(October 19, 2015)
Appearances: Kerianne Steele, Attorney, Weinberg, Roger and Rosenfeld, for Service
Employees International Union Local 521; Jason Jasmine, Attorney, Messing, Adam and
Jasmine, for Fresno County Public Safety Association; Catherine Basham, County Counsel, for
County
of
Fresno.
Before Laura Z. Davis, Senior Regional Attorney.
INTRODUCTION
The County
of
Fresno (County) is a public agency within the meaning
of
the Meyers-
Milias-Brown Act (MMBA)1 section 3501, subdivision (c). The County has adopted local
rules for the administration
of
employer-employee relations (Local Rules) under MMBA
section 3507. The Local Rules provide a procedure under which an employee organization
may seek decertification
of
the exclusive representative. On approximately December 23,
2014, the Fresno County Public Safety Association (FCPSA) filed a decertification petition
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

pursuant to the County's Local Rules. The petition sought to decertify the Service Employees
International Union Local
521
(SEID) as the exclusive representative for Bargaining Unit 2.2
On June 22, 2015,3 SEID, FCPSA and the County entered into a Consent Election
Agreement (CEA) for a mail ballot election, to be conducted by an impartial Election.
Supervisor from the State Mediation and Conciliation Service (SMCS). Paragraph 6
of
the
CEA provides that "A voter's packet will be mailed to each eligible voter on July 20, 2015."
Paragraph 6 further provides that ballots must be returned to SMCS by August 7, and that the
ballots will be counted on August 12, in the presence
of
designated observers.
On August 12, two SMCS staff members conducted the ballot count. The results were
228 votes for SEID, 319 votes for FCPSA, and 24 for no organization. Thus, FCPSA won the
election by a 91-vote margin.
APPLICABLE REGULATIONS
PERB Regulations 32999 et seq.4 govern elections conducted by SMCS. These
provisions apply when SMCS conducts representation proceedings pursuant to the local rules
adopted by an MMBA employer. (PERB Reg. 32999, subd. (a).) Such elections may only be
conducted pursuant to a CEA. The CEA will either identify the time, place and manner
of
an
election or authorize the SMCS Election Supervisor to determine the time, place and manner
of
the election. (PERB Reg. 32999, subd. (b).) PERB Regulation 33009 provides for the filing
of
objections to such elections:
(a) Within 10 days following the service
of
the tally
of
ballots,
any party to the election may file with the Board, at the
2 The unit is described as consisting of employees of the Sheriffs office and Probation
office.
3 All subsequent dates herein are to the 2015 calendar year unless otherwise stated.
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

appropriate regional office, objections to the conduct
of
the
election.
(c) Objections shall be entertained by the Board only on the
following grounds:
(1) The conduct complained
of
interfered with the employees'
right to freely choose a representative, or
(2) Serious irregularity in the conduct
of
the election.
(d) The statement
of
the objections must contain specific facts
which,
if
true, would establish that the election result should be
set aside, and must also describe with specificity how the alleged
facts constitute objectionable conduct within the meaning
of
subsection ( c) above.
(f) At the direction
of
the Board, facts alleged as supportive
of
the
election conduct objected to shall be supported
by
declarations.
Such declarations must be within the personal knowledge
of
the
declarant, or must otherwise be admissible in a representation
hearing pursuant to Section 32175. The declarations shall specify
the details
of
each occurrence; identify the person(s) alleged to
have engaged in the allegedly objectionable conduct; state their
relationship to the parties; state where and when the allegedly
objectionable conduct occurred; and give a detailed description
of
the allegedly objectionable .conduct.
	...
PERB Regulation 33010 authorizes the Board's agent to conduct an investigation and to make
a determination to either dismiss the objections, or set aside the election. The Board agenf s
determination is appealable to the Board itself. (PERB Regulation 33009 (g).)
SEIU'S OBJECTIONS
On August 21, SEIU filed election objections with PERB pursuant to PERB Reguiation
3 3009. SEIU also filed eight declarations in support
of
its objections. 5
~
SEIU provided declarations from the following individuals: (1) Tom Abshare; (2)
Mariann Coolidge; (3) Francis Coronado; (4) Teneya Harrison-Johnson; (5) Mohammad Iqbal;
(6) Lenora Licon; (7) Ana Martinez; and (8) Jada Pinder.
3

SEIU essentially advances four grounds for its objections. First, SEIU alleges that
there was a serious irregularity in the conduct
of
the election, because SMCS mailed the voter
packets6 to employees on July 16, rather than on July 20. Second, SEIU alleges that Sergeant
Jeffrey Penry (Sgt. Penry) encouraged bargaining unit members to get rid
of
SEIU. Third,
SEIU alleges that the County permitted leaders
of
FCPSA to "roam freely around the County
jail" to solicit support for the decertification effort, and to use County phones and intercoms
for this purpose. Fourth, SEIU alleges that Sgt. Penry, along with two elected
officials-Board
of
Supervisors Member Andres Borgeas (Member Borgeas) and County Assessor Recorder
Paul Dictos (Assessor
Dictos)-were
members
of
a "closed" Facebook group devoted to
supporting FCPSA's decertification efforts, and critical
of
SEIU. Moreover, Sgt. Penry made
numerous comments on the closed Facebook group page that were highly critical
of
SEIU and
its leadership. 7
FINDINGS OF FACT
By letter dated August 26, PERB offered FCPSA and the County an opportunity to
respond to the election objections advanced by SEIU. In addition, PERB requested
information from SMCS regarding the issue
of
the alleged early mailing
of
the voter packets.
SMCS responded, providing the information on August 28. On September 3, the FCPSA
provided a position statement, accompanied by the declarations
of
two individuals. 8 On
6 The voter packets include a ballot, instructions and return envelope.
7 SEIU also provides facts concerning testimony
of
several witnesses at a hearing in
SEIU Local 521
v.
County
of
Fresno, PERB Case No. SA-CE-793-M. This charge was
withdrawn, and the complaint dismissed, on July 20, 2015. The testimony discussed by SEIU
concerns events in 2012. This information seems to have no relevance to the instant objections
by SEIU concerning the election in 2015, therefore, this information is not included in the
summary of facts.
8 FCPSA provided declarations of (1) Victor Prado (Prado) and (2) Eulalio Gomez
(Gomez).
4

September 4, the County provided a position statement, accompanied by the declarations
of
12
individuals.9
On September 15, SEIU provided a further position statement and a
declaration.
10
The summary
of
facts below includes all relevant facts provided by the three
parties.
A. 	Background Information Regarding Decertification Petition
The FCPSA filed a decertification petition with the County
on
approximately December
23, 2014. SEIU objected to the petition and sought to create a separate unit comprised only
of
Correctional Officers (COs).
11
SEIU filed a "challenging petition" to the decertification
petition, which the County denied. SEIU then filed a unit modification petition, which the
County also denied, in part on the basis that the proof
of
support offered was too old to be
counted. According to the Supplemental Declaration
of
Harrison-Johnson (the Regional
Director
of
SEIU' s Fresno Office), SEIU believed that the County misapplied its local rules in
denying these petitions, and planned to file an unfair practice charge with PERB. However,
SEIU discussed the matter internally and determined that
if
an SMCS-run election could be set
up under the terms that SEIU proposed, then SEIU would proceed with the decertification
election instead
of
filing with PERB. There is no indication that this reasoning was
communicated to anyone outside
of
SEIU.
9 The County provided declarations
of
the following individuals: (I) Member Borgeas;
(2) Raymond Diaz; (3) Assessor Dictos; (4) Carrie Kurtural; (5) Carlos Meza (Meza); (6)
Margaret Mims (Sheriff Mims); (7) John Navarette; (8) Sgt. Penry; (9) Joe Rodriguez
(Rodriguez); (10) Nuttapol Sutakul (Sutakul); (11) Robert Thao (Thao); and (12) Ron Vega
(Captain Vega).
10
SEIU provided a Supplemental Declaration of Teneya Harrison-Johnson (Harrison-
Johnson).
11
The record does not reflect the exact composition of this proposed bargaining unit.
5

On July 16, the County's Board
of
Supervisors approved the terms
of
a tentative
agreement for a successor Memorandum
of
Understanding (MOU) to cover the bargaining unit
at issue in the decertification.
12
The term
of
the MOU started July 20, 2015. SEIU's declarant
Harrison-Johnson attests that the July 20 date was pivotal, as this is when members would start
to see pay increases that SEIU had negotiated.
A meeting to discuss the CEA was scheduled for June 22. Using a form from a
previous election, SEIU prepared a draft CEA, providing that a notice
of
election would be
posted 14 days after the execution date
of
the agreement. Counting from the assumed
execution date
of
June 22, (the date
of
the meeting) the notices would be posted on July 6. The
voter packets would then be mailed out 14 days later, or on July 20. The SMCS Election
Supervisor provided a revised version
of
the CEA. SEIU's attorney Kerianne Steele (Steele)
then modified that document. The final CEA changed the notice posting date to July 8, but left
intact the July 20 date for the mailing
of
the ballots.
B. 	Date
of
Mailing of Voter Packets
SMCS provides a declaration by its Chief, dated August 28, concerning the mailing
of
the voter packets. The Election Supervisor assigned by SMCS to conduct the election had a
pre-scheduled leave
of
absence that started on July 13. However, he arranged to interrupt his
leave, and worked on Thursday, July 16, to prepare the voter packets for the election. The
Election Supervisor and three other. SMCS staff members worked into the evening
of
July 16
to prepare the voter packets.
13
At approximately 8:30 p.m., the Election Supervisor took the
sealed voter packets to the post office, inadvertently forgetting that they were to be held for
12
The tentative agreement was reached on June 10 and ratified by SEIU members in
June. 
13
According to the Tally of Ballots, there were 854 eligible voters, therefore 854 voter
packets would have been prepared.
6

mailing until Monday, July 20. The Election Supervisor then resumed his leave
of
absence.
By pre-arrangement, the ballot count on August
12
was conducted by two other SMCS
Conciliators. The Election Supervisor did not realize that the ballots were mailed early until
the day after the ballot count (August 13.) He notified the SMCS Chief
of
the error the next
day (August 14). Thus, it is undisputed that the voter packets were, erroneously, mailed on
July 16.
SEIU provides declarations
14
attesting that several bargaining unit members reported
receiving their voter packets before July 20, thus confirming that the voter packets were mailed
earlier than the date specified in the CEA. At least two employees received their voter packets
on July 18. One bargaining unit member, Ana Martinez, received the voter packet on July
18
and mailed her ballot the same day.
The Regional Director
of
SEIU's Fresno Office, Harrison-Johnson, provides a
declaration and a supplemental declaration regarding the alleged impact
of
the early mailing on
SEIU. She states that SEIU had planned its "get out the vote" organizing campaign around the
mailing date
of
July 20, because SEIU views the firstfew days after mailing as critical
decision-making days for voters. Because
of
the early mailing, SEIU representatives missed
opportunities to talk to members about the election during the first few days
of
the voting
period, SEIU had planned its "get out the vote" staffing around the date
of
July 20, and thus
was short staffed in the days immediately prior. Upon learning
of
the early mailing, SEIU
immediately dispatched its available organizers to go talk to voters. Harrison-Johnson states
that she believes the early mailing
of
the ballots cost SEIU the election.
FCPSA provides the declaration
of
Victor Prado, who is the vice-president of FCPSA
and a CO. 	Prado was present at the ballot count on August 12. Before the counting started,
14
See declarations of Coronado, Martinez, and Pinder.
7

the SMCS personnel conducting the ballot count asked
if
anyone had objections to the election
process. No party objected. FCPSA alleges that the first time that SEIU took issue with the
process was after the ballot count was completed. SEIU refused to sign the SMCS
Certification
of
Conduct
of
Election form.
There are no facts to show whether anyone present at the ballot count informed the two
SMCS conciliators conducting the count that the voter packets were mailed early. The
Election Supervisor, who was not present at the count, did not realize the error until the next
day, August 13.
C. 	Conduct
of
Sergeant Jeff Penry
SEIU provides a declaration
of
CO Mohammad Iqbal (Iqbal) concerning the pre-
election conduct
of
Sgt. Penry. On the evening
of
July 28, at approximately 8:50 p.m., Iqbal
states that he was on duty relieving another officer who was on break. He noticed that Sgt.
Penry was talking to some other COs, including
C.
Meza, N. Sutakul, and R. Thao. Another
CO, R. Necochea, was present, but was walking back and forth in the area. Iqbal overheard
Sgt. Penry say words to the effect that "SEIU ... was not good for us." Iqbal also states that he
heard Sgt. Penry say that SEIU refused to get peace officer status for the COs, and that SEIU
was scared that the COs were going to leave the union and move to the FCPSA. Sgt. Penry
then noticed that Iqbal was listening and left.
Iqbal further states, ''while conducting his supervisory checks, Sgt. Penry used
department time to spread rumors and pass his own personal opinions." Iqbal states that Sgt.
Penry has been seen talking to COs, who were involved in the decertification, during the night
shift in the jail and in the parking lot. On an unspecified date, Iqbal overheard Sgt. Penry
saying he would help COs with the decertification process and that he supported the process.
CO Raymond Diaz told Iqbal that he (Diaz) "just stands and listens to what [Sgt. Penry and the
8

other COs] say and does not provide his input." On one occasion, Sgt. Penry said to Iqbal
"SEIU is not good for law enforcement, they are only good for laborers, restaurant employees,
secretaries, etc." Iqbal also states that Sgt. Penry has harassed Iqbal, and Sgt. Penry got Iqbal
in trouble when another officer started an argument with Iqbal about a union issue.
The County provides a declaration by Sgt. Penry. Sgt. Penry has been a Correctional
Sergeant since 2007; prior to that he was a CO. He is the Vice President
of
the Correctional
Sergeants Association, which is the certified representative
of
the County's Bargaining Unit
37, comprised
of
Correctional Sergeants
..
When he was a CO, he was a member
of
Bargaining
Unit 2, represented by SEID. As a Sergeant, he is a first line supervisor
of
COs, but he is not a
manager. Sgt. Penry states that he has never been directed by any management employee
of
the County to discuss SEID or the FCPSA, nor has he been given permission to do so by
management.
Sgt. Penry states that he has regular conversations with COs, some
of
whom are his
friends as well as co-workers, concerning family and personal matters, and conversational
topics such as sports and movies. He states that he has listened as some have expressed
frustration with SEIU, however, he has never told anyone how they should vote. Sgt. Penry
further states that he has not talked to CO Iqbal about SEIU, nor has he ever written him up or
done anything to get him in trouble. Sgt. Penry also states that he was on annual leave (from
July
31
through August 10) during part
of
the mail balloting period. Sgt. Penry states that the
Correctional Sergeants Association is attempting to get peace officer status for its members,
and that bargaining Unit 2 would have to agree with this in order for it to happen.
The County provides declarations from COs Diaz, Meza, Sutakul, and Thao. To the
extent that they have had conversations with Sgt. Penry while on duty, they state that they have
not discussed union issues, nor has Sgt. Penry tried to influence their vote. Meza states that on
·
9

one occasion a CO raised the topic
of
union representation, and Sgt. Penry stated he could not
comment because it was not his place to do so. Diaz denies having the conversation with Iqbal
about standing and listening to Sgt. Penry.
The ·FCPSA's Prado states in his declaration that he has been friends with Sgt. Penry
for many years. Prado states that he and Sgt. Penry have conversations in the parking lot on
occasion, but typically do not discuss work-related matters.
In
the past, Prado asked for Sgt.
Penry's advice on forming an employee organization because Sgt. Penry had helped form
the·
Correctional Sergeants Association. Prado further states that Sgt. Penry has not offered
support or assistance to FCPSA, nor has the FCPSA sought Sgt. Penry's support or assistance.
D. 	Conduct of Other Bargaining Unit Members
Iqbal states that COs involved in the decertification effort "have been given freedom
of
going from one area
of
the jail to other [sic] persuading officers to join in their cause." In
particular, COs Gomez, Holmes, Hanlin, Prado, and Rodriguez have done this on the day shift,
which, he states, would be "easy to prove" by viewing security camera footage and
interviewing those COs. Iqbal also states that COs have also used the intercom system "in the
elevators following a systematic plan
of
telling officers how and whom to vote for in the
elections." Iqbal does not provide any details concerning the alleged use
of
the intercom
system. Iqbal states that on July 27, "Officer
J.
Rodriguez was also heard calling different
floors and telling the officers to vote for the [FCPSA]." Iqbal also states that other COs are
scared that they will be targeted.
The County states that Iqbal works the night shift (6 p.m. to 6 a.m.), so he would not
have personal knowledge regarding events occurring during the day shift (6 a.m. to 6 p.m.).
The County provides a declaration from Rodriguez, a CO who works the day shift. Rodriguez
states that in the course of his duties Rodriguez will call other COs about inmate and

scheduling matters. Rodriguez further states that during the week
of
July 19, he sometimes
ended these phone calls with a reminder to vote in the election but he did not tell anyone who
to vote for, and he has never used the intercom system to speak about union issues or heard
others doing so.
According to SEIU, Iqbal is assigned to the night shift, however, he frequently works
overtime and therefore works day shifts from time to time. SEIU does not identify any specific
dates that Iqbal worked overtime on the day shift during the pre-election period.
The FCPSA's leaders Gomez and Prado both state in their declarations that they have
not been given any more latitude in campaigning at work sites and on work time than have
representatives
of
SEIU.
E. 	The Closed Facebook Group
Employees supporting FCPSA formed a closed group, called Fresno County Employees
United, on the social media site Facebook. (See SEIU's declarations
of
Harrison-Johnson and
SEIU Fresno Office President Tom Abshare (Abshare).) According to SEIU, a "closed group"
means that an individual with a Facebook account must affirmatively request to join the group
or approve an invitation he/she has received to join the group. 	As
of
August 19, the closed
group had approximately 561 members. 	SEIU calculated that
73
members
of
the closed group
were employees and bargaining unit members who were eligible to vote in the decertification
election. 	SEIU was able to access the closed group and obtain this information because a
member
of
the closed group gave their log-in and password information to Abshare.
SEIU provides approximately 200 pages (some are duplicates)
of
screen shots of
discussions and postings on the closed group page. Many of the discussions and postings are
highly critical of SEIU. 	Sgt. Penry is apparently a member of the closed group, and the screen
shots indicate that during the pre-election period, Sgt. Penry posted a number of comments that
11

were critical
of
SEIU, and supportive
of
FCPSA President Gomez and the decertification effort
by FCPSA.
Member Borgeas and Assessor Dictos also appear to be members
of
the closed group.
SEIU alleges that Program Technicians in the Assessor Recorder's Office were eligible voters
in bargaining Unit 2.
SEIU provides a declaration by Mariann Coolidge who states that a flyer she posted on
her Face book page was reposted on the closed group page, without her consent, and that
derogatory remarks were made about her on the closed group page.
SEIU also provides a declaration by Lenora Licon, who served as a negotiator for ·
SEIU. 	SEIU asserts that FCPSA made a video recording
of
Licon when she was speaking at a
public meeting
of
the County's Board
of
Supervisors, and put the recording on the closed
group page. Licon does not have access to the closed group. Licon states that supporters
of
FCPSA also sent text messages to her accusing her
of
disseminating incorrect information.
The County asserts that a person can be added to a closed Face book page by a member
of
that page, without the person having to take any affirmative action to join the group. (See
Declaration
of
Carrie Kurtural, submitted by the County.) A person added to a group he/she
does not wish to belong to can delete themselves from the group by clicking on "leave the
group."
Sgt. Penry states that in January 2015 he received an invitation from Gomez to join the
closed Facebook page. Sgt. Penry states that he has expressed his personal opinions regarding
SEIU on this site while off duty and away from work. He further states that his opinions were
his own and no one told him what he could or could not write.
The County provides a declaratio~ by Member Borgeas. He states he was informed on
August
11
that his name was on a membership page for the closed Facebook group. Prior to
12

this date, he was unaware
that
he was a member
of
this closed group and he did not take any
steps to become linked with this closed group. Member Borgeas has a public Facebook page
with over 2,500 friends, and members
of
his staff administer the page. The County also
provides a declaration by Assessor Dictos, who likewise states that on August 10 he was
informed that he was a member
of
the closed Facebook group, but he does not recall taking any
steps to
join
the group or being nptified that the group existed.
The FCPSA's President Gomez states in his declaration that he is the administrator
of
the closed Face book group. He added Member Borgeas to the closed group. He never spoke
to Member Borgeas about the decertification effort.
F. 	Other Relevant Facts
On August 3, SEIU attorney Steele sent a letter, by e-mail message, to County Counsel
Catherine Basham (Basham) stating that FCPSA representatives were soliciting employees in
work
area_s,
on work time; that Sgt. Penry was questioning and influencing bargaining unit
members, and that there was a closed Facebook group that was being supported by Member
Borgeas and Sgt. Penry. Basham was out
of
the office and the County asserts that Basham did
not receive the letter until August 9. According to documents provided by the County, Basham
sent a reply e-mail message to Steele on August 9, stating that she had been out
of
the office,
that she expected Steele would have received an automatic out-of-office message, and that she
did not know
if
Steele had contacted anyone else with this information in Basham' s absence.
The County provides a declaration from Captain Vega
of
the County Sheriffs Office.
Captain Vega states that no one from SEIU contacted him during the pre-election period with
any concerns related to the decertification election. County Sheriff Mims states in her
declaration that on August 10, she received a copy of Steele's letter to Basham dated August 3.
Sheriff Mims states that prior to receipt of this letter she was not aware of the closed Facebook
13

group, nor did she have any information that any manager in the Sheriff's Office had taken or
expressed any opinion regarding the decertification election.
DISCUSSION AND CONCLUSIONS
As noted above, PERB Regulation 33009 allows for election objections under only two
grounds: (1) the conduct complained
of
interfered with the employees' right to freely choose a
representative, or (2) there was serious irregularity in the conduct
of
the election. The party
raising objections to an election must make a prima facie showing
of
conduct establishing the
grounds for the objections. (Poway Unified School District (2000) PERB Order No. Ad-306
(Poway).) This includes a factual showing that: (1) employee choice was affected or (2) the
conduct complained
of
had the natural and probable effect
of
impacting employee choice.
(Ibid., citing Pasadena Unified School District (1985) PERB Decision No. 530, Jefferson
Elementary School District (1981) PERB Decision No. 164, San Ramon Valley Unified School
District (1979) PERB Decision No. 111, and Santa Monica Unified School District and Santa
Monica Community College District (1978) PERB Decision No. 52.)15
After this threshold showing is met, PERB then must decide whether to set aside the
election result depending "upon the totality
of
the circumstances raised in each case and, where
appropriate, the cumulative effect
of
the conduct which forms the basis for the relief
requested." (Ibid., citing Clovis Unified School District (1984) PERB Decision No. 389 and
State
of
California (Departments
of
Personnel Administration, Developmental Services, and
15
No administrative determination or Board decision has yet addressed election
objections regarding SMCS under PERB Regulation 33009. However, the language of PERB
Regulation 33009 is identical to that of PERB Regulation 32738, concerning objections to
elections conducted by PERB. The cases cited herein were decided under PERB Regulation
32738 and are therefore applicable in analyzing identical language in PERB Regulation 33009.
14

Mental Health) (1986) PERB Decision No. 601-S.) Even where some impact upon voters can
be
inferred, the election result will not necessarily be set aside. (lbid.)
16
PERB must ensure that elections are conducted without undue interference from
parties, but must also ensure that employees' votes are not unnecessarily set aside. (State
of
California (Department
of
Personnel Administration) (1992) PERB Decision No. 948-S.)
Election objection cases involve a balancing
of
competing interests, and therefore PERB must
weigh whether alleged misconduct was sufficient to affect the outcome. (Ibid.)
It is against these standards that SEIU's objections must be considered.
A. 	Early Mailing of Voter's Packets
PERB' s consistent policy and practice has been to conduct election proceedings with
the highest degree
of
detail and care. (Poway, supra, PERB Order No. Ad-306.) This is to
ensure that all parties have full confidence in the election process, and are assured
of
a fair and
neutral result. However, an election does not need to be perfect in order to be valid. The
question is whether any mistakes are sufficient to affect the outcome
of
the election. (State
of
California (Departments
of
Personnel Administration, Developmental Services, and Mental
Health) (1986) PERB Decision No. 601-S.)
Historically, PERB has not hesitated to question the conduct
of
its own Board agents
when conducting an election. In Poway, supra, PERB Order No. Ad-306, the Board affirmed
the Regional Director's decision to void the results
of
a decertification election where three
separate ballot
counts-the
second and third counts conducted after additional ballots were
discovered-yielded three different results. The Board concluded that the Board agent
16
PERB has rejected the rigid application of the NLRB' s "laboratory conditions" test.
(Poway, supra, PERB Order No. Ad-306, citing Sierra Sands Unified School District (1993)
PERB Decision No. 977.) However PERB may, and does, look for guidance to NLRB
decisions in election objections cases. (Gilroy, supra, PERB Order No. Ad-226, citing State
of
California (1982) PERB Decision No. 198.)
15

conducting the election had committed "critical errors," in failing to count ballots that had been
received, thus constituting a serious irregularity and raising doubts as to the fundamental
integrity
of
the election. Clearly, the failure to count votes properly cast disenfranchises voters
and creates an inaccurate result.
In Jefferson Elementary School District (1981) PERB Decision No. 164, the Board
authorized the subpoenaing and cross-examination
of
two Board agents, one accused
of
disseminating inaccurate information during an election period, and the other accused
of
failing to halt alleged electioneering at the polling location. While ultimately exonerated
of
any wrongdoing in that case, both Board agents were subjected to intense scrutiny and to an
objective examination
of
whether their conduct had affected the results
of
the election.
In both Poway and Jefferson Elementary School District, the Board made clear that the
election process must be transparent, free from error, and capable
of
withstanding close inquiry
in the event
of
an objection. PERB holds itself and its agents to the highest standards because
of
the public trust that has been placed upon PERB to conduct fair and neutral elections. (See,
e.g., Poway, supra, PERB Order No. Ad-306.) SMCS personnel are held to the same high
standards, by virtue
of
the critically important work they perform as neutrals.
17
Here, the CEA expressly provided that voter packets would be mailed on July 20.
There is no dispute that the Election Supervisor erroneously mailed the voter packets on the
evening
of
Thursday, July 16. Several members
of
the bargaining unit received their voter
packets as early as July 18. It also appears that the Election Supervisor's error in mailing the
17
SMCS has provided the State with qualified professional mediators and neutrals,
since 1947 - nearly 30 years longer than PERB. In July 2012, SMCS was administratively
transferred from the Department of Industrial Relations to become a division of PERB. The
regulations specifically authorizing SMCS to conduct consent elections for MMBA
jurisdictions took effect in October 2013. However, SMCS has been conducting elections in
the public sector for much of its history. (See Fecher, CPER Pocket Guide to Public Sector
Mediation in California (2012).)
16

voter's packets early was completely inadvertent. There is nothing to suggest that the early
mailing was deliberate or designed to favor a party, or done by pre-arrangement with a party.
It further appears that no party brought the early mailing
of
the voter's packets to the attention
of
SMCS prior to the ballot count.
18
While it is clear that a mistake was made, it must also be
established that this mistake had the natural and probable effect
of
impacting employee choice.
In Gilroy Unified School District (1991) PERB Order No. Ad-226, PERB considered
NLRB authority, noting that,
"in
assuring the integrity
of
the election process the [NLRB] goes
to great lengths to ensure that the manner in which elections are conducted raises no reasonable
doubt as to their fairness or validity." (Citing Brink's Armored Car, Inc. (1986) 278 NLRB
No. 16.)
In Gilroy, PERB conducted an on-site election, that also allowed for specified voters to
vote by mail (certain employees on leaves
of
absence or who would be out
of
town). PERB
conducted the election pursuant to a Directed Election Order (DEO), however the parties
agreed on many
of
the key terms, including the definition
of
which employees would be
allowed mail ballots. The employer, a school district, provided PERB with a list
of
names
of
employees who were to receive mail ballots. However, the employer also provided PERB with
a supplemental list
of
"absentee voters" that had been provided by California Teachers
Association (CTA), a party to the election. PERB allowed employees on both lists to vote by
mail. PERB's use of the supplemental list was not contemplated by the DEO, and this allowed
a much larger number
of
individuals to vote by mail than had been agreed to and specified in
the DEO. Because the mail ballots were a different color than the on-site ballots, PERB was
able to discern a significant difference in the results, such that it became evident that
18
SEIU did not tell the County either; the letter by Steele to Basham dated August 3,
raising concerns about pre-election conduct, does not mention the early mailing of the ballots.
17

individuals who had mailed ballots overwhelmingly favored CT
A-the
party that had provided
the improper supplemental list.
In Gilroy, PERB concluded that objections regarding various minor delays in service
and the mailing
of
the lists were de minimus and insufficient to set aside the election.
However, PERB did find that the use
of
the supplemental list and the mailing
of
ballots to a
number
of
individuals not entitled to mail ballots under the DEO constituted sufficient grounds
for setting aside the election. PERB considered the DEO's provision defining the group
of
employees entitled to receive mail ballots and found that it had not been complied with:
... it is undisputed that all parties agreed to this provision
of
the
[DEO]. The board has held that the provisions
of
a consent
election agreement control the terms and conditions
of
an
election, including voter eligibility. [Citations omitted.] The
same rule must be held to apply to the provisions
of
a directed
election order, especially where the relevant provisions are in fact
the result
of
the parties' agreement.
The NLRB similarly has set aside election results on the basis that there was some error
in the mechanics
of
the election, or a failure to comply with the election agreement. For
example, inAthbro Precision Engineering Corp. (1967) 166 NLRB No. 116, the NLRB set
aside an election where a ballot box had been left open and unattended for a few minutes, even
though there was no claim that the ballots had actually been tampered with. The NLRB will
also set aside an election where a material term
of
an election agreement has been breached,
stating that the parties to an election are entitled to have the provisions
of
their agreement
diligently upheld. (T & L Leasing (1995) 318 NLRB No. 28.) Posting Notices of Election
seven or eight hours later than scheduled is also grounds to set aside an election. (Sara Lee
Bakery Group (2004) 342 NLRB No. 12.) Under these authorities, the inadvertent early
mailing of voter's packets by SMCS was a deviation from a material term of the parties' CEA.
18

The early mailing also had the practical effect
of
enlarging the voting period beyond the
period contemplated by the parties' CEA. The NLRB has established a bright-line rule strictly
enforcing polling times and prohibiting voters from voting in an on-site election
if
they are not
present during the time the polls are open. (Monte Vista Disposal
Co.
(1992) 307 NLRB No.
93.) Voters who arrive late, after the polls close, are not permitted to vote. (Ibid.) The NLRB
has applied this rul~ equally to voters who arrive early, before the polls open. (Rosewood Care
Center (1994) 315 NLRB 746,
enf
(8th Cir. 1996)
83
F. 3d 1028.) By analogy, here the
employees were improperly permitted to "arrive early" and cast their ballots several days prior
to the start
of
the voting period as set forth in the CEA.
The unanticipated expansion
of
the voting period created an unknown impact upon the
results
of
the election. Verifying the actual impact upon voters would, under these particular
circumstances, be impossible. SMCS does not keep track
of
which voters returned ballots on
what day, nor does it track whether voters on different days did or would have voted for one
union in favor
of
the other. The process
of
secret balloting means that the ballots, their
choices, and their date
of
return, are anonymous in every respect. It would work a prejudicial
unfairness for PERB to require a
party-SEIU
in this
case-to
empirically prove that the
longer voting period actually impacted results. It is enough to show that the early mailing was
a material deviation from the terms
of
the CEA and had a probable effect upon the outcome.
SMCS made an inadvertent and honest error, but the parties should not have to bear the
consequences
of
that error.
PERB decides whether to set aside the election result depending upon the totality
of
the
circumstances and, where appropriate, the cumulative effect of the conduct alleged. (Poway,
supra, PERB Order No. Ad-306.) In an abundance of caution, and in light of the specific
circumstances set forth herein, the election results must be set aside and the election re-run.
19

B. 	Other Objections
Because the inadvertent early mailing
of
the voter's packets warrants setting aside the
results
of
the election, it is not necessary for PERB to rule on SEIU's other election objections.
PROPOSED ORDER
Based on the entire record in this matter and applicable law, the objection to the
election based on the early mailing
of
the voter packets, is hereby SUSTAINED. The parties
are directed to make themselves available to SMCS in order to revise the consent election
agreement for a rerun election. SMCS will work with the parties to establish a new voting
period and mail ballot election consistent with the parties' agreement.
RIGHT OF APPEAL
An appeal
of
this decision to the Board itself may be made within ten calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8,
§§
33010; 32360.) To
be timely filed, the original and five 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) and32130; 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
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
20

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
any 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
copies
of
a response to the appeal within ten calendar days following the date
of
service
of
the
appeal. (Cal. Code Regs., tit.
8,
§ 32375.)
Service
All documents authorized to be filed herein must also be "served" upon all parties to
the proceeding and on the 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 when deposited in the mail or with a delivery service properly
addressed, or when sent by facsimile transmission in accordance with the requirements
of
California Code
of
Regulations, title 8, sections 32090 and 32135, subdivision (d).
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 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
21

accompanied by
proof
of
service
of
the request upon each party. (Cal. Code Regs., tit. 8,
§ 32132.)
Laura Z. Davis
Senior Regional Attorney
22