Omnitrans (PERB 2010M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

AMALGAMATED TRANSIT UNION,
LOCAL 1704,
Charging Party, Case No. LA-CE-372-M
Vv. PERB Decision No. 2010-M
OMNITRANS, March 10, 2009
Respondent.

Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn, Attorney, for
Amalgamated Transit Union, Local 1704; Carol A. Greene, Deputy County Counsel, for
Omnitrans.
Before Rystrom, Chair, McKeag and Neuwald, Members.
DECISION

RYSTROM, Chair: This case comes before the Public Employment Relations Board
(Board) on appeal by Omnitrans of a proposed decision (attached) by an administrative law
judge (ALJ). The unfair practice charge alleged that Omnitrans violated the Meyers-Milias-
Brown Act (MMBA)! when it rejected a grievance because it was filed by Amalgamated
Transit Union, Local 1704 (ATU) on its own behalf. ATU alleged that this conduct constituted
a violation of MMBA sections 3502, 3503, 3505 and 3506.

Relying on a series of cases arising under the Educational Employment Relations Act

(EERA)’, the ALJ ruled that ATU had a statutory right under the MMBA to file grievances in

‘MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

"EERA is codified at Government Code section 3540 et seq.

its own name and that it did not waive that right. Accordingly, the ALJ held that Omnitrans'
refusal to process grievances filed by ATU in its own name unlawfully denied ATU its rights
to represent its employees in violation of MMBA section 3503 and also unlawfully interfered
with the rights of employees in violation of MMBA section 3506.
The Board has reviewed the entire record in this matter and finds the proposed decision
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the proposed decision as a decision of the Board itself.
ORDER
Based on the foregoing findings of fact and conclusions oflaw, and the entire record in
the case, it is found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA),
Government Code section 3500 and following, by refusing to process grievances filed by the
Amalgamated Transit Union, Local 1704 (ATU).
Pursuant to section 3509(b) of the MMBA, it hereby is ORDERED that Omnitrans, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Refusing to process grievances filed by ATU.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Process those grievances that have not been processed because they were
filed by ATU.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to Omnitrans employees customarily are posted, copies
of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent of Omnitrans, indicating that it will comply with the terms of this Order. Such posting
2

shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. 	Omnitrans shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on ATU.
Members McKeag and Neuwald joined in this Decision.
3

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-372-M, Amalgamated Transit
Union, Local 1704 v. Omnitrans, in which all parties had the right to participate, it has been
found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA), Government Code
section 3500 and following, by refusing to process grievances filed by the Amalgamated
Transit Union, Local 1704 (ATU).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Refusing to process grievances filed by ATU.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Process those grievances that have not been processed because they were filed
by ATU.
Dated: 	OMNITRANS
By: --------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED TRANSIT UNION LOCAL
1704,
Charging Party,
V.
OMNITRANS,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-372-M
PROPOSED DECISION
(6/5/2008)
Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn, Attorney, for
Amalgamated Transit Union Local 1704; County of San Bernardino by Carol A. Greene,
Deputy County Counsel, for Omnitrans.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that a public agency unlawfully interfered with the union's
right to file grievances, in alleged violation of the Meyers-Milias-Brown Act (MMBA).1 The
public agency denies any violation.
The Amalgamated Transit Union Local 1704 (A TU or Union) filed an unfair practice
charge against Omnitrans (Omnitrans or Agency) on April 12, 2007. The General Counsel of
the Public Employment Relations Board (PERB) issued a complaint against Omnitrans on
October 3, 2007. 	Omnitrans filed an answer to the complaint on October 23, 2007.
PERB held an informal settlement conference on November 2, 2007, but the case was
not settled, so PERB held a formal hearing on January 8, 2008. 	With the receipt of the final
post-hearing brief on March 17, 2008, the case was submitted for decision.
1 MMBA is codified at Government code section 3500 and following.

FINDINGS OF FACT
Omnitrans is a public agency under MMBA. The Union is a recognized employee
organization under MMBA and the exclusive representative
of
an appropriate unit
of
Omnitrans employees.
There is little in the way
of
a factual dispute in this case. 	The PERB complaint alleged
in part:
3. 	On or about October 26, 2006, November 20, 2006, and
November 27, 2006, Charging Party [the Union] filed three
grievances pursuant to Article 22 "Grievance Procedure"
of
the
parties' memorandum
of
understanding (MOU). 	Respondent
[Omni trans] denied each
of
the Charging Party's grievances on
the sole basis that under Article 22
of
the parties' MOU,
Charging Party is not entitled to file grievances in its own name
and without the participation
of
an aggrieved employee.
The evidence at hearing showed this allegation was essentially correct.
On October 26, 2006, Omnitrans denied a Union-filed grievance with the following
explanation:
Your request for relief makes it clear that you are submitting this
grievance by the A TU 1704 Bargaining Unit on behalf
of
the
Union itself and that it is not a grievance regarding a specific
situation or occurrence
of
an aggrieved employee.· According to
the MOU, only an aggrieved employee with a specific situation or
occurrence can submit a grievance using this procedure (Article
22).
On November 20 and 27, 2006, Omnitrans rejected two other Union-filed grievances with
similar explanations.
Article 22 (Grievance Procedure)
of
the then-current Memorandum
of
Understanding
(MOU) provided in part:
2

DEFINITION
A.	
A grievance
is
defined as:
1.	
An alleged violation or noncompliance with the provisions
of
this M.O.U., the Agency's written personnel rules and
regulations, or department rule[
s]
and regulations. No policy or
practice can violate a written term
of
the M.O.U.
2.	
It is further agreed that this grievance procedure will apply to
any alleged violation
of
[sic] noncompliance with the provisions
of
the M.O.U., the Agency's written personnel rules and
regulations, [or] department rules and regulations unless
otherwise agreed by the parties. No policy or practice can violate
a written term
of
the M.O.U.
PROCEDURE
Any grievance or dispute which may arise between the parties
including the application, meaning or interpretation
of
this
M.O.U., will proceed in the following manner.
INFORMAL REVIEW
The employee, with or without an ATU Representative, must
discuss and attempt to resolve the grievance with a
Transportation Manager who must respond as part
of
the informal
review step before the formal steps are pursued.
FORMAL PROCEDURE
The procedures outlined herein constitute the formal steps
necessary to resolve any employee's grievance.
FORMAL STEPS
Step l.
If
the grievance has not been informally resolved with the
appropriate Transportation Manager, it may be presented, in
writing, by the employee, with or without an ATU
Representative, to the Director
of
Operations
....
Step 2.
If
the grievance has not been resolved in Step 1, it shall
be presented by the employee, with or without the ATU
representative, to the CEO/General Manager, in writing within
fifteen (15) calendar days after the response of the Director of
Operations or their designee is received. 	. . .
3

Step 3. If the grievance is not resolved in Step 2 and if the
grievance is a dispute over this MOU' s interpretation, or if it is
over a disciplinary action that resulted in a written caution,
suspension or termination, with ten (10) calendar days after the
completion of Step 2, the employee, with the ATU representative,
may request, in writing, that the grievance be referred to a
Grievance Committee, made up of a representative appointed by
the Agency, a representative appointed by the ATU and a third
party mutually selected by the parties ....
This version of Article 22 was effective from April 1, 2004, through March 31, 2007.
At the same time, the MOU's fifty-eight other articles included at least seven that
concerned the rights of the Union: 	Article 14 (Notice to New Employees), Article 15
(Information to the Union), Article 16 (Orientation), Article 17 (Agency Shop Provisions),
Article 18 (Access to On Duty Employees), Article 19 (Shop Steward's Provision), and Article
20 (Use of Bulletin Boards).
ISSUE
Did Omnitrans unlawfully interfere with the Union's right to file grievances?
CONCLUSIONS OF LAW
In Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista),
PERB held that under the Educational Employment Relations Act (EERA)2 an exclusive
representative has a basic statutory right to file grievances in its own name. 3 PERB based this
holding on EERA section 3543.l(a), which states in part, "Employee organizations shall have
the right to represent their members in their employment relations with public school
employers." MMBA section 3503 similarly states in part, "Recognized employee
2 EERA is codified at Government Code section 3540 and following.
3 See also South Bay Union School Dist. v. Public Employment Relations Bd. ( 1991)
228 Cal.App.3d 502 [279 Cal.Rptr. 135].
4

organizations shall have the right to represent their members in their employment relations
with public agencies."
In Chula Vista, PERB adopted the following analysis:
The system
of
labor relations created by the EERA envisioned
employees acting collectively through a chosen representative to
bargain with their employer about matters within the scope
of
representation. 	The grievance procedure is a contractual tool for
enforcing the results
of
a negotiated agreement. 	For contract
violations to be grievable and arbitrable only by the initiation
of
an individual employee runs counter to the EERA's statutory
system
of
collective action. In a system
of
collective bargaining,
the ability to challenge contractual [sic] violations must lie with
the party that negotiated the contract, i.e., the exclusive
representative. 	Any other system makes the viability
of
the
contract dependent upon the willingness
of
each unit member to
stand individually.
(Chula Vista, supra, PERB Decision No. 834.) This analysis appears equally applicable to the
system
of
labor relations created by MMBA.
PERB has left open the possibility that an exclusive representative's basic statutory
right to file grievances in its own name might be subject to waiver. 	In South Bay Union
School District (1990) PERB Decision No. 791, one PERB member, in a concurring opinion,
said he would have found the right to be nonwaivable, but no other member has ever expressed
agreement with such a finding. 	In Chula Vista, PERB relied in part on Marine & Shipbuilding
Workers v. NLRB (3d Cir. 1963) 320 F.2d 615 [53 LRRM 2878], in which the court
acknowledged that collective bargaining agreements might lawfully require employee
signatures on grievances. 	(Chula Vista, supra, PERB Decision No. 834.)
In Amador Valley Joint Union High School District (1978) PERB Decision No. 74,
PERB stated in part,
[G]enerally, waiver must be established by clear and
unmistakable language, and particularly where waiver
of
a
statutory right is asserted. 	[Footnotes omitted.]
5

See also Building Material & Construction Teamsters' Union v. Farrell (1986)
41
Cal.3d 651
[224 Cal.Rptr. 688] and the cases cited therein.
In only one case, Trustees
of
the California State University (1995) PERB Decision No.
1094-H, has PERB found a clear and unmistakable waiver
of
an exclusive representative's
right to file grievances in its own name. In that case, the collective bargaining agreement
stated in part:
The term "grievant" as used in this [grievance procedure] may
refer to the Union when alleging a violation
of
Union Rights as
provided for in this Agreement.
An arbitrator had held pursuant to this language that "union grievances must allege a violation
of
[the exclusive representative's] 'union rights' under [the union rights article
of
the
agreement]." PERB concluded that the exclusive representative had, through negotiation,
limited its ability to file grievances in its own name.4
In the present case, in contrast, there is no definition
of
the term "grievant" that limits
the Union's right to file grievances in its own name, nor is there anything in the definition
of
the term "grievance" that does so. On the contrary, the "Procedure" section
of
Article 22
states:
Any grievance or dispute which may arise between the parties
including the application, meaning or interpretation
of
this
M.O.U., will proceed in the following manner. 	[Emphasis
added.]
The parties to the MOU are,
of
course, Omnitrans and the Union.
4 PERB found the contractual waiver sufficiently clear that it did not find it necessary to
decide whether a statutory right was actually involved. 	The case arose under the Higher
Education Employer-Employee Relations Act, Government Code section 3560 and following,
which does not include language similar to that of EERA section 3543.1 (a) and MMBA section
3503.
6

It is true that the various steps of the grievance procedure in the MOU generally refer to
the grievant as "the employee," with or without a Union representative. As a description, this
may generally be accurate: 	in many cases the grievant will be an individual employee, with or
without a Union representative. I do not, however, find this language to be a clear and
unmistakable prescription that an individual employee must be the grievant, or a clear and
unmistakable proscription that the Union itself may not be the grievant.
Indeed, in some cases it would appear that the Union itself must be the grievant. 	There
are at least seven articles in the MOU (Articles 14-20) that concern the rights of the Union, not
the rights of individual employees. If "only an aggrieved employee with a specific situation or
occurrence can submit a grievance," as Omnitrans says, then it would appear that no one can
grieve a possible violation of those articles. If that is true, then the grievance procedure cannot
fulfill its stated purpose of addressing "[ a]ny grievance or dispute" between the parties
concerning the application, meaning or interpretation of the MOU.
I conclude that the Union had a basic statutory right to file grievances in its own name
and that it did not clearly and unmistakably waive that right. 	The refusal of Omnitrans to
process grievances filed by the Union thus denied the Union its rights, in violation of MMBA
section 3503. This conduct also interfered with the rights of employees, in violation of
MMBA section 3506.
REMEDY
MMBA section 3509(6) in part gives PERB jurisdiction to determine "whether the
charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate
the purposes of this chapter [MMBA]." In the present case, Omni trans has been found to have
violated MMBA by refusing to process grievances filed by the Union. It is therefore
appropriate to order Omnitrans to cease and desist from this conduct and to process those
7

gnevances.
	It
is also appropriate to order Omnitrans to post a notice incorporating the terms
of
the order in this case. 	(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that Omnitrans violated the Myers-Milias-Brown Act (Act), Government Code
section 3500 and following, by refusing to process grievances filed by the Amalgamated
Transit Union Local 1704 (Union).
Pursuant to section 3509(b)
of
the Government Code, it hereby is ORDERED that
Omnitrans, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Refusing to process grievances filed by the Union.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Process those grievances that have not been processed because they were
filed by the Union.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to Omnitrans employees customarily are posted, copies
of
the Notice attached hereto as an Appendix. 	The Notice must be signed by an authorized
agent
of
Omni trans, indicating that it will comply with the terms
of
this Order. 	Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. 	Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
8

or the General Counsel's designee. 	Respondent shall provide reports, in writing,
as
directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the Union.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
section 11020(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
California Code
of
Regulations, title
8,
section 32135(d),
provided the filing party also places the original, together with the required number
of
copies
and proof
of
service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 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
9

on a party or filed with the Board itself. 	(See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Thomas
J.
Alle
Administrative Law Judge