City of Glendale (PERB 2773M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 18,
Charging Party,
v.
CITY OF GLENDALE,
Respondent.
Case No. LA-CE-1254-M
PERB Decision No. 2773-M
June 28, 2021
GLENDALE CITY EMPLOYEES
ASSOCIATION,
Joined Party.
Appearances: Schwartz, Steinsapir, Dohrmann & Sommers by D. William Heine,
Attorney, for International Brotherhood of Electrical Workers, Local 18; Liebert Cassidy
Whitmore by Adrianna E. Guzman and Amit Katzir, Attorneys, for City of Glendale.
Before Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions and cross-exceptions to a proposed decision of
an administrative law judge (ALJ). The complaint alleged that the City of Glendale
violated its Employee Relations Ordinance (ERO), the Meyers-Milias-Brown Act

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(MMBA),1 and PERB Regulations2 by: failing to recuse the City Manager from
consideration of International Brotherhood of Electrical Workers, Local 18’s (IBEW)
severance petition despite his personal bias against IBEW; denying IBEW’s severance
petition; and requiring IBEW to demonstrate that its proposed unit of employees was
“more appropriate” than the existing unit representing those employees. The City’s
conduct was also alleged to have interfered with the right of bargaining unit employees
to be represented by IBEW and the right of IBEW to represent these employees.
Following a formal hearing, the ALJ dismissed the complaint and underlying unfair
practice charge.
The Board has reviewed the entire record in this matter and considered the
parties’ arguments in light of applicable law. We affirm the proposed decision based
upon the following findings and discussion.
PROCEDURAL BACKGROUND
On November 2, 2017, IBEW filed the underlying unfair practice charge alleging
that the City violated the MMBA, the ERO, and PERB Regulations by denying IBEW’s
petition to represent a proposed unit of employees in the City’s Integrated Waste
Management (IWM) Division. The employees in the proposed unit were already
represented by the Glendale City Employees Association (Association). IBEW further
alleged that the City’s adoption of an unreasonable local rule for unit determinations
1 The MMBA is codified at Government Code section 3500 et seq. All other
statutory references are to the Government Code unless otherwise indicated.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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and its unreasonable application of that rule violated the MMBA and PERB
Regulations.
On February 7, 2019, IBEW withdrew several allegations in the unfair practice
charge without prejudice, and PERB’s Office of the General Counsel (OGC) issued a
complaint on the remaining allegations. On March 4, 2019, the City filed an answer to
the complaint. OGC held an informal settlement conference on March 27, 2019, but it
was unsuccessful.
On July 29, 2019, the Association filed an application for joinder as a party. On
July 31, 2019, the ALJ granted the application.
The formal hearing took place on August 21, 22 and 28, and September 17,
2019. On December 31, 2019, the parties submitted post-hearing briefs.
On February 3, 2020, the Board issued City of Glendale (2020) PERB Decision
No. 2694-M (Glendale I) [judicial appeal pending]. On February 19, 2020, IBEW filed a
request to reopen the record to take administrative notice of Glendale I and to submit
supplemental briefing on the relevance of that decision. The City and the Association
opposed the request. On February 21, 2020, the ALJ issued an order denying the
request to reopen the record, as Glendale I constituted binding precedent for which no
administrative notice was necessary, but granting the request for supplemental
briefing. On March 4 and 11, 2020, IBEW and the City filed their respective
supplemental briefs. The Association did not file a supplemental brief. The ALJ issued
a proposed decision on May 12, 2020.

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FACTUAL BACKGROUND
The Parties
The City is a “public agency” within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a). IBEW is an “employee
organization” within the meaning of MMBA section 3501, subdivision (a), a
“recognized employee organization” within the meaning of MMBA section 3501,
subdivision (b), and an exclusive representative within the meaning of PERB
Regulation 32016, subdivision (b). IBEW represents a bargaining unit of full-time
salaried non-management and non-mid-management electrical, power, and water field
operations employees of Glendale Department of Water and Power (GWP).
The Association is an “employee organization” within the meaning of MMBA
section 3501, subdivision (a), a “recognized employee organization” within the
meaning of MMBA section 3501, subdivision (b), and an exclusive representative
within the meaning of PERB Regulation 32016, subdivision (b). It represents a
bargaining unit of full-time salaried non-management and non-mid-management
general employees of the City, including in the IWM Division of the City’s Public Works
Department, but excluding GWP.
Employee Relations Ordinance
In 1968, the City adopted an ERO pursuant to its authority under MMBA section
3507, subdivision (a). As relevant here, the ERO provides:
“Section 7. EMPLOYEE REPRESENTATION UNITS.
“(a) 	A petition for recognition as the representative of
employees in an appropriate employee representation unit
may be filed with the City Manager by an employee
organization.

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“(b) 	In the determination of appropriate employee
representation units, the following factors, among others,
are to be considered:
“(1) 	Which unit will assure employees the fullest freedom
in the exercise of rights granted under this Ordinance;
“(2) 	The community of interest of the employees;
“(3) 	The history of employee relations in the unit;
“(4) 	The effect of the unit on the efficient operation of the
public service and sound employee relations;
“(5) 	The effect on the existing classification structure of
dividing a single classification among two or more units;
and
“(6) 	No unit shall be established solely on the basis of the
extent to which employees in the proposed unit have
organized.
“(c) 	The City Manager shall determine the employee
representation unit using the factors set forth in (b) above.”
“Section 8. RECOGNITION OF EMPLOYEE
ORGANIZATIONS.
“(a) 	At the time of seeking recognition as the
representative of an employee representation unit, the
organization so seeking recognition must file with the City
Manager and the City Clerk, the Articles of Incorporation of
the organization, if the organization is incorporated; and if
the organization is a foreign corporation, it must also file
proof of its permission to do business in the State of
California. The organization must also file with the City
Manager and the City Clerk its Charter and Bylaws . . .
“(b) 	An organization seeking recognition must, after
complying with Section 8(a) above, present to the City
Manager proof that the organization represents a simple

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majority of the employees in the employee representation
unit, as said unit is determined pursuant to Section 7 above.”
IBEW’s Severance Petition
On March 31, 2017, IBEW filed a “Petition to City Manager for Recognition of
International Brotherhood of Electrical Workers, Local 18 (AFL-CIO) as the Exclusive
Representative of Integrated Waste Employees” (Petition). IBEW sought to represent
a unit of approximately 56 employees consisting of all full-time, non-management and
non-mid-management and non-supervisory positions or classifications in the IWM
Division of the City’s Public Works Department. The classifications to be included in
the unit were Integrated Waste Driver, Integrated Waste Worker, Maintenance Worker,
and Motor Sweeper Operator. Together with its Petition, IBEW provided 46 signed
authorization cards as proof of majority support. The cards read:
“I, the undersigned employee of the City of Glendale, no
longer desire to be represented by the Glendale City
Employees Association and hereby declare my support for
the decertification of GCEA as my exclusive representative
in the current bargaining unit. I hereby authorize
International Brotherhood of Electrical Workers, Local 18 to
become my exclusive representative for purposes of
meeting and conferring with my employer, the City of
Glendale, over wages, hours and all other terms and
conditions of my employment and representing me in all
matters of employer-employee relations.”
Response from the Director of Human Resources
On May 19, 2017, Matthew Doyle, the City’s Director of Human Resources,
issued a statement regarding the Petition. The statement referenced the fifth unit
determination factor, the effect on the existing classification structure of dividing a
single classification among two or more units. Doyle stated that one of the four

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classifications IBEW petitioned to represent, Maintenance Worker, was “a generic
classification, which performs more of a support or ancillary role, rather than a ‘core
mission’ function of the Integrated Waste Management Division.” Doyle further stated
that multiple City departments used the Maintenance Worker classification, noting that
only two of the six then-filled Maintenance Worker positions in the City were in the
IWM Division. With this in mind, he concluded that “the adverse effect and the City-
wide morale problems will be greater if employees, not working side-by-side, but
performing the same or a similar set of duties in another department are compensated
differently solely because they are represented by a different bargaining unit.” Doyle
therefore recommended against inclusion of the Maintenance Worker classification in
the proposed unit.
Response from the Association
On May 29, 2017, the Association filed an opposition to the Petition. The
Association contended that its general employees unit was the most appropriate unit
for the four classifications IBEW sought to sever, primarily because the Public Works
Department included four other divisions whose employees were all represented by
the Association. In analyzing the unit determination criteria under the ERO, the
Association argued that severing the four classifications would create two competing
bargaining units not only within the Public Works Department, but also within the IWM
Division. The Association requested that the City deny the Petition.
The Hearing and City Manager’s Determination
On June 1, 2017, City Manager Scott Ochoa held a hearing on the Petition at
which representatives for IBEW, the Association, and the City were present. Legal

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counsel for Ochoa in his capacity as City Manager also attended.3 On June 23, 2017,
IBEW and the Association filed post-hearing briefs.
Ochoa issued his decision denying the Petition on July 24, 2017, finding that
“the unit proposed by IBEW is not an appropriate unit.” Under the heading “Unit
Determination Criteria,” Ochoa analyzed each of the six unit determination criteria in
the ERO before ultimately denying the Petition, concluding: “Accordingly, because
IBEW has not demonstrated that its proposed unit is more appropriate than the
existing unit, the petition is denied.”
The City’s Alleged Bias Against IBEW
IBEW alleged that the City was biased in its handling of the Petition, based on
the following history between the parties.
1. 	Facts from Glendale I
On November 24, 2010, IBEW submitted a petition seeking to sever
approximately 54 GWP classifications from the bargaining unit represented by the
Association. (Glendale I, supra, PERB Decision No. 2694-M, p. 8.) On April 18, 2011,
the City formally recognized IBEW as the exclusive representative of the new GWP
Unit. (Ibid.)
Bargaining for a first contract between IBEW and the City commenced in June
2011 and continued through the summer of 2012. (Glendale I, supra, PERB Decision
No. 2694-M, p. 8.) It proved to be contentious, as well as unsuccessful, leading to
frustration that was expressed in e-mail messages between City managers during and
3 Ochoa was City Manager of Glendale from January 2012 through November
2017.

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after the lengthy negotiations process. (Id. at p. 25.) For example, Doyle referred to
IBEW supporters as “bums,” described their presence at City Council meetings as a
“mob,” and characterized the union’s tactics as “thuggery.” (Ibid.) Ochoa said of IBEW
that “[t]he rattlesnake commits suicide.” (Ibid.)
In Fall 2012, the City decided to lay off all employees in one IBEW-represented
classification and to assign the work performed by those employees to outside
contractors and City employees not represented by IBEW.
In April 2013, GWP management was considering a cross-training program for
IBEW-represented electrical employees, but electrical employees resisted the idea.
GWP General Manager Steve Zurn suggested laying off two employees, one of whom
had been a member of IBEW’s bargaining team, and having other IBEW-represented
employees “pick up the slack.” (Glendale I, supra, PERB Decision No. 2694-M, p. 28.)
Ochoa responded:
“Hard pill to swallow. But I think we continue to smile until
we implement [terms and conditions of employment]. They
want to bait us into an action that they can point to as [a]
basis for retaliation, a TRO on the implementation, etc.
That said, we need to organize all of this bullshit into a
single narrative that we can use for Council. I think the
complete body of subversive activity gets drowned out by
the [meet and confer] issues. Especially for the new
councilmember, we need to be able to tell a complete and
concise story.”
(Id. at p. 29.)
On May 7, 2013, at a regular meeting of the City Council, Doyle presented a
resolution to impose new terms on the IBEW bargaining unit. Following public
comment, Ochoa made a statement to the Council that IBEW was “a group that has

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heard only that what it wants to hear” and that “the philosophy of ‘I’ve got mine’ is that
which seeks to destroy those cities that are otherwise the 88 municipal corporations of
Los Angeles County.” By contrast, according to Ochoa, “all of our other association
groups . . . have sought to make sure the City remains a viable ongoing concern for
the community.”
Following a lengthy hearing and proposed decision by an ALJ, the Board held
that the City had declared impasse prematurely (Glendale I, supra, PERB Decision
No. 2694-M, pp. 60-63), that it thereafter engaged in bad faith conduct amounting to a
refusal to bargain (id. at pp. 63-67), and that it had imposed terms of employment that
could not have been lawfully imposed even following a legitimate, bona fide impasse
(id. at pp. 70-71). The Board further held that the City violated its obligation to bargain
by unilaterally contracting out and transferring work previously performed by IBEW-
represented employees. (Id. at pp. 36-55.) Most significantly in the present context,
the Board concluded that anti-union animus was at least one motivating cause of the
City’s decision to contract out and transfer traditional bargaining unit work:
“Like the ALJ, we find that animus against protected activity
was at least a motivating factor for the City’s [layoff]
decision. In reaching this conclusion, we consider all of the
facts recounted above, including numerous statements by
managers demonstrating anti-union animus and indicating
that employees should blame themselves and their union
for having caused the layoff.”
(Id. at pp. 57-58.)
2. 	2013 Severance Petition
On June 18, 2013, the Glendale Power Association (GPA), by its own
description “a self-governing unincorporated association,” filed a petition for

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recognition with the City. The GPA sought to represent 21 employees in a proposed
unit consisting of four classifications: Power Plant Control Operator, Power Plant
Control Operator Apprentice, Power Plant Operator, and Power Plant Auxiliary
Operator. At the time, IBEW represented the employees in the stated classifications.
GPA attached 18 “interest cards” as proof of majority support in the proposed unit.
On July 24, 2013, Ochoa held a hearing on the petition at which representatives
for GPA and counsel for IBEW were present. This was Ochoa’s first unit determination
hearing and decision. Prior to the 2013 hearing, he had not received any training in
making unit determinations, nor had he reviewed any of the City’s prior unit
determinations. The ERO does not prescribe any rules for conducting such hearings.
Both at the 2013 hearing on GPA’s petition and at the PERB hearing in the
instant matter, IBEW argued that GPA’s petition was procedurally deficient on several
counts. First, GPA’s petition failed to include GPA’s charter as required by the ERO for
an organization seeking recognition as the representative of a bargaining unit.
Second, GPA’s bylaws did not identify GPA as an “employee organization,” which the
City’s ERO defines as “any lawful organization which includes employees of the City
and which has as one of its primary purposes representing such employees in their
employment relations with the City.” Instead, GPA’s bylaws stated: “[t]he Glendale
Power Association, serving the employees of the City of Glendale California, is
committed to working together to achieve a better working environment for its
employees while working together with management to benefit the City of Glendale
California” and “[t]he purposes for which we have formed this Association are to
promote any issue that would improve the general welfare of all City employees” and

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“to have an active role in the collective bargaining process.” Third, GPA did not
present proof to the City Manager that it represented a simple majority of employees
in the proposed unit as required by the ERO. Rather, the “interest cards” GPA filed
with its petition stated only: “I am interested in joining the Glendale Power Association
(GPA).”
Furthermore, IBEW asserted that the manner in which Ochoa conducted the
2013 hearing demonstrated his bias against IBEW. First, at the 2013 hearing, IBEW’s
counsel asked Ochoa whether “the Chair [Ochoa] believes he will be impartial in this
determination.” Ochoa’s counsel interjected that “[t]he Chair need not answer
questions such as that.” IBEW’s counsel then moved for Ochoa to be disqualified from
conducting the hearing. Ochoa did not rule on the motion and instead determined that
the hearing should move forward. Ochoa stated that IBEW’s counsel would be given
an opportunity to address him “as to the appropriateness of this particular hearing.”
After IBEW’s counsel objected, Ochoa told him to sit down. IBEW’s counsel added:
“I think you are biased in this proceeding and cannot act in this position.” IBEW’s
attorney renewed this objection again later in the hearing.
After a representative for GPA had begun to make a statement in support of
GPA’s petition, IBEW’s counsel argued that the representative was testifying and
asked that he and other witnesses be put under oath. Ochoa denied the request,
commenting that “[t]his is not a court of law.”4 Ochoa again asked IBEW’s counsel to
be seated.
4 At the PERB hearing in the instant matter, Ochoa described the conduct of
unit determination hearings as a “very loose and informal process.”

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Also during the 2013 hearing, Ochoa asked a GPA representative, “Tell me a
little bit more about the issues relating to the similarity of the services that are
provided by the classifications in the group that you hope to represent and why that is
distinct from IBEW.” When IBEW’s counsel objected to the line of questioning as
leading, Ochoa told IBEW’s counsel that he would ask him the same question. At the
PERB hearing below, Ochoa explained that he “was trying to help [the GPA
representative] articulate what he was intending to communicate,” but he was “[n]ot
trying to goad him into one direction or another.”
Later during the 2013 hearing, IBEW’s counsel asked Ochoa if he would be
given an opportunity to ask questions of GPA’s witnesses. Counsel for the Chair said
no.
Still later during the same hearing, Ochoa asked a GPA witness: “Is there any
interest in moving back to [the Association]?”5 Following repeated objections by
IBEW’s counsel to this question as irrelevant, and repeated attempts by Ochoa to
move past those objections, the GPA witness answered that he did not believe there
was any such interest.
Following GPA’s unit determination hearing, GPA and IBEW filed post-hearing
briefs. On October 4, 2013, Ochoa denied GPA’s petition. After an “Introduction” and a
section summarizing the “July 24, 2013 Hearing,” Ochoa concluded under the heading
“Unit Determination”: “After reviewing and considering all the information submitted in
this matter, it is my decision that the unit proposed by GPA is not an appropriate unit.”
5 The classifications that GPA sought to represent had been formerly
represented by the Association before they were placed in IBEW’s bargaining unit.

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Under the heading “Unit Determination Criteria,” he then analyzed the six factors listed
in the City’s ERO. Finally, under the heading “Conclusion,” Ochoa stated:
“Accordingly, because GPA has not demonstrated that its proposed unit is more
appropriate than the existing unit, GPA’s Petition for Recognition is denied. This
determination renders moot the other issues IBEW raised in its post-hearing brief in
opposition to GPA’s petition, and thus, those other positions need not and shall not be
addressed in this determination.”
3. 	2017 Severance Petition
At the PERB hearing below, IBEW presented evidence in support of its
allegation that Yasmin Beers, Ochoa’s successor as City Manager, was biased
against IBEW and that her bias affected the City’s handling of IBEW’s Petition.
At the time of the hearing on IBEW’s Petition, Beers was Assistant City
Manager. She became interim City Manager in November 2017, and the City
appointed her as City Manager in February 2018. Beers attended but did not
participate in the June 1, 2017 hearing on the Petition. Ochoa did not consult with
Beers or receive any input from her regarding his decision on the Petition.
In November 2018, Beers held a meeting in her office with Assistant City
Manager Roubik Golanian and two employees in the IWM Division, Ignacio Saavedra
and Jason Mercado. Golanian was present at the meeting for approximately 45
minutes, but left toward the end of the meeting at Saavedra’s request. The ALJ made
a credibility determination that, during the meeting, Beers stated that she did not want
IBEW to represent employees in the IWM Division. However, the ALJ did not credit

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Saavedra’s testimony regarding similar statements Beers allegedly made to him in
2017 and early 2018.
DISCUSSION
The Board resolves exceptions to a proposed decision using a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5;
Hartnell Community College District (2018) PERB Decision No. 2567, p. 3.) Under this
standard, we review the entire record and are free to make different factual findings
and reach different legal conclusions than those in the proposed decision. (Eastern
Municipal Water District (2020) PERB Decision No. 2715-M, p. 7.) However, to the
extent that a proposed decision adequately addresses issues raised by certain
exceptions, the Board need not further analyze those exceptions. (City of San Ramon,
supra, PERB Decision No. 2571-M, p. 5.) The Board also need not address alleged
errors that would not impact the outcome. (Ibid.)
I. 	Timeliness of IBEW’s Exceptions
As an initial matter, the City argues that we should reject IBEW’s exceptions for
untimeliness. A party may file with the Board a statement of exceptions to a proposed
decision within 20 days following the date of service of the decision. (PERB Reg.
32300, subd. (a).) The statement of exceptions or supporting brief must state the
specific issues of procedure, fact, law or rationale to which each exception is taken;
identify the page or part of the decision to which each exception is taken; designate by
page citation or exhibit number the portions of the record, if any, relied upon for each
exception; and state the grounds for each exception. (Id., subds. (a)(1)-(4).)

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The ALJ issued his proposed decision on May 12, 2020. Pursuant to PERB
Regulation 32300, subdivision (a), any exceptions to the proposed decision were due
by June 1, 2020. IBEW subsequently requested and received four extensions of time
to file its exceptions, and the Appeals Office ultimately set June 30, 2020, as the new
due date. On June 30, 2020, at 5:20 p.m., IBEW electronically filed its statement of
exceptions, supporting brief, and request for official notice.6
Because IBEW filed its papers after the 5:00 p.m. close of business on June 30,
2020, PERB deemed them filed the next business day, July 1, 2020, pursuant to
extant PERB Regulations.7 (City of San Gabriel (2020) PERB Decision No. 2751-M,
p. 15, fn. 13.) Because the Appeals Office served its letter granting IBEW a fourth
extension of time via U.S. Mail, the time for responsive filings was extended by five
days to July 5, 2020. (PERB Reg. 32130, subd. (c).) Since July 5, 2020 was a Sunday,
the last day for filing was extended to Monday, July 6, 2020. (Id., subd. (b).) IBEW’s
6 The request for official notice contained a copy of Glendale I and copies of
local ordinances from seven different localities. The notice did not set forth IBEW’s
reasons for the request. However, in its supporting brief, IBEW stated, “In apparent
recognition of the inherent institutional bias that already exists when a local
government agent makes unit determinations, some local agencies assign the
responsibility for making the unit determinations to a neutral person or body.”
7 Subdivision (f) of PERB Regulation 32110, as added effective February 15,
2021, allows filers to electronically file a document through e-PERB at any time.
Documents filed after 11:59 p.m. on a business day, or at any time on a non-business
day, will be deemed filed the next regular PERB business day. A 5:00 p.m. deadline
still applies, however, to documents filed under PERB Regulation 32450, subdivision
(a), and OGC has full discretion to set deadlines for other injunctive relief filings under
PERB Regulation 32455.

17
exceptions thus were timely despite being deemed filed on July 1, 2020, instead of
June 30, 2020.
On July 8, 2020, IBEW filed a “Notice of Errata Re: Charging Party’s Statement
of Exceptions and Brief in Support of Exceptions,” “[Corrected] Statement of
Exceptions to Proposed Decision,” and “[Corrected] Charging Party’s Brief in Support
of Exceptions to ALJ’s Proposed Decision.” In the brief supporting IBEW’s errata,
IBEW’s counsel claimed that he was “unable to complete checking, correcting and
inserting citations and cross references and adequately proofread the documents for
typographical, spelling and other errors” due to the “length and the extraordinary
number of citations” in IBEW’s statement of exceptions and brief “filed on June 30,
2020.” IBEW’s counsel stated that he was filing corrected versions “to ensure that the
Board is able to locate in the record the testimony and exhibits cited and discussed in
the Statement of Exceptions and Brief” but “[n]one of these changes affect the
substance of these documents.” Attached to the notice were IBEW’s corrected
Statement of Exceptions with changes tracked in redline and its original brief.
IBEW’s “corrected” filings were not timely because they were filed after July 6,
2020. And IBEW presents us with no good cause to excuse its late filing. (See City
and County of San Francisco (2021) PERB Decision No. 2757-M, p. 9 [“In general,
good cause to excuse a late filing exists where the delay is of short duration and
based on circumstances that were either unanticipated or beyond the party’s
control”].) While PERB Regulations do not establish a right to file “corrected”
documents after the due date, that is inconsequential here as IBEW’s corrected
exceptions do not substantially aid our review of the proposed decision in any event.

18
Rather, IBEW largely reiterates arguments the ALJ addressed, often without citing to
the record as required by PERB Regulation 32300, subdivision (a). Thus, we consider
IBEW’s corrected exceptions only to the extent they include record citations that assist
our review.8
II. 	Facial Challenge to the ERO
The proposed decision found that IBEW waived the issue of whether the ERO
was facially unreasonable.9 The ALJ’s finding was based upon the following exchange
at the PERB hearing:
“MS. GUZMAN: In discussing your ruling on the subpoena
duces tecum, you mentioned something that I just want to
double-check. You mentioned that the hearing was going to
be about the reasonableness of the City's rules. And I had
understood that that portion of the unfair practice charge
was withdrawn from the –
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: You’re
right. And I mean, there is an earlier decision by this Board
that declared those rules reasonable. I’m well aware of this.
I just gave you the normal standard –
“MS. GUZMAN: Okay.
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: -- that is
applied. But you’re quite correct that, unless, I mean, you
know, you can argue otherwise, but it seems to me that the
8 The City argues that several of IBEW’s corrections are prejudicial because
“they require the City to consider and potentially respond to two sets of exceptions.”
Given that the City itself requested and received three extensions of time to file its
response to IBEW’s exceptions, and ultimately provided a single response to each
exception, whether corrected or not, we find the City’s argument unconvincing.
9 In addition, the ALJ found that IBEW arguably waived the issue much earlier,
in 2017, by failing to raise it at any time during the hearing on the Petition.

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reasonableness of the City’s rules indeed isn’t before me. Is
that correct, Mr. Heine?
“MR. HEINE: No, I think they are. The reasonableness of
the way he conducted the hearing –
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: That is
correct, but –
“MR. HEINE: There’s the application of the rules.
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: The
application of the rules is very much at issue. But the
reasonableness of the rules in theory or on paper –
“MR. HEINE: You’re talking about Section Seven of the
EERO.
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: Exactly,
exactly.
“MR. HEINE: No, that is not at issue.
“ADMINISTRATIVE LAW JUDGE ROHRBACHER: Right,
so I misspoke and created confusion. I apologize for that.
But you’re quite right.”
IBEW claims that the ALJ’s question and its counsel’s response were
ambiguous, and that its counsel’s statement could “only reasonably be taken as a
reference” to ERO Section 7, subdivisions (b)(1)-(6), which list the unit determination
factors and was the subject of the earlier decision the ALJ referenced above, not ERO
Section 7, subdivision (c), which vests the City Manager with the authority to make
unit determinations. However, we need not decide if IBEW clearly waived any facial
challenge to the ERO because IBEW has not established such a violation.

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To prevail in a facial challenge, a charging party must at a minimum show that a
local rule conflicts with the MMBA “in the generality or great majority of cases.” (City
and County of San Francisco (2020) PERB Decision No. 2691-M, p. 22 [judicial
appeal pending].) Toward that end, IBEW argues that the City’s ERO is unreasonable
because it appoints the City Manager, an “agent of the City compelled to act in the
interest of the City,” to make unit determinations. IBEW’s argument misses the mark.
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt
reasonable rules and regulations after consultation in good faith with representatives
of a recognized employee organization or organizations for the administration of
employer-employee relations.” (Ibid.) The rules and regulations may include provisions
for, among other things, recognition of employee organizations. (Id., subd. (a)(3).) Unit
determinations must be handled and processed in accordance with rules adopted by a
local public agency. (Id., § 3507.1, subd. (a).)10
Contrary to IBEW’s bare claim, nothing in the MMBA’s statutory language
expressly or impliedly prohibits agency employers from making unit determinations.
Well before PERB assumed jurisdiction over the MMBA in 2001, local agencies were
authorized to make initial determinations as to the appropriateness of bargaining units.
(Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 60.) The
standard then, as now, is whether such a determination is reasonable. (Reinbold v.
10 The MMBA is one of three statutes PERB administers that empower local
agencies to adopt reasonable rules and regulations for recognition of employee
organizations. (See §§ 3507, subd. (a); 71636, subd. (a) [Trial Court Employment
Protection and Governance Act]; 71823, subd. (a) [Trial Court Interpreter Employment
and Labor Relations Act].)

21
City of Santa Monica (1976) 63 Cal.App.3d 433, 440; Santa Clara Valley Water
District (2017) PERB Decision No. 2531-M, pp. 10-11.) The mere fact that a local rule
allows for a local agency’s agent or governing board to have the final authority on
representation issues does not make the rule unreasonable. (County of Orange (2010)
PERB Decision No. 2138-M, pp. 13-14; County of Ventura (2009) PERB Decision
No. 2067-M, p. 12; County of Monterey (2004) PERB Decision No. 1663-M, p. 10.)
Thus, the ERO does not facially violate the MMBA merely by vesting the City Manager
with the authority to process and hear unit determination petitions.11
For the same reason, we reject IBEW’s corollary contention that the Board
should apply a heightened level of scrutiny to a local agency employer’s unit
determination when an agent of the employer oversees the recognition process. IBEW
presents no authority for that proposition, nor have we found any. Inherent in IBEW’s
argument is the assumption that unit recognition petitions are fundamentally adverse
to the interests of an employer, and that PERB therefore must presume a likelihood of
bias if an employer vests its agent with authority to adjudicate such issues. We
operate under no such presumption, however, and instead find bias or unlawful motive
only where the record proves it by a preponderance of the evidence. (See, e.g.,
Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 33
11 Because the MMBA’s structure leaves no doubt that ERO Section 7,
subdivision (c) is facially valid, we deny as irrelevant IBEW’s request for official notice
of selected other entities’ local rules regarding unit determinations under the MMBA.

22
[judicial appeal pending] [record showed that in considering unit appropriateness
issue, employer did not act in good faith].)12
In sum, for over four decades the MMBA has permitted local agencies, and by
extension their agents such as employee relations officers and human resources
managers, to preside over unit determinations pursuant to their own reasonable local
regulations. That statutory authority remains intact. We thus reject IBEW’s facial
challenge.
III. 	Ochoa’s Alleged Bias
As part of its as-applied challenge, IBEW contends that Ochoa demonstrated
personal bias against IBEW in prior dealings and therefore should have recused
himself from considering the Petition. The ALJ found that IBEW did not establish the
merits of this claim and also arguably waived it by not raising it at any time during the
Petition proceedings in 2017. Although the ALJ incorrectly analyzed the merits of the
claim, we ultimately dismiss the claim on waiver grounds.
Beginning with the waiver analysis, we find that IBEW should have requested
before or during the 2017 unit determination hearing that the City replace Ochoa or
12 For the reasons stated in Member Shiners’ dissent in Salinas Valley
Memorial Hospital District, supra, PERB Decision No. 2689-M, he would continue to
follow long-standing precedent holding that a public agency’s subjective intent is
irrelevant in deciding whether a local rule is reasonable on its face or as applied. (Id.
at pp. 46-47 (dis. opn. of Shiners, M.); City and County of San Francisco (2017) PERB
Decision No. 2540-M, p. 23 & fn. 14.) He recognizes, however, that a local rule
granting a particular agency officer authority to make unit determinations may be
unreasonable as applied when the officer is biased against one of the parties. Member
Shiners accordingly joins in the discussion, post, of whether Ochoa’s alleged bias
rendered ERO Section 7, subdivision (c) unreasonable as applied here.

23
that he recuse himself from hearing the Petition. Courts have routinely held that a
party must move for recusal at a hearing itself to preserve any such claim on appeal.
(See, e.g., People v. Cowan (2010) 50 Cal.4th 401, 455 [defendant forfeited any claim
that judge was prohibited from ruling on a motion after he recused himself from the
case where defendant affirmatively sought a ruling from the recused judge and did not
object to the judge’s ruling on the motion]; People v. Flinner (2020) 10 Cal.5th 686,
712 [defendant waived his appellate claim that trial judge was biased against him as
he failed to request the judge’s recusal at the trial below].) Similarly, as the ALJ noted,
we have found that a party’s failure to request recusal of a Board agent at the outset
of the investigation of an unfair practice charge resulted in waiver of the issue on
exceptions before the Board. (County of Riverside (2014) PERB Decision No. 2360-M,
pp. 28-29.) We have found the same to be true of a party’s failure to move for recusal
of a Board member upon filing of its exceptions. (County of Tulare (2016) PERB
Decision No. 2461a-M, pp. 3-4.) The core principle is that “[e]vidence of bias or any
lack of neutrality by PERB, its ALJs or any of its agents should be brought to the
attention of the Board immediately.” (Hacienda-La Puente Unified School District
(1997) PERB Decision No. 1186, p. 11.)
In the instant case, IBEW had several opportunities after it filed its Petition to
move for the City to replace Ochoa or to ask Ochoa to recuse himself: for instance,
when it submitted its pre-hearing brief to Ochoa on March 19, 2017, participated in the
unit determination hearing on June 1, 2017, or submitted its post-hearing brief to
Ochoa on June 23, 2017. Unlike the 2013 hearing on GPA’s severance petition, during
which IBEW’s counsel moved for Ochoa’s recusal, IBEW inexplicably failed to make

24
the same request during the 2017 hearing on its Petition, which would have been the
most logical time to do so. Instead, IBEW argued for the first time at the PERB hearing
that Ochoa’s bias disqualified him from considering the Petition. IBEW claims that it
would have been futile to move for Ochoa’s recusal at the 2017 hearing because
Ochoa denied IBEW’s similar request at the 2013 hearing on GPA’s petition. The 2013
events standing alone are not sufficient to establish futility, and IBEW therefore should
have afforded the City an opportunity to address the issue and, in doing so, preserve
its position that the City was unreasonably applying its ERO by letting Ochoa decide
the appropriateness of the petitioned-for unit.
Although we reject IBEW’s exception on procedural grounds, we exercise our
discretion to address the substance of IBEW’s claim to provide guidance to the labor-
management community. We agree with IBEW’s assertion that the ALJ wrongly
presumed Ochoa’s bias was extinguished by the passage of time. In the absence of
Board precedent on this issue, the ALJ analogized to Board decisions addressing
retaliation claims—specifically, when temporal proximity between protected activity by
an employee and allegedly retaliatory conduct by an employer can constitute evidence
of a causal connection between the two. The ALJ concluded that evidence of Ochoa’s
bias from 2013 was “too remote in time” to prove that Ochoa was still biased against
IBEW four years later when he conducted IBEW’s unit determination hearing and
rendered the decision on IBEW’s Petition.
In the context of retaliation allegations, the Board has found that “proximity in
time between the protected activity and the adverse action goes to the strength of the
inference of unlawful motive, but is not determinative by itself.” (Regents of the

25
University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H,
p. 12.) We recently elaborated on the timing nexus in the following way:
“We therefore continue to reject any bright line finding that
certain time lags are so remote that timing alone could
defeat a retaliation claim, irrespective of the other evidence.
Indeed, even where an employee engages in protected
activity for ‘a long period of time without incident,’ such
timing does not necessarily undercut the employee’s claim.
This may be true, for instance, because there may not be ‘a
single triggering event,’ and animus may instead build over
time. More to the point in these circumstances,
management had no opportunity to choose between
[charging party] and other promotional candidates until well
after he began engaging in protected activity. Where a
realistic possibility of discrimination does not arise soon
after protected activity, the timing factor has less
relevance.”
(City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 46-47, internal
citations omitted.) We find it logical to view timing with respect to bias allegations in
the same manner, i.e., the timing nexus exists on a continuum, such that no particular
amount of time is dispositive for a finding of bias. In other words, we agree with the
ALJ’s decision to analogize to our precedent on retaliatory animus, but we disagree
with the ALJ’s statement that a four-year gap is necessarily too long for animus or bias
to remain, especially given that the Board has recognized that management’s first
opportunity to act out of animus may not come for a significant period of time. (Id. at
p. 47.)
Therefore, absent IBEW’s waiver, it would have been appropriate for the ALJ to
weigh all the evidence as to whether Ochoa demonstrated a “clear disposition” against
IBEW (Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402,

26
p. 20), including but not limited to: (1) Ochoa’s April 2013 statement to Zurn and other
managers referring to IBEW’s actions as “subversive activity” (Glendale I, supra,
PERB Decision No. 2694-M, p. 29); (2) Ochoa’s May 2013 statement at a City Council
meeting singling out IBEW and stating that other unions, unlike IBEW, “have sought to
make sure the City remains a viable ongoing concern for the community;” (3) Ochoa’s
remark that a “rattlesnake commits suicide,” referring to IBEW (id. at p. 25); and
(4) Ochoa’s question to a GPA witness during the 2013 severance petition hearing, “Is
there any interest in moving back to [the Association]?” We decline to remand to the
ALJ, however, given that IBEW waived its bias claim.
IV. 	Application of the ERO’s Unit Appropriateness Criteria
IBEW argues that the City applied the ERO’s unit appropriateness criteria in an
unreasonable manner to deny its Petition.13 We disagree, as we explain further below.
While a severance petitioner has the burden of proving its proposed unit is an
“appropriate unit,” it need not demonstrate that its proposed unit is “the ultimate unit or
the most appropriate unit.” (City of Lodi (2010) PERB Decision No. 2142-M, adopting
proposed decision at p. 10, citing Alameda County Assistant Public Defenders Assn.
v. County of Alameda (1973) 33 Cal.App.3d 825, 830; County of Orange (2016) PERB
Decision No. 2478-M, adopting proposed decision at p. 8.) Most importantly, however,
13 The City argued in its post-hearing brief and exceptions that the
reasonableness of Ochoa’s determination was not at issue in the PERB hearing as it
was not an issue identified in the complaint, and IBEW did not move to amend the
complaint. We disagree. The complaint alleged, inter alia, that “Respondent, acting
through City Manager Ochoa, issued a decision denying Charging Party’s severance
petition” and that such conduct was inconsistent with ERO Section 7. This allegation
goes to Ochoa’s denial of the Petition, as well as his role in processing it.

27
a severance petitioner must show that the proposed unit has a community of interest
“separate and distinct” from other employees in the existing bargaining unit. (City of
Lodi, supra, PERB Decision No. 2142-M, adopting proposed decision at p. 10.)14
In addition, when PERB evaluates a public agency’s unit determination under
its local rules, our inquiry is limited to whether the agency’s determination was
reasonable, provided the determinations conform to the MMBA and the employer’s
local rules. (County of Orange, supra, PERB Decision No. 2478-M, p. 13 & adopting
proposed decision at p. 8; City of Glendale (2007) PERB Order No. Ad-361-M, p. 6;
see also MMBA, §§ 3507 subds. (a)(1), (a)(3), 3509 [powers of Board include to adopt
rules to apply in areas where a public agency has no rule]; PERB Reg. 61000 [Board
will conduct representation proceedings only where a public agency has not adopted
local rules].) The party challenging a unit determination has the burden of
demonstrating the decision was not reasonable. (City of Glendale, supra, PERB Order
No. Ad-361-M, p. 5.)
In City of Livermore (2017) PERB Decision No. 2525-M, two employees
represented by an incumbent union filed a “request for modification of an established
representation unit” with the city manager pursuant to the city’s employer-employee
14 When the existing bargaining unit was certified by PERB, the severance
petitioner must also show that the proposed unit is “more appropriate” than the
existing unit. (Los Rios Community College District (2018) PERB Decision No. 2587,
p. 2 (Los Rios); State of California (Department of Personnel Administration) (1990)
PERB Decision No. 794-S, p. 7; compare San Diego Community College District
(2001) PERB Decision No. 1445, p. 8 [when the current unit configuration was
established voluntarily by the parties, “the standard against which the requested unit
modification is judged is whether the proposed unit is an appropriate unit”].)

28
relations resolution. Although the petition was actually one for severance rather than
modification, the city manager processed it based on his erroneous belief that it had
the incumbent union’s support. The city manager later issued an initial response to the
petition in which he proposed a different unit. (Id., adopting proposed decision at p. 4.)
After multiple members of the incumbent union objected to the city manager’s
proposed unit, the city manager issued a final determination denying the severance
petition, but without any explanation or analysis of how he reached his decision. The
Board held that the employer unreasonably applied its local rules by failing to provide
written findings regarding the evidence it considered in making its determination to
deny the petition. (Id., adopting proposed decision at p. 48 [“it is not sufficient for the
City to simply state the standard that applies and then provide a conclusion without
also including the analytical process in its decision”].) As a remedy, the Board
remanded the matter to the city to make written findings and provide sufficient analysis
for PERB to determine whether the required standard was reasonably applied. (Id.,
adopting proposed decision at p. 56.)
Contrary to IBEW’s argument that the City’s unit determination decision was
conclusory like that in City of Livermore, supra, PERB Decision No. 2525-M, we find
that the City’s decision contains sufficient factual findings and analysis to determine
that it reasonably applied its ERO to reach its unit determination. However, because
the ALJ analyzed only the two factors mentioned in City of Lodi, supra, PERB

29
Decision No. 2142-M, rather than the entirety of the City’s determination, we proceed
to examine each factor.15
1. 	Fullest freedom
IBEW argued that it satisfied this criterion because it intended to submit
authorization cards from 89 percent of the employees in the proposed unit, reflecting
that the employee organization of their choosing is IBEW, not the Association. IBEW
stated, “[a] separate and distinct unit of waste-management workers will therefore
provide these employees with the ‘fullest freedom’ to exercise their right to be
represented by a union of their own choosing.” Furthermore, while waste-management
employees were allocated one seat on the Association’s Board of Directors, that
director did not serve on the Association’s bargaining committee. Thus, IBEW claimed,
employees in the classifications IBEW petitioned to represent did not have a seat at
the bargaining table.
Ochoa addressed these points in his decision. As to IBEW’s evidence that most
members of the proposed unit preferred to be represented by IBEW, he acknowledged
the “importance of employee satisfaction with the representation being received” but
stated that his “determination pertains to the appropriateness of severing the existing
bargaining unit and establishing a new unit,” not whether the Association should be
15 The proposed decision observed that IBEW did not specifically argue that the
City misapplied any of the six unit determination criteria listed in the City’s ERO. IBEW
excepts to this observation, pointing out that it addressed the relevant factors in the
statement of facts section of its post-hearing brief. In its exceptions, IBEW includes
detailed arguments regarding the six factors, and we therefore address those factors
below. While IBEW did not provide the ALJ with such detailed analysis, IBEW’s brief
to the ALJ was minimally sufficient to avoid a finding that it waived this argument.

30
replaced. Ochoa noted that “not every subset of employees within a bargaining unit
directly has a seat at the bargaining table, but this does not necessarily indicate that
their interests are not represented.” He further stated that allowing groups of
employees to form a new unit merely to gain direct access to the bargaining table
would result in a proliferation of units. Lastly, Ochoa concluded that IBEW did not
sufficiently demonstrate the proposed unit would assure the fullest freedom of
employee rights any more so than the existing unit.
We find Ochoa’s conclusion was reasonable. Although IWM Division employees
do not have their own seat at the bargaining table, PERB has never held that every
employee group must be able to elect its own union official or bargaining
representative, and in fact IWM Division employees do have a seat on the Association
Board, which gives their concerns a voice. Because there is no evidence that the
Association has “neglected or ignored” IWM employees’ interests, the City reasonably
concluded that this factor weighs against severance. (Los Rios, supra, PERB Decision
No. 2587, p. 5.)
2. 	Community of interest
Relying on a combination of criteria from International Brotherhood of Electrical
Workers v. Aubry (1996) 42 Cal.App.4th 861, Los Angeles Unified School District
(1998) PERB Decision No. 1267, and Marin Community College District (1978) PERB
Decision No. 55, IBEW presented evidence regarding the following community of
interest factors: (1) similar skills, duties, and working conditions; (2) common
supervision; (3) integration of work process; (4) geographic proximity; (5) employee
interchange; (6) administrative structure; and (7) desires of employees in the unit.

31
IBEW argued that employees in the proposed unit shared similar skills, duties,
and working conditions. Two of the positions, Integrated Waste Worker and Integrated
Waste Truck Operator, have “virtually identical job descriptions,” varying only by the
level of skill required. In the same vein, the Motor Sweeper Operator “performs
semi[-]skilled work operating a motor sweeper to clean City streets, alleys and parking
lots,” while a Maintenance Worker in the IWM Division “sweeps and cleans streets,
alleys, culverts [and] collects and loads refuse into any accompanying truck.” IBEW
further contended that all of the classifications require a Class C driver’s license, and
none require secondary schooling or a college degree. Finally, IBEW argued that the
IWM Division is funded by revenue from waste service customers, rather than tax
revenue, which funds the wages and benefits of employees in the Association.
Regarding hours of work, IBEW claimed that the integrated waste
classifications all share the same start time, except when the Motor Sweeper
Operators start earlier twice a week. The proposed unit crews operate almost every
day of the year, including holidays, as part of their regular shift. In contrast, most of
the remaining Association employees in the unit work 9/80 shifts, with overtime pay for
weekend and holiday work.
As to compensation, IBEW stated that employees in the proposed unit are
compensated similarly, and their employee benefits are identical. IBEW asserted that
all classifications in the proposed unit share common supervision that is exclusive to
the IWM Division, i.e., the four first-line supervisors in the field services section of the
IWM Division.

32
Regarding geographic proximity, IBEW presented testimony that all employees
in the proposed unit work and attend meetings at the Chevy Chase Yard. Only
workers from the proposed unit report and meet there. In addition, waste management
employees share routes and communicate with each other throughout the day. Finally,
as a regular part of their duties, waste workers often drive onto the private property of
Glendale residents and businesses, which is rare for other employees in the Public
Works Department.
On the integration of work processes, IBEW averred that the process of waste
collection is completely integrated from beginning to end, and not integrated with any
other work processes of the City.
IBEW also claimed that the positions in the proposed unit are interchangeable
when necessary. Truck operators can do the work of waste workers and waste
workers can be “bumped up” to truck operators. In contrast, these employees’ duties
are not interchangeable with any other positions in the Association-represented unit.
As to administrative structure, IBEW argued that the proposed unit is financially
and administratively independent because funding for the positions is separate from
the remainder of the City’s workforce. According to IBEW, this meant that collective
bargaining in the integrated waste unit would not be affected or limited by collective
bargaining in the larger unit. Finally, IBEW stressed that employees in the proposed
unit have “clearly and unambiguously” expressed their desire for a separate
bargaining unit represented by IBEW.
Ochoa relied on slightly different community of interest factors as set forth in
County of Riverside (2010) PERB Decision No. 2119-M: (1) the extent to which the

33
employees share education and other special qualifications; (2) job functions;
(3) method of wages or pay schedule; (4) hours of work; (5) fringe benefits;
(6) supervision; (7) frequency of contact with other employees; (8) integration with
work functions of other employees; and (9) the extent to which employees belong to
the same employee organization. According to Ochoa, while IBEW presented
evidence that the subject classifications share similarities in their skills, duties, and
work conditions, it did not demonstrate that the community of interest between the
classifications was “sufficiently distinct” from that of other bargaining unit members to
warrant severance. “Indeed, the dissimilarities IBEW references appear to be
relatively minor.” Ochoa concluded that IBEW did not establish a “significant lack of
community [of] interest” based upon the fact that employees in the four classifications
work different schedules and start their day in a different location. Similarly, Ochoa
rejected IBEW’s claim that the different source of funding for the positions in the
proposed unit translated into a “division of interests” in the groups.
We find that Ochoa’s conclusion was reasonable, if lacking in elaboration as to
some of his reasoning. Most importantly, IBEW failed to establish that IWM Division
employees share a community of interest that is separate and distinct from other
Association-represented employees. (City of Lodi, supra, PERB Decision No. 2142-M,
adopting proposed decision at p. 10; Los Rios, supra, PERB Decision No. 2587, p. 5.)
Not even their job duties and functions are distinguishable from other Association-
represented employees, as the Maintenance Worker classification is a generic
classification that has historically been utilized by multiple City departments including
GWP, Community Services and Parks, Community Development, and other divisions

34
within Public Works. At the time of the unit determination hearing, only two of the six
then-filled Maintenance Worker positions were in the IWM Division; the remainder
worked in Public Works Streets and Facilities.
Furthermore, IWM Division employees are assigned work locations similar to
other Public Works divisions; they work in field operations similar to employees in
Parks, Community Services, and other Public Works divisions; and their terms and
conditions of employment are similar to other classifications within the bargaining unit,
insofar as holiday schedules, overtime policies, and the requirement of a specialized
driver’s license. These characteristics establish that the community of interest is not
unique to the proposed unit. (Lodi Unified School District (2001) PERB Decision
No. 1429, adopting proposed decision at pp. 17-18.) Thus, Ochoa’s finding was
reasonable.
3. 	History of employee relations
IBEW contended that the history of the Association’s bargaining with the City
reflected that the Association has been ineffective in representing the interests of IWM
Division employees. IBEW pointed to several examples of employees complaining to
the Association about varied issues such as requests for uniforms and the difficulty of
driving large heavy-duty waste trucks, without any resolution from the Association or
the City.
Although Ochoa acknowledged IBEW’s evidence of “legitimate employee
frustrations” with the Association, he found that employee dissatisfaction with the
incumbent union’s representation was not a basis for severance. “Rather, the critical
inquiry is whether there has been widespread conflict between the employees seeking

35
to be severed and other groups of unit members, thus indicating a problem with the
existing unit structure.” Ochoa concluded that IBEW had not presented sufficient
evidence of such conflict, whereas the Association demonstrated that its unit had
ratified MOUs in the last four negotiation cycles with at least two-thirds majority
approval, as required by the Association’s bylaws, without resort to impasse.
Ochoa’s analysis was reasonable. While IBEW presented evidence that the
Association may not have been responsive to all of the concerns of employees in the
proposed unit, the record does not support a finding that the Association is “hostile” to
the interests of these employees nor that the interests of these employees have
prevented the Association and the City from reaching MOUs in recent history. (Lodi
Unified School District, supra, PERB Decision No. 1429, adopting proposed decision
at p. 19.)
4. 	Effect of proposed unit on the efficient operation of public service and sound
employee relations
IBEW presented no evidence on this criterion and instead argued that concerns
from the Association and Director of Human Resources Doyle about the potential
negative effect on the efficient operation of the City and sound employee relations
were purely speculative. In response, Ochoa stated that every new unit “invariably
presents complications in the administration of employer/employee relations” due to
the separate MOUs required. In turn, those separate MOUs “hinder the efficient
administration of benefits and working conditions” because of the “greater variety in
terms and conditions of employment.” IBEW’s proposed bargaining unit would bring
the City’s total units to six. While Ochoa noted that such a burden was not “untenable,”

36
it militated against granting the Petition, especially in the absence of other
countervailing factors.
We find Ochoa’s conclusion reasonable, though not determinative, as “the party
seeking severance will never be able to demonstrate that adding an additional unit will
improve an employer’s efficiency of operations. Therefore, PERB only requires that
the additional unit not be unduly burdensome.” (Los Angeles Unified School District,
supra, PERB Decision No. 1267, adopting proposed decision at p. 62.)
5. 	Effect on the existing classification structure
IBEW did not present any evidence on this criterion. Ochoa stated that, under
the existing classification structure, all employees in the Maintenance Worker
classification were in the Association’s bargaining unit. In contrast, IBEW’s proposed
unit would include only some employees in that classification. Ochoa concluded that
splitting the classification into two units was not “exceedingly problematic” though not
adequately justified under the circumstances. This finding was reasonable, given the
complications that can arise from fragmenting classifications among different
bargaining units.
6. 	Extent to which employees in the proposed unit have organized
IBEW concedes that the ERO states no unit shall be established solely on the
extent of organization of the employees. However, IBEW claims, “where there are
other substantial factors on which to base a unit determination, the City Manager may
give weight to the extent of the organization in establishing an appropriate unit.” In
IBEW’s view, because employees in the proposed unit have expressed a desire for
representation by IBEW, this factor points to severance and creation of a new unit.

37
Citing Los Angeles Unified School District, supra, PERB Decision No. 1267,
Ochoa noted that severance is inappropriate where it is “solely due to the stated
preference of a small group of its members,” given the concern with proliferation of
bargaining units. Ochoa concluded that IBEW’s “limited evidence” supporting the
Petition did not justify severing the classifications and creating the proposed unit.
Although Ochoa’s analysis was not extensive in every instance, we find that the
City’s unit determination was sufficiently reasoned and explained, and consistent with
the MMBA and ERO. (Santa Clara Valley Water District, supra, PERB Decision
No. 2531-M, p. 15 [charging party failed to show that employer’s reasons for denying
petition were unreasonable interpretations of the “appropriate unit” criteria from the
local rules]; City of Livermore, supra, PERB Decision No. 2525-M, adopting proposed
decision at p. 40 [“[i]f reasonable minds could differ over the appropriateness of the
bargaining unit, PERB should not substitute its judgment for [the employer’s]”].) We
therefore affirm the ALJ’s dismissal of IBEW’s allegations. We also dismiss IBEW’s
interference allegations, which were derivative of its other allegations.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-
1254-M are hereby DISMISSED.
Members Shiners and Krantz joined in this Decision.