City of Parlier (PERB A421M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF PARLIER,
Employer,
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, STATIONARY ENGINEERS,
LOCAL 39,
Petitioner.
Case No. SA-RR-1148-M
Administrative Appeal
PERB Order No. Ad-421-M
June 4, 2015
Appearances: Lozano Smith by Dale E. Bacigalupi, Attorney, for City
of
Parlier; Weinberg,
Roger & Rosenfeld by Stewart Weinberg, Attorney, for International Union
of
Operating
Engineers, Stationary Engineers, Local 39.
Before Winslow, Banks and Gregersen, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the International Union
of
Operating Engineers, Stationary
Engineers, Local 39 (Local 39) from an administrative determination (attached) by PERB's
Office
of
the General Counsel dismissing a representation petition. The appeal alleges that the
City
of
Parlier (City) violated the Meyers-Milias-Brown Act (MMBA)1 by adopting and
applying rules for processing representation petitions that are repugnant to the MMBA,
specifically those that purport to exclude confidential employees from units that include non-
confidential employees. Local 39 alleges that this conduct constituted a violation
of
MMBA
section 3507.5.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

For the reasons discussed herein, we affirm PERB's Office
of
the General Counsel's
finding that PERB lacks jurisdiction to consider the petition.
FACTUAL SUMMARY
On or about June 3, 2014, Local 39 filed with the City a "Petition for Recognition,"
seeking to represent a unit
of
administrative, miscellaneous, general and public works
employees.
The classifications attached to the letter included "Accounting Technician I, II, III" and
"Executive Assistant/City Clerk."
On June 6, 2014, the City's Interim City Manager, Israel Lara (Lara), notified Local 39
that the petition for recognition was deficient in several ways, including that it lacked a proof
of
employee support and included the position
of
"Executive Assistant/City Clerk," a position
the City had designated as "confidential." Lara offered to consult with Local 39 to discuss the
defects in the petition for recognition.
On June 10, 2014, Local 39 filed an "MMBA REPRESENTATION PETITION" with
PERB marked as a "Request for Recognition" from the City. The MMBA representation
petition included "all City rank and file employees" and excluded "Supervisory and
management."
On June 13, 2013, the Office
of
the General Counsel sent a letter to Local 39 and the
City acknowledging receipt
of
the recognition petition, and requesting the City to confirm
whether it has adopted local rules concerning request for recognition petitions in accordance
with MMBA section 3507.
On June 17, 2014, the City attorney forwarded various documents to the Office of the
General Counsel, including the chapter of the Parlier Municipal Code that contains the City's
2

rules adopted in accordance with MMBA section 3507, (hereafter "Employer-Employee
Relations Rules,"
or
"EERR".)
On February 9, 2015, the Office
of
the General Counsel sent an "ORDER TO SHOW
CAUSE" to the parties that stated, in relevant part:
The
City's EERR
section 4.05.050 provides for petitions to
request representation
of
employees in an appropriate unit. The
City has asserted that it is processing the representation petition
consistent with this section. Accordingly, it appears that the local
rules referenced above are applicable to Local
39's
request for
recognition, and that the matter should proceed under the local
rules.
	If
so, PERB would lack jurisdiction over any further
proceedings, and the instant proceeding would be dismissed.
In
light
of
the above, Local 39 is afforded this opportunity to
SHOW CAUSE as to why the petition should not be dismissed.
Local 39 responded on February 11, 2015, acknowledging that the City has adopted
rules regarding MMBA representation petitions for representation, but asserting: (1) that the
City wrongly classified the accounting technician III as confidential,2 and (2) the City's rules
prohibiting confidential employees from being in the same bargaining units as non-confidential
employees is inconsistent with and repugnant to the MMBA.
On February 23, 2015, the City responded to both the February 9, 2015, letter from the
Office
of
the General Counsel and Local 39's February 11, 2015, letter asserting the City's
discretion and authority under MMBA section 3507.5 to designate certain positions as
confidential and requesting PERB to dismiss Local
39's
petition.
2 Prior to February 11, 2015, none
of
the City's letters challenged the inclusion of the
accounting technician III in the petitioned-for unit. The only position to which the City
objected on the basis of alleged confidential status was the executive assistant/city clerk
position.
3

Relevant Municipal Codes
Section 4.05.100
of
the Municipal Code, "Policy and standards for determination
of
appropriate units," states in Subsection C:
Notwithstanding the foregoing provisions
of
this section,
managerial, supervisory and confidential responsibilities, as
defined in Section 4.05.020
of
this chapter,3 are determining
factors in establishing appropriate units under this article, and
therefore such managerial, supervisory and confidential
employees may only be included in units that do not include
nonmanagerial, nonsupervisory and nonconfidential employees.
Managerial, supervisory and confidential employees may not
represent any employee organization which represents other
employees.
Section 4. 05 .120
of
the Municipal Code, "Appeals," states, in relevant part:
A. An employee organization aggrieved by an appropriate unit
determination
of
the employee relations officer under this
article may, within ten days
of
notice thereof, request the
intervention
of
the State Conciliation Service pursuant to
Government
Code§§
3507.1 and 3507.3, or may, in lieu
thereof or thereafter, appeal such determination to the city
council for final decision within fifteen days
of
notice
of
the
employee relations officer's determination or the termination
of
proceedings pursuant to Government Code§§ 3507.1 and
3507.3, whichever is later.
B. An employee organization aggrieved by a determination
of
the employee relations officer that a recognition petition
...
has not been filed in compliance with the applicable
provisions
of
this chapter may, within fifteen days
of
notice
of
such determination, appeal the determination to [sic] city
council for final decision.
ADMINISTRATIVE DETERMINATION
On or about March 20, 2015, the Office
of
the General Counsel issued an
administrative determination dismissing Local 39's Petition for Recognition on the grounds
3 Section 4.05.020 defines as "Confidential" an employee "who, in the course of his or
her usual duties, has regular access to information relating to the city's administration of
employer-employee relations."
4

. that the City's local rules provide for "petitions to request representation
of
employees."
Local 39 had failed to demonstrate that PERB has authority over this matter pursuant to PERB
Regulation 61000, "Application
of
Regulations" (applicable specifically to MMBA
jurisdictions) which states, in relevant part:
Except as otherwise ordered pursuant to Chapter 1
...
the Board
will conduct representation proceedings
...
under MMBA in
accordance with the applicable provisions
of
this Chapter only
where a public agency has not adopted local rules in accordance
with MMBA section 3507.
APPEAL BY LOCAL 39
Local 39 filed a timely appeal
of
the administrative determination with the Board on
March 24, 2015. Local 39 asserts in its appeal that the City's rule excluding confidential
employees from bargaining units comprised
of
non-confidential employees is repugnant to the
MMBA, which does not require that confidential employees be "excluded from bargaining
units." (Appeal, p. 2.) Although the City has a right to adopt a procedure for certifying an
exclusive representative, it does not have the authority to adopt a rule that is inconsistent with
the MMBA. According to Local 39, the MMBA only restricts confidential employees from
representing non-confidential employees; the statute does not permit excluding confidential
employees from bargaining units comprised
of
non-confidential employees.
CITY'S RESPONSE
The City responded to Local 39's appeal on April 2, 2015, urging that it should be
dismissed because the City has adopted local rules
of
procedure under the MMBA, i.e., its
EERR. The City notes that Local 39 has filed an unfair practice charge against the City in
5

which it makes the same allegations as are made in this case.4 The City also argues that
Local 39 has failed to avail itself
of
the appeal procedures contained in Section 4.05.120 A and
B ("Appeals")
of
the City rules, which provide that an aggrieved employee organization must
appeal an adverse determination to a "recognition petition" to the City council or with the state
conciliation service "within
10
days
of
notice thereof." The City alleges that Local 39 did
neither, and therefore has failed to exhaust its remedies as provided in the City rules. Local 39
is consequently barred from seeking relief at PERB, according to the City, having elected to
forego the local appeal remedy that was provided for this type
of
complaint.
DISCUSSION
It is well-settled that PERB does not have the authority to conduct representation
proceedings under the MMBA unless a public agency has not adopted local rules in accordance
with MMBA section 3507.5 (PERB Reg. 61000.) As the Board held in County
of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M:
4 The Board takes administrative notice
of
unfair practice charge Case
No. SA-CE-887-M, which is currently pending before the Office
of
the General Counsel on an
expedited basis.
5 MMBA section 3507 states in, relevant part:
(a) A public agency may 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 under this
chapter. The rules and regulations may include provisions for all
of
the following:
( 1) Verifying that an organization does in fact represent
employees
of
the public agency.
(3) Recognition of employee organizations.
[~]
6

Based on both the plain language
of
MMBA section 3509,
subdivision (a), and the legislative intent behind the 2003
amendment to that subdivision, it is clear that PERB regulations
serve to "fill in the gap" when a local agency has not adopted a
local rule on a particular representation issue.
In this case, the City has adopted local rules that address petitions by employee
organizations for recognition as exclusive representatives. The City has specifically adopted a
rule that permits the employee relations officer to designate which positions are confidential
and establishes a definition
of
"confidential employee," as it is specifically authorized to do by
MMBA section 3507.5.6
Because the City has adopted such regulations, there is no "gap" for PERB to fill with
its own representation rules. The local rules provide the means by which Local 39 can
accomplish what it seeks, including an appeal to the City council
of
the determination that
(4) Exclusive recognition
of
employee organizations formally
recognized pursuant to a vote
of
the employees
of
the agency or
an appropriate unit thereof, subject to the right
of
an employee to
represent himself or herself as provided in Section 3502.
(9) Any other matters that are necessary to carry out the purposes
of
this chapter.
6 MMBA section 3507.5 states:
In addition to those rules and regulations a public agency may
adopt pursuant to and in the same manner as in Section 3507, any
such agency may adopt reasonable rules and regulations
providing for designation of the management and confidential
employees of the public agency and restricting such employees
from representing any employee organization, which represents
other employees of the public agency, on matters within the
scope of representation. Except as specifically provided
otherwise in this chapter, this section does not otherwise limit the
right of employees to be members of and to hold office in an
employee organization.
7

accounting technicians III are confidential. (County
of
Orange (2010) PERB Order
No. Ad-386-M.)
Local 39 contends that the City's rule prohibiting confidential employees from being
placed in non-confidential bargaining units is unreasonable because it is allegedly not
consistent with, or does not effectuate the purposes
of
the express provisions of, the MMBA.
We need not reach this issue in this case, because the appropriate avenue for such a challenge
is an unfair practice charge pursuant to MMBA section 3509(b),7 not a representation petition
before PERB. (See also PERB Reg. 32603; County
of
Monterey (2004) PERB Decision
No. 1663-M, Proposed Dec., p. 27-29.) For this reason, we hereby deny the appeal and affirm
the administrative determination.
In light
of
the above finding, we need not reach the issue
of
exhaustion
of
internal
remedies by Local 39, as urged by the City.
7 MMBA section 3509(b) provides, in pertinent part:
(b) A complaint alleging any violation of this chapter or
of
any rules and
regulations adopted by a public agency pursuant to Section 3507 or
3507.5 shall be processed as an unfair practice charge by the board
....
Moreover, MMBA section 3507(d) provides:
Employees and employee organizations shall be able to challenge
a rule or regulation of a public agency as a violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive, of Section 3509.
8

ORDER
The administrative determination in Case No. SA-RR-1148-M
of
the Office
of
the
General Counsel that the Public Employment Relations Board lacks jurisdiction to consider
International Union
of
Operating Engineers, Stationary Engineers, Local 39's Petition for
Recognition is hereby AFFIRMED.
Members Banks and Gregersen joined in this Decision.
9

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
March 20, 2015
Israel Lara, Interim City Manager
City
of
Parlier
1100 East Parlier Avenue
Parlier, CA 93646
Marina Magdaleno, Business Representative
International Union
of
Operating Engineers, Stationary Engineers Local 39
4644 	Jacquelyn Ave.
Fresno, CA
93
722
Re: 	Case No. SA-RR-1148-M
Administrative Determination
Dear Ms. Magdaleno:
EDMUND G. BROWN JR., Governor
The above-referenced Request for Recognition petition was filed with the Public Employment
Relations Board (PERB or Board) on June 10, 2014 by the International Union
of
Operating
Engineers, Stationary Engineers Local 39 (Local 39).
Local 39 was informed in the attached letter dated February 9, 2015 that, based on the City
of
Parlier's (City) Employer-Employee Relations Rules (EERR) section 4.05.0501 which provides
for petitions to request representation
of
employees, PERB lacks authority to process the
petition. Local 39 was advised that, ifthere were any additional facts which would
demonstrate that PERB has authority over this matter pursuant to PERB Regulation 61000,2 it
should submit the information. Local 39 was further advised that, unless it submitted such
information or withdrew the petition prior to February 24, 2015, the petition would be
dismissed.
On February 11, 2015, Local 39 filed a letter stating that the City's rules were inconsistent
with and thus repugnant to the MMBA. Local 39's February 11, 2015 letter, however, does
1 It appears these rules were adopted and continued in effect in 1981 by the City in
October 1997.
2 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code
of
Regulations, title 8, section 31001 et seq. The text of the
Meyers-Milias-Brown Act (MMBA) and PERB Regulations may be found at
www.perb.ca.gov.

SA-RR-1148-M
March 20, 2015
Page2
not deny that the City's local rules provide for petitions to request representation
of
employees.
Further, Local 39's February 11, 2015 letter fails to demonstrate that PERB has authority over
this matter pursuant to PERB Regulation 61000. Accordingly, this petition based on the facts
and reasons contained in the February 9, 2015 letter.
Right
of
Appeal
An appeal
of
this decision to the Board itself may be made within ten (10) calendar days
following the date
of
service
of
this decision. (PERB Regulation 32360.) To be timely filed,
the original and five (5) 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.
(PERB Regulations 32135(a) and 32130; see also Gov. Code,§ 11020, subd. (a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet 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 U.S. mail. (PERB Regulation 32135(b),
(c) and (d); see also PERB Regulations 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 (PERB Regulation 32360(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 (PERB Regulation 32370).
If
a timely appeal is filed, any other party may file with the Board an original and five ( 5)
copies
of
a response to the appeal within ten (10) calendar days following the date of service
of
the appeal (PERB Regulation 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 PERB Regulation 32140 for
the required contents). The document will be considered properly "served" when personally
delivered or deposited in the mail or deposited with a delivery service and properly addressed.

SA-RR-1148-M
March 20, 2015
Page 3
A document may also be concurrently served via facsimile transmission on all parties to the
proceeding. (PERB Regulation 32135(c).)
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 accompanied by proof
of
service
of
the request upon each party (PERB Regulation 32132).
Sincerely,
James Coffey
Regional Attorney
JC
cc: Israel Lara, Interim City Manager 
..