City of Monterey Park (PERB A422M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF MONTEREY PARK,
Employer,
and
MONTEREY PARK CITY EMPLOYEES
ASSOCIATION,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Exclusive Representative.
Case No. LA-DP-404-M
Administrative Appeal
PERB Order No. Ad-422-M
June 5, 2015
Appearance: Weinberg, Roger & Rosenfeld by Sean D. Graham, Attorney, for Service
Employees International Union, Local 721.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on an application to permit a late filing, appeal
of
an administrative
determination and request for stay (Appeal) filed by Service Employees International Union,
Local 721 (SEIU). This matter arises out
of
an administrative determination issued by PERB' s
Office
of
the General Counsel (OGC) following the investigation
of
a decertification petition
filed pursuant to PERB Regulation 61350 et seq. 1 The administrative determination concluded
1 PERB Regulation 613 50, subdivision (a), provides: "A petition for an election to
decertify an existing exclusive representative in an established unit may be filed by a group of
employees within the unit or an employee organization." Subdivision (b) requires that the
petition be accompanied by proof that at least30 percent of the employees in the established
unit either no longer desire to be represented by the incumbent exclusive representative or wish
to be represented by another employee organization. PERB Regulation 61360 requires the

that the decertification petition had been timely filed with the requisite proof
of
support and
that a decertification election would be conducted to determine the employee organization,
if
any, to
b.e
certified as the exclusive representative
of
the bargaining unit in question.
Following receipt
of
the Appeal, the Board itself received a request from
PERB's
General
Counsel that the entire matter, including the administrative determination, be recalled to the
OGC for further processing. As explained below, the request is granted.
PROCEDURAL HISTORY
On March 18, 2015, the Monterey Park City Employees Association (CEA) filed with
PERB a petition to decertify SEID, along with proof
of
support, claiming that the City
of
Monterey
Park's
(City) Employee Employer Resolution did not contain a decertification
procedure.
In response to the OGC's initial contact letter dated March 24, 2015, the City
confirmed that it had not adopted local rules for the decertification
of
an exclusive
representative in accordance with section 3507
of
the Meyers-Milias-Brown Act (MMBA).2 In
response to the
OGC's
letter dated April 2, 2015, the City confirmed that it had posted the
Notice
of
Decertification along with a copy
of
the decertification petition, and filed with PERB
a list
of
the names
of
employees in the claimed General Employee Bargaining Unit for the
requisite time period. SEID filed no response to the decertification petition.
employer to post a notice
of
the decertification petition. PERB Regulation 61370 requires the
employer to file a description
of
the established unit and a list
of
employees in the established
unit and provides that the Board shall inform the parties in writing whether the proof of
support is sufficient. PERB Regulation 61380 requires the Board to conduct an investigation
upon receipt
of
a petition for decertification and sets forth the conditions under which a
petition for decertification would be dismissed on timeliness grounds. (PERB regs. are
codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
2 The MMBA is codified at Government Code section 3500 et seq. All further
undesignated section references are to the Government Code.
2

The OGC issued its administrative determination on April 22, 2015. The administrative
determination stated that the OGC's investigation had established that SEIU is the exclusive
representative and that a memorandum
of
understanding between SEIU and the City will
expire on June 30, 2015. The administrative determination found the decertification petition
timely, the proof
of
support sufficient, and an election to be in order.
On May 4, 2015, twelve days after issuance
of
the administrative determination, SEIU
filed a notice
of
appearance with the OGC. On or about May 15, 2015, SEIU filed its Appeal
with the Board itself.
The Board itself received a letter dated May 19, 2015, from PERB's General Counsel,
indicating that it had reviewed SEIU's appeal
of
an administrative determination and request
for stay Appeal. In light
of
the information contained therein, the General Counsel requested
that the matter, including the administrative determination, be recalled to the OGC for further
processmg.
DISCUSSION
In the Appeal, SEIU claims that it was not properly served with the decertification
petition and that it was not aware
of
the OGC investigation until after the administrative
determination had issued. CEA purportedly served the decertification petition on SEIU by
mailing a copy
of
the petition to Gilbert Ramirez (Ramirez), Labor Representative.
Subsequent PERB correspondence and the administrative determination were also served on
Ramirez, identified on the proof
of
service documents as "Labor Relations Representative/
Organizer." SEIU claims that Ramirez is not the agent identified for service, the president or
an officer, as required under PERB Regulation 32142, subdivision (d).3 SEIU also claims that
3 PERB Regulation 32142, subdivision (d), provides: "Whenever a document is
required to be 'filed' or 'served' with any of the below listed entities, the proper recipient shall
·be:
...
(d) An employee organization: the individual designated to receive service or to the
president or if there is no president, an officer of the organization."
3

Ramirez left employment with SEIU during the OGC investigation, and that SEIU had no
actual notice
of
the OGC investigation.
Expressing no opinion on the merits
of
SEIU's claims, the Board itself grants the
General Counsel's request that this matter
be
recalled to the OGC for further processing. If
SEID, was not effectively placed on notice
of
the decertification petition, the stakes for the
employees in the General Employee Bargaining Unit are too high to allow the matter to
proceed any further without providing their exclusive representative with an opportunity to
participate in the OGC investigation,
if
it so chooses. On the other hand,
if
SEIU was
effectively placed on notice
of
the decertification petition and the OGC investigation, but
failed to respond or participate, granting the General Counsel's request will result in only a
short delay in the conduct
of
the decertification election. In either event, the OGC is in the
best position to determine the most appropriate course
of
action and to correct,
if
necessary,
any defect in the process.
In Board precedent going at least as far back as 1985, the Board itself has recognized
the efficacy
of
permitting the OGC to recall a matter for further processing. These decisions
arose in the context
of
a dismissal following the investigation
of
an unfair practice charge by
the OGC. In State
of
California, Employment Development Department (1985) PERB
Decision No. 483-S,4 the Board stated:
4 See also California State Employees' Association (Morrow) (1986) PERB Decision
No. 568-S; California School Employees Association and its Chapter #302 (Lauer) (1990)
PERB Decision No. 809; Santa Ana Education Association (0 'Neil, et al.) (2005) PERB
Decision No. 1776 (charging parties asserted that they had not received the warning letter);
City & County
of
San Francisco (2005) PERB Decision No. 1779-M (charging party's timely
filed amended charge was not forwarded to the assigned Board agent until after issuance of
dismissal).
4

Clearly, underlying the Board's adoption
of
the remand procedure
was the desire to minimize, and hopefully eliminate, appellate
litigation prompted by inadequacies in the processing
of
unfair
practice charges. Presumably a request by the General Counsel
for such Board action is predicated on a conclusion that further
investigation is likely to achieve that desirable result.
While the setting here entails a representation investigation rather than an unfair
practice investigation, the rationale for returning a matter to the OGC upon request, as
expressed in the decisions cited herein, applies with full force. 	Moreover, given the nature
of
representation proceedings and the direct and immediate· impact such proceedings have on an
entire bargaining unit
of
employees, the General Counsel's determination
of
the need for
further processing warrants a high level
of
deference from the Board itself. Accordingly, the
General Counsel's request is GRANTED.
ORDER
It is hereby ORDERED that the entire matter, including the April 22, 2015,
administrative determination, in Case No. LA-DP-404-M be recalled to the Office
of
the
General Counsel for further processing pursuant to the May 19, 2015, request
of
the General
Counsel.
Members Huguenin and Banks joined in this Decision.
5