Regents of the University of California (PERB A435H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD FALLFORNIL
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
TEAMSTERS LOCAL 2010,
Petitioner,
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 501,
Intervenor.
Case No. SF-RR-969-H
Administrative Appeal
PERB Order No. Ad-435-H
April 21, 2016
Appearances: Beeson, Tayer & Bodine by Susan K. Garea, Attorney, for Teamsters
Local 2010; The Myers Law Group by Adam N. Stern, Attorney, for International Union of
Operating Engineers, Local 501.
Before Martinez, Chair; Banks and Gregersen, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Teamsters Local 2010 (Teamsters) from an administrative
determination (attached) issued by the Office of the General Counsel. This matter arises out of
a request for recognition filed by Teamsters seeking to become the exclusive representative of
the skilled trades bargaining unit (STU) at the University of California’s Los Angeles (UCLA)
campus. After the timely filing of an intervention by the International Union of Operating
Engineers, Local 501 (IUOE) for some, but not all, of the classifications in the STU, and a
petition for Board investigation by the Teamsters, the Office of the General Counsel dismissed
the matter on timeliness grounds.

________________________
The request for recognition and the intervention were filed within 12 months of
certification of a valid election result affecting the proposed bargaining units. Accordingly, the
Office of the General Counsel determined that the “election bar” codified in section 3577,
subdivision (b)(2) of the Higher Education Employer-Employee Relations Act (HEERA), 	as
implemented by PERB Regulation 51140, subdivision (b)(4),
1
required that the matter be
dismissed. The Teamsters timely filed an appeal and the IUOE timely filed a response.
2
The Board itself has reviewed the case file in its entirety in light of the issues raised on
appeal. We conclude that the administrative determination correctly recites the procedural and
factual history of this case, is well-reasoned and is consistent with applicable law. We thus
deny the Teamsters’ appeal and affirm the administrative determination as the decision of the
Board itself, as supplemented by the discussion below.
BACKGROUND
After a valid election, the State Employees Trade Council-United (SETC) was certified
as the exclusive representative for the STU, effective February 23, 2015. On October 23,
2015, SETC disclaimed its interest in representing the bargaining unit. On October 30, 2015,
the Teamsters filed its request for recognition seeking to become the exclusive representative
of the STU. On November 24, 2015, IUOE filed an intervention for some, but not all, of the
proposed bargaining unit.3 As determined by the Office of the General Counsel on
HEERA is codified at Government Code section 3560 et seq. All undesignated
section references are to the Government Code.
1
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
3 See PERB Regulation 51040
2

________________________
On January 8,
2016, UCLA filed its response. UCLA did not dispute the appropriateness of the bargaining
unit that the Teamsters sought to represent, but denied the Teamsters’ request for recognition
on the grounds of uncertainty over SETC’s disclaimer of interest.
December 15, 2015, both were accompanied by adequate proof of support.4
Regarding the intervention,
UCLA questioned the appropriateness of the bargaining unit that IUOE sought to represent, but
declined to take a position on the issue in deference to PERB’s authority.
5
asserting
that the SETC validly disclaimed interest in the STU and that IUOE’s intervention should be
dismissed because it sought an inappropriate unit.
On January 19, 2016, the Teamsters filed a petition for Board investigation,6
The Office of the General Counsel issued
an order to show cause (OSC) on January 28, 2016, pursuant to which IUOE filed a response
on February 10, 2016, asserting that both its intervention and the Teamsters’ request for
recognition should be dismissed as untimely because they were filed within the 12-month
period following SETC’s certification. UCLA filed a response to the OSC on February 11,
2016, accepting PERB’s determination that SETC’s disclaimer was valid. On February 16,
2016, the Teamsters filed a letter opposing dismissal of its request for recognition, arguing for
an “unusual or special circumstances” exception to the 12-month election bar in cases where
there has been a disclaimer of interest. On February 23, 2016, the administrative determination
issued.
7
4 See PERB Regulation 51050.
5 See PERB Regulation 51080.
6 See PERB Regulation 51095.
7 See PERB Regulation 51090.
3

________________________
DISCUSSION
Under HEERA, an employee organization may become the exclusive representative for
the employees of an appropriate bargaining unit by filing a request for recognition with the
employer, alleging that a majority of the employees in the proposed unit wish to be represented
and requesting that the employer recognize it as the exclusive representative. (HEERA,
§ 3573.) The employer shall grant a request for recognition unless a statutory exception
applies. (HEERA, § 3574, subds. (a) [doubt as to majority support or reasonable doubt as to
appropriateness of unit], (b) [another employee organization files a challenge to
appropriateness of unit or submits a competing claim of representation], (c) [contract bar],
(d) [election bar].) The exception in HEERA section 3574, subdivision (d) provides:
Within the previous 12 months, either another employee
organization has been lawfully recognized or certified as the
exclusive representative of any employees included in the unit
described in the request for recognition, or a majority of the votes
cast in a representation election held pursuant to Section 3577
were cast for “no representation.”
A petition for Board investigation may be filed requesting that PERB decide whether
the employees have selected or wish to select an exclusive representative or determine the
appropriateness of a proposed unit. (HEERA, § 3575.) Under HEERA section 3575, such
petition may be filed by an employee organization where the employer has denied a request for
recognition (subd. (a)), a competing claim of representation has been filed (subd. (b)), or an
employee organization wishes to be certified as the exclusive representative (subd. (c)).
HEERA section 3577, subdivision (b)(2) provides that no election shall be held and the
petition shall be dismissed8 whenever:
The same mandatory language, “shall,” is used in PERB’s implementing regulation.
(PERB Reg. 51140, subd. (b)(4).)
8
4

________________________
Within the previous 12 months, either an employee organization
other than the petitioner has been lawfully recognized or certified
as the exclusive representative of any employees included in the
unit described in the petition, or a majority of the votes cast in a
representation election held pursuant to subdivision (a) were cast
for “no representation.”
As the administrative determination concluded, the statutory and regulatory scheme
makes clear that the Teamsters’ request for recognition and IUOE’s intervention are untimely.
SETC was certified as the exclusive representative of the STU on February 23, 2015, following
a valid election. During the 12 months following certification, no election may be held and no
requests for recognition or interventions may be filed. The Teamsters’ request for recognition
and IUOE’s intervention were filed within that 12-month period. They are therefore untimely.
The administrative determination addressed the Teamsters’ argument that an “unusual
or special circumstances” exception to the 12-month bar applies where there has been a
disclaimer of interest, and also addressed the private sector authorities relied on by the
Teamsters for that argument, namely WTOP, Inc. (1955) 114 NLRB 1236 (WTOP). As the
Office of the General Counsel explained, WTOP involved discussion of the certification bar, a
rule adopted by the National Labor Relations Board (NLRB) through the development of case
law; and not a discussion of the election bar in section 9(c)(3). 	As the Office of the General
Counsel noted, United States Supreme Court authority cited by the Teamsters undermines its
own argument. In Brooks v. NLRB (1954) 348 U.S. 96, 102-103, the Supreme Court stated
that, after the enactment of the election bar in section 9(c)(3), the NLRB “continued to apply
its ‘one-year certification’ rule … except that even ‘unusual circumstances’ no longer left
the [NLRB] free to order an election where one had taken place within the preceding
9
Section 9(c)(3) provides: “No election shall be directed in any bargaining unit or any
subdivision within which, in the preceding twelve-month period, a valid election shall have
been held.” (29 U.S.C. § 159(c)(3).)
9
5

________________________
12 months.” 	Given the failure of the Teamsters’ private sector-based argument and the plain
and mandatory language of HEERA and its implementing regulations requiring dismissal, the
Office of the General Counsel came to a logically reasoned conclusion in its administrative
determination.
10
the Teamsters argues that the Office of the General Counsel erred in
“rejecting WTOP and its reasoning,” while conceding that “[WTOP] did not address the
election bar.” The Teamsters argues that there is no reason to differentiate between the
certification bar and the election bar for purposes of applying an exception in cases involving a
disclaimer of interest because both bars serve the same purpose, which is to provide a measure
of protection and finality to employees and parties following an election. We are unpersuaded
by this argument. The plain and mandatory language of HEERA and its implementing
regulations leave no interstices for the Board to fill through its appellate decision-making
function.
On appeal,11
Reliance by the Teamsters on an NLRB advice memorandum in support of its argument
moves us no closer to its position. The Teamsters asserts that an NLRB advice memorandum,
Brunswick Nurses Association (1981) WL 26024 (N.L.R.B.G.C.), interpreted WTOP as
“The Court [in Brooks] was convinced that such a [certification bar] rule was
necessary in order to … insulate the union against pressures for ‘hothouse’ results and undue
bargaining militancy generated by some other union watching from the wings, prepared to
precipitate a new election at an early and advantageous date.” (Gorman and Finkin, Labor
Law Analysis and Advocacy (2013) § 4.8, Election, Certification and Recognition Bars,
pp. 82-83.)
10
The timing of the issuance of the administrative determination and the filing of the
appeal makes an interesting point relative to the Teamsters’ desired outcome. The
administrative determination was issued on February 23, 2016, exactly one year after the
effective date of SETC’s certification. The following day, the 12-month election bar was no
longer an impediment to the filing of a request for recognition by the Teamsters. Everything
the Teamsters seek in its appeal of the administrative determination was immediately made
available to it the day after issuance of the administrative determination.
11
6

providing an exception to both the certification and election bars. There are several problems
with this assertion.
First, we do not read the advice memorandum in the same way as the Teamsters. In
that case, the incumbent was certified and collective bargaining negotiations commenced, the
incumbent conducted an economic strike demanding a contract, after which 78 of the striking
employees were fired. The incumbent subsequently disclaimed interest in representing the
bargaining unit. The employees formed an association and filed unfair labor practice charges
against the employer. Approximately eight months after the incumbent was certified, the
employee association filed an election petition.
One issue presented by these facts was the applicability of section 8(b)(7)(B) and (C)
prohibitions on recognitional and organizational picketing by a union not certified as the
bargaining representative within 12 months after a valid election. The advice memorandum
concluded that the proscription did not apply because its primary purpose was to protect an
employer from “blackmail” picketing for recognition by a union that had just lost a valid
representation election. Further, such a conclusion was particularly justified where the
employer’s post-certification unfair labor practices contributed to undermining the incumbent’s
status as bargaining representative, leading to its disclaimer of interest and formation of the
employee association. In such circumstances, the advice memorandum concluded that “it
would be inequitable to allow the Employer to claim and benefit from the protection afforded
by the insulation period of Section 8(b)(7)(B).”
Regardless of the similarity in language between the election bar in section 9(c)(3) and
the picketing proscription in section 8(b)(7)(B) and (C), these two sections concern two
different matters and serve two different purposes. The matter before PERB does not concern
7

________________________
recognitional or organizational picketing, and we therefore do not find the advice
memorandum to be of any persuasive value.
Another issue presented in the advice memorandum was whether the incumbent’s
certification constituted a bar to the raising of a question concerning representation (qcr) by the
employee association’s election petition. The advice memorandum relied on WTOP for the
proposition that a disclaimer of interest asserted by the certified union along with the union’s
refusal to bargain constitute special circumstances “which remove election/certification as a
barrier to the raising of a qcr within the 12 month period following the election.” As the
Teamsters admit on appeal, WTOP did not address the election bar, just the certification bar.
We therefore find this statement in the advice memorandum inaccurate, and therefore equally
as unpersuasive as its discussion of recognitional and organizational picketing.
Second, in addition to the United States Supreme Court authority, Brooks v. NLRB,
supra, 348 U.S. 96, discussed ante, there is NLRB authority to the contrary of Teamsters’
position and interpretation of WTOP. In E Center, Yuba Sutter Head Start and Service
Employees International Union, AFL-CIO, CLC Local 790 (2002) 337 NLRB 983, the NLRB
held that a party may not avoid the section 9(c)(3) one year election bar by requesting withdrawal
of an election petition after a valid election is conducted. The NLRB stated: “The Act, … does
not permit circumvention of the election bar rule contained in Section 9(c)(3).” (Ibid.)
Third, while we are free to take guidance, as appropriate, from federal authorities
interpreting similar or analogous provisions of the National Labor Relations Act (NRLA)12
when interpreting the provisions of California’s public-sector labor relations statutes (Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 615; McPherson v. Public Employment
12 The NLRA is codified at 29 U.S.C. section 151 et seq.
8

Relations Bd. (1987) 189 Cal.App.3d 293, 311), we cannot ignore the plain command of the
statutes we are entrusted to enforce, nor can we make changes to our regulations through
decision-making rather than rulemaking. (State of California (Department of Corrections &
Rehabilitation) (2009) PERB Order No. Ad-382-S.)
HEERA requires that PERB dismiss a request for recognition and intervention filed
within 12 months of a valid election. For all the reasons discussed herein and in the
administrative determination, we deny the Teamsters’ appeal and affirm the Office of the
General Counsel’s dismissal of this matter.
ORDER
Teamsters’ appeal from the administrative determination in Case No. SF-RR-969-H is
hereby DENIED.
Members Banks and Gregersen joined in this Decision.
9

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1139
Fax: (510) 622-1027
February 23, 2016
See attached service list
Re: University of California .
Case No. SF-RR-969-H
ADMINISTRATIVE DETERMINATION
Dear Interested Parties:
On January 19, 2016, Teamsters Local 2010 (Local 2010) filed a petition for investigation by
the Public Employment Relations Board (PERB or Board) in the above-referenced case,
pursuant to PERB Regulation 51080. Local 2010's petition seeks an investigation of its
request for recognition as the exclusive representative of a unit of all skilled crafts employees
at the University of California's Los Angeles campus (UCLA).
1
FACTUAL AND PROCEDURAL SUMMARY
JR.pdf
·According to PERB's records, State Employees Trades Council-United (SETC) was originally
certified as the exclusive representative of the UCLA skilled crafts unit on January 5, 2006,
after it prevailed over International Union of Operating ·Engineers, Local 501 (Local 501) in a
decertification election. More recently, PERB issued a certification in favor of SETC dated
February 23, 2015, following an unsuccessful decertification election initiated by Local 501.
On October 30, 2015, PERB received a copy of Local 2010's request for recognition. In its
request, Local 2010 claimed that SETC had disclaimed interest in representing the unit on
October 23, 2015.
On November 24, 2015, Local 501 filed an intervention petition for a unit that included some,
but not all, of the UCLA skilled crafts employees.2
On December 15, 2016, the parties were notified that Local 2010 and Local 501 had submitted
adequate proof of support for their respective petitions.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of PERB's Regulations may be found at www.perb.ca.gov.
1
The intervention petition described the unit as including "Service Engineers,
Operating Engineers, Mechanics & Workers working with the Engineers."
2

SF-RR-969-H
February 23, 2016
Page2
On
January 8, 2016, UCLA filed its response to the petitions. UCLA denied Local
2010'srequest for recognition, claim,ing 1,mcertainty over whether the unit was still represented
by
SETC. UCLA also noted that Local 2010 had disputed the appropriateness
of
the unit
proposed
by
Local 501.
On January 19, 2016, as noted, Local 2010 filed its petition for an investigation. Local 2010
asserted that SETC validly disclaimed interest in the unit and that Local 501
's
intervention
petition should
be
dismissed because it seeks an inappropriate unit.
On January 28, 2016, the undersigned Board agent issued a letter ordering: (1) UCLA to show
cause why
SETC's
disclaimer should not be accepted; and (2) Local 501 to show cause why its
petition should not be dismissed.
On February 10, 2016, Local 501 filed a response that did not include any facts or argument
regarding the appropriateness
of
its proposed unit. Rather, Local 501 asserted that both its
petition and Local 2010's petition should be dismissed as untimely, because they were filed
within the 12-month period following SETC's prior certification.
On
February 11, 2016, UCLA filed a response, accepting
PERB's
determination that SETC'sdisclaimer was valid. 	·
On February 16, 2016, Local 2010 filed a letter opposing Local 501
's
request that the petitions
be dismissed.
DISCUSSION
PERB's
authority to resolve questions
of
representation for employees
of
the University
of
California is conferred by the Higher Education Employer-Employee Relations Act (HEERA).3
HEERA section 3575 allows an employee organization whose request for recognition has been
denied to petition the Board "to investigate and decide the question
of
whether employees have
selected or wish to select an exclusive representative or to determine the appropriateness
of
a
unit." HEERA section 3577 provides that upon receiving such a petition, the Board "shall
conduct inquiries and investigations, or hold hearings, as it deems necessary in order to decide
the questions raised by the petition." (Gov. Code, § 3577, subd. (a)(l)(A).)
HEERA section 3577 goes on to provide:
(b) No election shall be held and the petition shall be dismissed whenever either
of
the following occurs:
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
may be found at
3
www.perb.ca.gov.

SF-RR-969-H
February 23, 2016
Page 3
(2) Within the previous
12
months, either an employee organization other than
the petitioner has been lawfully recognized or certified as the exclusive
representative
of
any employees included in the unit described in the petition, or
a majority
of
the votes cast in a representation election held pursuant to
subdivision (a) were cast for "no representation."
PERB has adopted regulations to implement these statutory provisions. Although not cited by
either party, 4 as relevant here, PERB Regulation 51140 provides:
(a) Whenever a petition filed pursuant to Government Code Section 3575
regarding a representation matter is filed with the Board, the Board shall
investigate and, where appropriate, conduct a hearing and/or a representation
election, or take such other action as deemed necessary to decide the questions
raised by the petition.
(b) A petition shall be dismissed in part or in whole whenever the Board
determines that:
(4) A valid election result has beert certified affecting the described unit or a
subdivision thereof within the 12 months immediately preceding the date
of
filing
of
the petition.
In this case, there is no dispute that Local 2010's request for recognition, Local 501
's
intervention petition, and Local 2010's petition for investigation were all filed within
12
months
of
the certification
of
the previous election result. Nevertheless, Local 2010 advances
two arguments for why no "election bar" should apply, and why the petitions should not be
dismissed as untimely. 5
Judicial Estoppel
Local 2010 argues that the doctrine
of
judicial estoppel prevents Local 501 from raising the
election bar, assuming it applies,
anhis
point.
PERB has applied the following test for judicial estoppel:
In addition to HEERA section 3577, Local 501 cites PERB Regulation 32776, but that
regulation concerns the processing
of
a decertification petition, not a petition for investigation.
Local 2010 only addresses HEERA section 3577.
4
Local 2010 asks that Local 501 's intervention petition be dismissed due to Local
501 's failure to show cause why its proposed unit was appropriate. Presumably, this would
leave UCLA free to voluntarily recognize-or require PERB to certify- Local 2010as the
exclusive representative of the unit. (See PERB Regulation 51096.)
5
·

SF-RR-969-H
February 23;2016
Page 4
(1) the same party has taken two positions; (2) the party was successful in
asserting the first position (i.e., the tribunal adopted the position or accepted it
as true); (3) the two positions are totally inconsistent; (4) the positions were
taken in judicial or quasi-judicial administrative proceedings; and (5) the first
position was not taken as a result
of
ignorance, fraud, or mistake.
(Trustees
of
the California State University
of
the California (2008) PERB Decision No. 1949-
H.) At a minimum, it does not appear that the first two elements
of
this test are met.
Local 501 has not previously asserted that its intervention petition was· timely under HEERA
section 3577(b)(2) or PERB Regulation 51140(b)(4). The mere act
of
filing an intervention
petition is not an assertion
of
timeliness.
Even assuming Local
501
made such an assertion, PERB has neither adopted it nor accepted it
as true. The election bar issue has not been previously raised
by
any party to this case, and
PERB has not made a determination on it. Local 2010's claim that "PERB accepted Local
501
's
assertion that its petition was timely when it accepted the filing" rests on a
misunderstanding
of
the process. Under PERB Regulations 51040(a), an intervention petition
is filed with the employer, and a copy is served on the appropriate PERB regional office.
PERB' s only duty with respect to such a petition is to make a determination regarding the
intervenor's proof
of
support, unless the proof
of
support is submitted to a third party, in which
case PERB has no role at all. (PERB Regulations 51050, 51055.) Not until it receives a
petition for investigation under PERB Regulation 51140 may PERB resolve any disputed
issues, including timeliness. 	·
Therefore, the elements
of
judicial estoppel are not met in this case. 6
Unusual Circumstances
Local 2010 also argues that PERB should find an exception from the election bar in the case
of
"unusual circumstances," specifically, a disclaimer
of
interest by the previous incumbent.
Local 2010 cites the National Labor Relations Board's (NLRB) decision in WTOP, Inc. (1955)
114 NLRB 1236 (WTOP), invoking the principle that "[c]ases involving the federal labor laws
are persuasive precedent in the interpretation
of
similarly worded California labor relations
statutes." (Alhambra City and High School Districts (1986) PERB Decision No. 560.)
However, Local 2010's claim that HEERA section 3577(b)(2) and NLRA section 9(c)(3) are
"so similar PERB is compelled to look to NLRB precedent
in
this case" is unpersuasive.
Local 2010 claims that WTOP was a case interpreting the election bar in section 9(c)(3)
of
the
National Labor Relafions Act (NLRA). This is not accurate. Section 9(c)(3) provides, as
relevant here: 	"No election shall be directed in any bargaining unit or any subdivision within
It is also doubtful that Local 501 could have raised the election bar issue without
filing an otherwise valid intervention in this case.
6

SF-RR-969-H
February 23, 2016
Page 5
which, in the preceding twelve-month period, a valid election shall have been held.'" (29
U.S.C. § 129(c)(3).) But WTOP addressed a different rule, the:
well-established Board rule that, in the absence
of
unusual or special
circumstal).ces, a Board certification will be treated as identifying the statutory
bargaining representative with certainty and finality for a period
of
1 year, and
that, in order to protect the bargaining relationship from disturbance during that
period, the Board will dismiss petitions filed before the 12th month
of
the year.
(WTOP, supra, at p. 1237, citing Brooks
v.
NLRB (1954) 348 U.S. 96 (Brooks).) This rule is
the "certification bar," adopted
by
the NLRB through case law. (Brooks, supra, at pp. 98-102.)
The certification bar pre-dates section 9(c)(3), which was added
by
the Labor-Management
Relations Act
of
194 7. (Ibid.) 7
Local 2010 does not cite, and the undersigned Board agent has been unable to locate, any
NLRB case finding an "unusual or special circumstances" exception from the section 9(c)(3)
election bar. In Brooks, the U.S. Supreme Court went so far as to assert that no such exception
could apply, noting that after the amendment to add section 9(c)(3), the NLRB "continued to
apply its 'one-year certification' rule
...
, except that even 'unusual circumstances' no longer
left the [NLRB] free to order an election where one had taken place within the preceding 12
month~." (Brooks, supra, 348 U.S. at pp. 102-103.)8
In light
of
the fact that the "unusual or special circumstances" exception appears to apply only
to the NLRB's·non-statutory certification bar, and not to the NLRA section 9(c)(3) election bar
(Brooks, supra, 348 U.S. at pp. 102-103),
"it
is not clear that such an exception may apply to
HEERA section 3 577 (b )(2), which is a statutory election, certification, and recognition bar.
In any event, while the Board has not addressed this issue in a precedential decision, it has
done so
by
regulation. PERB Regulation 51140(b)(4) is quite clear that a petition for
investigation filed within the 12 months following a valid election result "shall be dismissed."
The Board has previously held that it "cannot modify its regulations by decisional law." (State
of
California (Department
of
Corrections & Rehabilitation) (2009) PERB Order No. Ad-382-
The same reasoning underlying the certification bar was extended to the
circumstances
of
voluntary recognition, resulting in the adoption
of
a recognition b,ar. (Keller
Plastics Eastern, Inc. (1966) 157 NLRB 583, 587.)
7
There are other exceptions from the section 9(c)(3) election bar. For one, prematurely
filed petitions will not be dismissed
if
the election itself will be held outside
of
the 12-month
period. (Vickers, Inc. (1959) 124 NLRB 1051; Weston Biscuit Co. (1955) 117 NLRB 1206.)
For another, the election bar does not "preclude the employer's employees from validly
selecting the union as their representative by means of authorization cards during the year
following the issuance of the certification of results of the prior election." ( Camvac
International, Inc. (1990) 297 NLRB 853.)
8

SF-RR-969-H
February 23, 2016
Page 6
S.) 	It is concluded, therefore, that there is no unusual circumstances exception from PERB
Regulation 51140(b)(4), and the petition for investigation must be dismissed.
9
Right
of
Appeal
An appeal
of
this decision to the Board itself
maybe
made within ten (10) calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 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) 3 22-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; 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. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay
of
any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If
.a timely appeal is filed, any other party may file with the Board an original and five (5)
copies
of
a response to the appeal within ten (10) calendar days following the date
of
service
of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Because the plain language
of
this regulation requires dismissal
of
an untimely
petition, Local 2010's argument that its interpretation better "effectuates HEERA's purpose as
a whole" need not be addressed. (Department
of
Alcoholic Beverage Control
v.
Alcoholic
Beverage Control Appeals Bd. (2003) 109 Cal.App.4th 1687, 1695-1696 [if the words of a
regulation, "given their usual and ordinary meaning, are clear and unambiguous, [the court]
presume[ s] the adopting authority meant what it said and the plain language of the regulation
applies"].)
9

SF-RR-969-H
February 23, 2016
Page 7
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the regional office. A "proof of service" must accompany each copy of a
document served upon a party or filed with the Board itself (see Cal. Code Regs., tit. 8,
§ 32140 for the required contents). The document will be considered properly "served" when
personally delivered or deposited in the mail or deposited with a delivery service and properly
addressed. A document may also be concurrently served via facsimile transmission on all
parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Sincerely,
Joseph Eckhart
Regional Attorney
JE