San Diego Metropolitan Transit System * * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * (PERB A460M)

* * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT
LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * *
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN DIEGO METROPOLITAN TRANSIT
SYSTEM,
Employer,
and
TRANSIT ELECTROMECHANICS UNION,
Petitioner,
and
PUBLIC TRANSIT EMPLOYEES
ASSOCIATION,
Exclusive Representative.
SMCS Case No. 17-3-137
Case No. LA-PC-16-M
PERB Order No. Ad-460-M
January 23, 2018
Appearance: Juan G. Gonzalez, President, for Transit Electromechanics Union.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on Transit Electromechanics Union’s (TEU) appeal from an administrative
determination by the Board’s Appeals Office. The Appeals Office rejected TEU’s appeal from
a determination by the State Mediation and Conciliation Service (SMCS), after concluding that
SMCS’s determination was not appealable.
Based on our review of TEU’s appeal and the entire record in this matter, we reverse
the administrative determination and remand the matter to the Appeals Office for further
processing.

________________________
BACKGROUND
On October 2, 2017, TEU filed with SMCS a petition for certification to represent a
unit of employees of the San Diego Metropolitan Transit System (System).
On October 6, 2017, SMCS issued an administrative determination denying the
petition. The administrative determination noted that TEU was seeking to sever a smaller unit
from an existing bargaining unit represented by the Public Transit Employees Association
(Association), and concluded that this type of petition was unavailable under the federal
authority that must be applied to representation petitions of this type under Public Utilities
Code (PUC) section 120505 and PERB Regulation 93005.1
On October 12, 2017, TEU filed its appeal of SMCS’s administrative determination,
arguing that its petition was a “Craft Severance Petition,” which is authorized by federal law.
On October 24, 2017, the Appeals Assistant rejected TEU’s appeal on the basis that
“PERB does not have jurisdiction over violations of federal law.” On November 1, 2017, the
Appeals Assistant issued another letter, citing the same ground for rejecting the appeal, but this
time notifying TEU of its right to appeal the administrative determination to the Board itself.
On November 3, 2017, TEU filed its appeal from the Appeals Assistant’s
administrative determination, arguing that SMCS’s determination is appealable under PERB
Regulation 93025, subdivision (d).
DISCUSSION
The System is a transit district established by PUC section 120000 et seq., and its labor
relations are governed by sections 120500-120509. Accordingly it is not subject to the
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

________________________
Meyers-Milias-Brown Act (MMBA), which applies to most local public agencies.2 (See
San Diego Trolley, Inc. (2007) PERB Decision No. 1909-M.) The System’s enabling statute
gives SMCS jurisdiction to investigate and issue determinations on questions concerning
representation. (PUC, § 120505.)3 In doing so, SMCS is directed to “be guided by relevant
federal law and administrative practice developed under the Labor Management Relations Act,
1947, as amended.” (Ibid.)
SMCS was transferred to PERB from the Department of Industrial Relations in 2012.
(Stats. 2012, ch. 46, § 11.) Following this transfer, PERB issued regulations governing
2 The MMBA is codified at Government Code section 3500 et seq.
3 In its entirety, PUC section 120505 provides:
If there is a question of whether a labor organization represents a
majority of employees or whether the proposed unit is the
appropriate unit for collective bargaining, the question shall be
submitted to the State Conciliation Service for disposition. The
service shall promptly hold a public hearing, after due notice to
all interested parties, and shall thereupon determine the unit
appropriate for the purposes of collective bargaining. In making
such determination and in establishing rules and regulations
governing petitions and the conduct of hearings and elections, the
service shall be guided by relevant federal law and administrative
practice developed under the Labor Management Relations Act,
1947, as amended.
The service shall provide for an election to determine the
question of representation and shall certify the results to the
parties. Any certification of a labor organization to represent or
act for the employees in any collective-bargaining unit shall not
be subject to challenge on the grounds that a new substantial
question of representation within such collective unit exists until
the lapse of one year from the date of certification or the
expiration of any collective-bargaining agreement, whichever is
later, except that no collective-bargaining agreement shall be
construed to be a bar to representation proceedings for a period of
more than two years.
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SMCS’s handling of cases arising under the various PUC transit district statutes, including the
System’s. (PERB Regs. 93000-93080.)
Among those regulations is PERB Regulation 93005, which allows the filing of
petitions for certification and decertification. A petition for certification is defined as “a
petition which would arise under paragraph (1)(A)(i) and (1)(B) of Section 9C of the Labor-
Management Relations Act.” (PERB Reg. 93005, subd. (a).) A petition for decertification is
defined as “one of the type which would arise under paragraph (1)(A)(ii) of Section 9(c) of the
Labor-Management Relations Act.” (PERB Regulation 93005, subd. (b).)
The initial processing of such petitions is guided by PERB Regulation 93025.
Subdivision (c) of that regulation allows SMCS to dismiss the petition without a hearing if it
determines either “that there is no reasonable cause to believe that there exists a question
whether a labor organization represents a majority of employees of the district in an
appropriate unit,” or “that the petition has not been filed in accordance with these regulations.”
(PERB Reg. 93025, subd. (c).) Subdivision (d) states that: “Any determination made by the
[SMCS] Supervisor pursuant to this Section may be appealed to the Board itself in accordance
with Sections 32350 through 32380 or, if applicable, in accordance with and subject to the
limitations provided in Section 32200.” (See also San Diego Metropolitan Transit System
(2016) PERB Order No. Ad-441-M, p. 2, fn. 1.)
Based on PERB Regulation 93025, we conclude that SMCS’s administrative
determination was appealable. SMCS determined that TEU’s petition was not a proper
decertification petition under subdivision (b) of PERB Regulation 93005 because federal law
precludes a severance petition, and accordingly dismissed the petition without conducting a
hearing. Whatever the merits of that determination, it is unquestionably a “determination made
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by the [SMCS] Supervisor pursuant to [PERB Regulation 93025].” (PERB Reg. 93025, subd.
(d).) It may therefore be appealed to the Board itself. (Ibid.) We remand the matter to the
Appeals Office and will issue a decision on the merits of TEU’s appeal after the other parties
have had an opportunity to respond to the appeal. (PERB Reg. 32375.)
ORDER
The Appeals Office’s administrative determination in Case No. LA-PC-16-M is hereby
REVERSED and the matter is remanded to the Appeals Office for further processing.
Chair Gregersen and Member Banks joined in this Decision.
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