West Contra Costa County Healthcare District (PERB 2164M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU-UNITED HEALTHCARE WORKERS
WEST LOCAL 2005,
Charging Party,
V.
WEST CONTRA COSTA COUNTY
HEALTHCARE DISTRICT,
Respondent.
Case No. SF-CE-691-M
PERB Decision No. 	2164-M
February 24, 2011
Appearances: 	Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr., Attorney, for
SEIU- United Healthcare Workers West Local 2005; Foley & Lardner by Gregory W.
McClune and Kristy Kunisaki },1arino, ,~~ttorneys, for \Vest Contra Costa County Healthcare
District.
Before Dowdin Calvillo, Chair; McKeag and Miner, Members.
DECISION
Mll'~ER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by SEIU United Healthcare Workers West Local 2005 (SEIU), from a
Board agent's dismissal
of
an unfair practice charge. The charge alleged that the West Contra
Costa County Healthcare District (District) violated sections 3502, 3503 and 3506
of the
Meyers-Milias-Brown Act (MMBA or Act)1 and PERB Regulation 32603(a), (b) and (d)2
when, during a decertification election period, a lead employee circulated and solicited
employee signatures on a petition criticizing SEIU's activities and requested that the District
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB 's regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

restrict SEIU' s access to bargaining unit employees. The Board agent determined that the
charge failed to state a prima facie violation
of
the MMBA and therefore dismissed the charge.
The Board has reviewed the dismissal and the record in light
of
SEIU's appeal, the
District's response and the relevant law. Based on this review, the Board affirms the dismissal
of
the charge for the reasons discussed below.
BACKGROUND
At all relevant times, SEIU was the exclusive representative
of
a unit
of
employees,
including housekeepers, employed by the District at the Doctors Medical Center
San Pablo/Pinole. SEIU and the District were parties to a memorandum
of
understanding
(MOU) governing wages, hours and terms and conditions
of
employment
of
bargaining unit
employees. 	Section
19
of
the MOU provides that SEIU representatives shall have reasonable
access to the District's facilities, both in public areas and in designated non-work areas, for the
purpose
of
communicating with employees.
On March 2, 2009, the National Union
of
Healthcare Workers (NUHW) filed a petition
with PERB seeking to decertify SEIU as the exclusive representative
of
employees in
the
unit
represented by SEIU.
Roger Allen (Allen) is employed by the District in the classification
of
EVS lead
housekeeper. 3 The position
of
lead housekeeper is included in the bargaining unit covered by
the MOU. In addition to his regular housekeeper duties, Allen is in charge
of
the EVS
department when the managers are away. In that capacity, Allen has the authority to assign
and reassign employees, direct their work, adjust schedules and call in replacement employees
to cover staff 	overtime 	necessary to cover vacancies, and report
3 "EVS" stands for the Environmental Services Department.
2

employees for insubordination. As the lead housekeeper, Allen receives $1.10 more per hour
than other employees,
According to testimony provided by Allen in a related hearing on August 25, 2009, in
PERB Case Nos. SF-CE-641-M, SF-CE-648-M, SF-CO-201-M, and SF-DP-281-M, Allen
performs a variety
of
duties when he is in charge
of
the EVS during the absence
of
the
manager. 4 In the mornings, before his supervisors arrive, he sometimes has to decide where
to
assign an employee. He also answers phone calls in the office and orders supplies. In
addition, he has the authority to adjust the schedule and call in replacements when people call
in sick. 	To do so, Allen either goes down the seniority list and calls people in or, depending
upon the census in the hospital, moves workers around by reassigning them during their shift.
If
a department calls in with a request, such as to have a bed made, Allen has the authority to
direct a particular housekeeper to perform the work. Allen has the authority to offer overtime
to housekeepers on the basis
of
seniority
if
he is unable to get someone else to come in without
incurring overtime. Allen has the authority to report a housekeeper for insubordination
in
the
event the employee refuses to perform work directed by him. Allen testified, however,
that
he
does not report to managers whether an employee is doing a good job or a poor job, because
"I'm a union member too."
On April 8, 2009, Allen prepared and circulated a petition among EVS employees and
employees in other departments who are also in the bargaining unit represented by SEID. 	The
petition is addressed to Charm Patton (Patton), human resources department manager,
and
states:
We, 	undersigned, 	others are fed 	with 	harrassment
[sic] of SEIU staff whom you have allowed into our break rooms
4 PERB has the authority to take official notice of its own records. (Palo Verde Unified
School District (1988) PERB Decision No. 689.)
3

throughout the hospital. In doing so, you have infringed on our
rights to take our breaks and lunches in peace.
Last week the Radiology/Ultrasound Dept. called the security
guards on the SEIU staff who came to their break room. Also,
yesterday afternoon I was paging one
of
our EVS employees
overhead and by her pager for 15-20 minutes. When the EVS
employee finally responded to my page, she told me that she was
putting toilet tissue in a bathroom. While she was still there, a
SEIU
staff
member approached her and started talking rather
rudely to her.
SEIU
staff
are NOT to approach employees while they are
working! 	They are not to approach employees at all. SEIU staff
should wait for the employee to come to them
if
they have any
questions.
We, the undersigned, request that you inform SEIU staff to stay
out
of
the break rooms in all shifts, so we can take our breaks and
J.lunch"";,..,	J.J_
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y{"\u	
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staff	..l.	
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stay in the cafeteria and not wander around the hospital
harrassing [sic] the employees.
Thank you.
Roger Allen, EVS Lead housekeeper
The petition was signed by twenty employees, including Allen. Six
of
these
employees
were from EVS, with the remainder from other departments.
Subsequently, Allen5 delivered the petition to Patton's office and demanded
that the
District enforce the demands set fmih therein by prohibiting any contact between SEIU
staff
and employees
of
the unit, requiring SEIU staff to stay out
of
the break rooms on all
shifts,
and
restricting SEIU staff to the cafeteria. According to the District, human resources
manager
5 The original charge alleged that the petition was presented by Allen and a group of
bargaining unit employees. The amended charge alleges that the petition was presented by
Allen alone.
4

Lydia Chan informed Allen that the District could not
go
along with the demands and would
allow the SEIU representatives into the employee break room
as
required by the MOU. 6
BOARD AGENT'S DISMISSAL
The Board agent determined that the facts
as
alleged failed to establish that Allen's
actions in soliciting signatures and presenting the petition to the District may be imputed to the
District. Accordingly, the Board agent dismissed the charge for failure to state a prima facie
case
of
unlawful domination or interference with protected activities.
CHARGING PARTY'S APPEAL
On appeal, SEIU contends that it has made a prima facie showing that: (1) Allen had
supervisory authority over bargaining unit employees; (2) Allen's duties made it reasonable for
bargaining unit employees to believe that he had apparent authority from the District to
circulate a petition to employees at the worksite and on work time on the issue
of
whether
SEIU's access rights should be restricted during a decertification election; (3) the District
either knew of, consented to, or approved the petition; (4) the District did so for the purpose of
interfering with the bargaining unit members' right to be represented by SEID; and (5) this
conduct interfered with SEIU' s rights to represent its members and access their place
of
employment, as well as encouraged employees to join and support the decertification petition.
DISCUSSION
MMBA section 3502 guarantees to covered public employees the right to form, join,
and participate in the activities of employee organizations of their own choosing for the
purpose of representation on matters of employer-employee relations. 	Section 3 503 affords
5
In determining whether to issue a complaint, the Board may consider uncontroverted
facts provided by a respondent. (Service Employees International Union #790 (Adza) (2004)
PERB Decision No. 1632-M; Kings In-Home Supportive Services Public Authority (2009)
PERB Decision No. 2009-M.)

recognized employee organizations the right to represent their members in their employment
relations with public agencies. PERB Regulation 32603(d) makes it an unfair practice for a
public agency to dominate or interfere with the formation or administration
of
any employee
organization, to contribute financial or other support to it, or in any way encourage employees
to join any organization in preference to another in violation
of
the rights guaranteed by
MMBA section 3502. 7 To state a prima facie case
of
unlawful domination or interference, the
charging party must allege facts that demonstrate that the employer's conduct tends to interfere
with the internal activities
of
an employee organization or tends to influence the choice
between employee organizations. (Santa Monica Community College District (1979)
PERB
Decision No.
103
(Santa Monica); Redwoods Community College District (1987) PERB
Decision No. 650.)8 Proof that an employer intended to unlawfully dominate, assist or
influence employees' free choice is not required, nor is it necessary to prove that employees
actually changed membership as a result
of
the employer's act. (Santa Monica.) The threshold
test is "whether the employer's conduct tends to influence [free] choice or provide stimulus in
one direction or the other." (Ibid.)
The central issue in this case is whether the charge alleges sufficient facts that,
if
proven at hearing, would establish that, in circulating and presenting the petition seeking to
7 PERB Regulation 32603 also makes it an unfair practice for a public agency to: 	"(a)
Interfere with, intimidate, restrain, coerce or discriminate against public employees because of
their exercise ofrights guaranteed by Government Code section 3502 or by any local
rule
adopted pursuant to Government Code section 3507" and "(b) Deny to employee
organizations rights guaranteed to them by Government Code section 3503, 3504.5, 3505.1,
3505.3, 3507.1, 3508(d) or 3508.5 or by any local rule adopted pursuant to Government Code
section 3507."
8 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
6

restrict SEIU' s access to employees, Allen acted with the apparent authority
of
the District so
as to state a prima facie case
of
unlawful domination or interference.
Apparent Authority9
Both PERB and the courts have held that apparent authority to act on behalf
of
the
employer may be found where the manifestations
of
the employer create a reasonable basis for
employees to believe that the employer has authorized the alleged agent to perform the act in
question. (Compton Joint Unified School District (2003) PERB Decision No. 1518 (Compton);
Chula Vista Elementary School District (2004) PERB Decision No. 1647 (Chula Vista);
Inglewood Teachers Assn.
v.
Public Employment Relations Bd. (1991) 227 Cal.App.3d 767,
781
(Inglewood).) Thus, apparent authority may be found when the employer has knowledge
of
its employee's activities and fails to repudiate or disavow them (Compton; Chula Vista;
Antelope Valley Community College District (1979) PERB Decision No. 97) or where
the
employer engages in additional acts in furtherance
of
the agent's conduct that signify
that
it has
ratified the employee's conduct (Compton [in addition to having knowledge
of
threats
made
by
bargaining unit employee and failing to repudiate them, school principal questioned an
employee about a meeting where the alleged threats occurred and removed her from the school
leadership team].) "[T]he burden
of
proving agency, as well as the scope
of
the agent's
authority, rests upon the party asserting the existence
of
the agency and seeking to charge the
principal with the representation
of
the agent." (Inglewood, at p. 780.)
SEIU contends that, because Allen's duties as lead housekeeper included a variety
of
supervisory duties, he was acting with the apparent authority of the District when he circulated
and presented 	petition seeking to 	SEIU' s access to 	employees.
Because the only sworn testimony on this issue is that provided by SEIU to the Board agent,
9 SEIU does not contend that Allen had actual authority to act on behalf of the District.
7

SEIU contends, only an administrative law judge can determine whether Allen's "laundry list
of
duties as a 'lead' worker are sufficient manifestations to create a reasonable basis for
employees to believe that he had apparent authority to act" on behalf
of
the District.
To state a prima facie case, however, the charging party must allege sufficient facts
that,
if
proven true at a subsequent hearing, would establish a violation
of
the Act. 	(Oakland
Unified School District (2009) PERB Decision No. 2061.) PERB Regulation 32615(a)(5)
requires, inter alia, that an unfair practice charge include a "clear and concise statement
of
the
facts and conduct alleged to constitute an unfair practice." The charging party's burden
includes alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid; Charter Oak Unified
School
District (1991) PERB Decision No. 873.)
Apart from the allegations regarding Allen's supervisory duties, the charge fails
to
allege any facts that would establish that the District created a reasonable basis for employees
to believe that Allen was authorized to engage in the conduct
of
circulating a petition seeking
to
restrict SEIU's access to bargaining unit employees. The charge also fails to allege facts
that would establish knowledge or ratification
of
Allen's conduct by the District. Nonetheless,
SEIU asserts that the fact that Allen was authorized to perform some duties that could
be
considered supervisory vested him with apparent authority to act on behalf of the District 	all
areas. 	The charge is devoid of any facts that would establish that the performance of these
duties would reasonably lead employees to believe that 	was 	to circulate
petitions on behalf of the employer requesting the exclusion of union representatives. 	To the
contrary, the facts as alleged would tend to lead a reasonable person to believe that Allen was
8

not acting on behalf
of
the employer but rather on behalf
of
bargaining unit employees when
he
presented the petition to the District. The mere fact that Allen had the authority to perform
some supervisory duties in the absence
of
his own supervisors is insufficient to establish that
he had apparent authority to act on behalf
of
the District in circulating a petition seeking to
limit SEIU' s access to bargaining unit employees.
Moreover, the charge fails to allege facts that would establish knowledge or ratification
of
Allen's conduct by the District. There is no showing that the District knew of, consented
to
or authorized Allen's actions. Rather, the facts indicate that the District had no knowledge
of
Allen's conduct and rejected his request when presented with it. Therefore, the charge fails to
state facts sufficient to establish that Allen had apparent authority to circulate the petition.
District's Knowledge
SEIU contends that its theory
of
liability does not require that additional facts
be
alleged to establish that the District had independent knowledge
of
Allen's conduct, and that
Allen's own knowledge and approval
of
the petition is sufficient to impute knowledge
to
the
District. As discussed above, however, for apparent authority to exist, there must be a showing
of facts to indicate that the actions
of
the District created a reasonable belief that the District
authorized Allen to act on its behalf in circulating the petition. No such facts are alleged here.
SEIU also asserts that it disputes the District's assertion that it rejected the petition.
While SEIU contends that it presented evidence at a consolidated hearing in the related case
that the District "engaged in deliberate conduct to do exactly what Mr. Allen's petition
demanded, that is, restrict SEIU-UHW's access rights," it has provided no facts to support this
assertion 	matter. Accordingly, SEIU's argument is rejected.
9

CONCLUSION
SEIU has failed to establish a prima facie case
of
unlawful domination or interference
based upon Allen's circulation and presentation
of
a petition seeking to restrict SEIU's access
to bargaining unit employees. Accordingly, the charge is dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-691-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.