County of Orange (PERB 2294M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ORANGE COUNTY MEDICAL & DENTAL
ASSOCIATION,
Charging Party, Case No. LA-CE-734-M
Vv. PERB Decision No, 2294-M
COUNTY OF ORANGE, November 30, 2012
Respondent.

Appearance: Lawrence Rosenzweig, a professional corporation by Lawrence Rosenzweig,
Attorney, for Orange County Medical & Dental Association.

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Orange County Medical & Dental Association (OCMDA or
Association) from the dismissal (attached) of its unfair practice charge. The charge alleged
that the County of Orange (County) violated the Meyers-Milias-Brown Act (MMBA)' by
(1) refusing to process the Association’s request for modification of the Healthcare
Professional Unit; (2) refusing to allow an appeal by the Association to be processed by the
Board of Supervisors regarding the County’s denial of the request for modification; and
(3) violating the physicians’ and dentists’ rights as professional employees to a separate
bargaining unit. The charge alleged that this conduct constituted a violation of sections 3507

and 3507.3 of the MMBA and sections 7, 8, 9, 10 and 11 of the Orange County Employee

The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Relations Resolution (ERR). The Office
of
the General Counsel dismissed the charge for
failure to state a prima facie case. The Association filed a timely appeal.
The Board has reviewed the record in its entirety and given full consideration to the
Association's appeal. Based on this review, the Board finds the warning and dismissal letters
to be well-reasoned, adequately supported by the record and in accordance with the applicable
law. Accordingly, the Board hereby adopts the warning and dismissal letters as the decision
of
the Board itself, supplemented by a brief discussion
of
the appeal.
DISCUSSION
The Association raises three issues on appeal. First, the Association argues that ERR
section 9A is illegal on its face. Under section 9A, the window period for filing a request for
modification is as follows:
Requests for modification
of
an established representation unit may be
filed only during the 30 days beginning nine months before the
expiration
of
the unit's current Memorandum
of
Understanding.
(ERR,§ 9A.)
The Association argues that this rule does not allow for the filing
of
a request for modification
after the expiration
of
a memorandum
of
understanding.
The charge alleges, however, that the Association's request for modification was filed
pursuant to section 9A, and explicitly acknowledges the applicability
of
the window period
provided for 	the ERR:
The request for modification was filed 	a timely manner, pursuant to
the County Resolution. The resolution requires an employee
1",<UHL,<tUU'H
to file during the window period. The question of 	long
the County takes to process a petition or a request is not addressed.
Charging party complied with its obligations under the resolution.
(Initial charge, attachment, p. 1.)
2

To the extent the Association is asking the Board to opine about the reasonableness
of
this rule as applied in a factual context unrelated to the facts
of
this charge, the Board declines
the invitation. PERB does not issue advisory opinions or generalized declarations
of
law.
(Santa Clarita Community College District (College
of
the Canyons) (2003) PERB Decision
No. 1506.)
To the extent the Association is alleging that it filed its request for modification after
the expiration
of
a memorandum
of
understanding and before the execution
of
a successor
agreement, the Association may not do so for the first time on appeal without good cause.
(PERB Reg. 32635, subd. (b).2) The Board has found good cause when "the information
provided could not have been obtained through reasonable diligence prior to the Board agent's
dismissal
of
the charge." (Sacramento City Teachers Association (Ferreira) (2002) PERB
Decision No. 1503.) Such is not the case here. We note that the Association was invited to
amend its charge in a pre-dismissal warning letter, which provided a methodical and
comprehensive analysis
of
the deficiencies
of
the charge, but declined to do so.
Second, the Association argues that the County should have allowed the Association's
appeal
of
the County's denial
of
the Association's request for modification to go forward to the
Board
of
Supervisors under ERR section 9H. This issue was adequately addressed in the
warning letter, and requires no further discussion.
Last, the Association argues that it should not be penalized for the County's delay in
processing the Association's requests for verification and modification. As alleged, the
Association filed its requests on October 13, 2011. The timing of the Association's filings left
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

the County with insufficient time to act before the window period closed.3 Thirteen calendar
days (nine business days) later, on October 26, 2011, the County recognized the Association as
a verified employee organization. Had the Association filed its request for verification at the
beginning
of
the window period, assuming no change in response time by County, the
Association would have had sufficient time within the window period to file its request for
modification as a verified employee organization. Moreover, there
is
no window period under
the ERR for filing a request for verification. Such requests can be filed at any time under the
ERR. Assuming arguendo the legal relevance
of
the Association's third argument, as a factual
matter, the Association's assertion that the County delayed the processing
of
the Association's
requests to the prejudice
of
the Association is not supported by the allegations
of
the charge.
ORDER
The unfair practice charge in Case No. LA-CE-734-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
3 See letter
of
November 18, 2011, from the County to 	Association, attached as
Exhibit D to the unfair practice charge:
Unfortunately, since the County was not able to assess the
information you provided and recognize OCMDA as a verified
employee organization in the one day that would have been
required in order for the request to have been timely, the request
for modification as a verified employee organization was outside
the window for filing for the unit modification.
4

STATE
OF
CALIFORNIA 	EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT
_._"'-~LATIONS
BOARD
f
Sacramento Regional Office
l 031 18th Street
Sacramento, CA 95811-4124
Telephone (9 I
6)
322-3 l 98
Fax: (916) 327-6377
ff
September
5,
2012
Lawrence Rosenzweig, Attorney
Law Offices
of
Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: Orange County Medical & Dental Association
v.
County
of
Orange
Unfair Practice Charge No. LA-CE-734-M
DISMISSAL LETTER
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2011. The Orange County Medical & Dental
Association (OCMDA or Charging Party) alleges that the County
of
Orange (County) violated
its local rules and the Meyers-Milias-Brown Act (MMBA or Act) 1 by:
1)
refusing to process
Charging Party's request for modification
of
the Healthcare Professional Unit (Healthcare
Unit); 2) refusing to allow an appeal by Charging Party to be processed by the Board
of
Supervisors regarding the County's denial
of
the request for modification; and 3) violating the
physicians' and dentists' rights as professional employees to a separate bargaining unit.
Charging Party alleges the County's conduct violated sections 3507 and 3507.3
of
the
MMBA
and sections 7, 8, 9, 10 and
11
of
the Orange County Employee Relations Resolution (ERR).
Charging Party was informed in the attached Warning Letter dated August 14, 2012, that the
above-referenced charge did not state a prima facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. 	You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it on or before August 24, 2012, the charge
would be dismissed. On August 24, 2012, Charging Party received an extension
of
time to
August 31, 2012, to respond to the Warning Letter dated August 14, 2012.
On September 4, 2012, you informed me by telephone that Charging Party would not be filing
an amended charge. Therefore, the charge is hereby dismissed based on the facts and reasons
set forth in the August 14, 2012 Warning Letter.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-734-M
September
5,
2012
Page 2
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. 	(Cal. Code Regs., tit.
8,
§ 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies
of
all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit.
8,
§§
32135, subd. (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. 	(Cal.
Code
Regs., tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
32090
and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Cal. Code Regs., tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and 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).)
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-734-M
September
5,
2012
Page 3
Extension
of
Time
A request for an extension
of
time, in which to file a document 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 (3) 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. (Cal. Code Regs., tit.
8,
§ 32132.)
Final Date
If
no
appeal
is
filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By~~
Ronald Pearson
Senior Regional Attorney
Attachment
cc: Carl Crown, Human Resources Director

STA TE OF
CALIFORNIA 	EDMUND
G.
BROWN
	Governor
PUBLIC EMPLOYMENT h...GLATIONS BOARD
f
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Teiephone: (9 I 6) 322-3198
Fax: (916) 327-6377
f
August
14,
2012
Lawrence Rosenzweig, Attorney
Law Offices
of
Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	Orange County Medical & Dental Association
v.
County
of
Orange
Unfair Practice Charge No. LA-CE-734-M
WARNING LETTER
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2011. The Orange County Medical & Dental
Association (OCMDA or Charging Party) alleges that the County
of
Orange (County) violated
its local rules and the Meyers-Milias-Brown Act (MMBA or Act) 1 by:
1)
refusing to process
Charging Party's request for modification
of
the Healthcare Professional Unit (Healthcare
Unit); 2) refusing to allow an appeal by Charging Party to be processed by the Board
of
Supervisors regarding the County's denial
of
the request for modification; and 3) violating the
physicians' and dentists' rights as professional employees to a separate bargaining unit.
Charging Party alleges the County's conduct violated sections 3507 and 3507.3
of
the
MMBA
and sections 7,
8,
9, 10 and
11
of
the Orange County Employee Relations Resolution (ERR).
The County filed a position statement in response to the Charge on December 21, 2011.2
Summary
of
Facts
OCMDA is an employee organization seeking to represent physicians and dentists employed
by the County. Physicians and dentists are professional employees in the County's Healthcare
Unit. This unit also includes approximately 66 other classifications including non-professional
classifications such as dental hygienists, health education assistants, and dental assistants. 	The
Healthcare Unit is exclusively represented by the Orange County Employees Association.
1 The MMBA is codified at Government Code section 3500 et seq. 	The text
of the
J\1MBA and PERB Regulations may be found at vrww.perb.ca.gov. Unless otherwise
indicated, all statutory references are to the Government Code.
2 A Board agent is permitted to consider undisputed facts provided by a respondent
during the investigation of a charge. (Service Employees International Union #790 (Adza)
(2004) PERB Decision No. 1632-M.)

LA-CE-734-M
August 14, 2012
Page 2
On October 13, 2011, Charging Party filed a request with the County to be recognized as a
verified employee organization. On October 13, 2011, Charging Party also filed with the
County a request
to
modify the County's Healthcare Unit by severing physicians and dentists
from the established unit. 	Charging Party alleges that "[b ]oth requests were filed in a timely
manner pursuant to the" ERR.
The County has adopted local rules and regulations contained in the ERR governing employer
employee relations pursuant to its authority under MMBA section 3507.
ERR section 3 defines terms that are used in the ERR. An "employee organization" is defined
as "an employee organization which has been verified in accordance with Section
7.
of
this
Resolution. "3
ERR section 7 contains procedures for an employee organization to be verified by the County,
which states in relevant part:
Section
7.
	VERIFICATION AS AN EMPLOYEE
ORGANIZATION
To
be verified as a County employee organization, an employee
organization must comply with the following procedures:
A. A request shall be submitted by the organization, signed by an
authorized representative, to the Personnel Director, and shall
contain the following information: 	(
1)
Name and address
of
organization. (2) A statement that the organization has, as one
of
its primary purposes, the representation
of
County employees in
their employer-employee relations. 	(3) A statement that the
organization includes employees
of
the County as its members
who have designated it to represent them in their employer
employee relations with the County. 	(4) Certified copies
of
the
organization's constitution and by-laws. (5) The names of the
employees it represents together with the class titles and
departments where employed. (6) A designation
of
those persons
who are authorized to act as representatives
of
the organization in
any communications with the Personnel Director and the Board
of Supervisors. 	(7) Proof of representation such as active
membership cards which designate the employee organization as
the representative of the employee in employee-employer
relations or such other proof which in the judgment of the
Personnel Director reasonably tends to demonstrate that the
organization does in fact represent employees of the County.
Charging Party attached a copy of the County's ERR to the Charge as exhibit E.	3

LA-CE-734-M
August 14, 2012
Page 3
B.
	When an employee organization has fulfilled the requirements
of
this section to the satisfaction
of
the Personnel Director, he/she
shall issue a statement that the organization is verified as a
County employee organization representing certain County
employees.
ERR
section 8 contains procedures to establish a new representation unit and criteria for
determining an appropriate representation unit.
ERR
section 9 contains procedure for modifying an established representation unit in
the
County, which states in relevant part:
Section
9.
	MODIFICATION OF REPRESENTATION UNITS
A.
	An
employee organization or Exclusively Recognized
Employee Organization may request the modification
of
an
established representation unit by filing a request with the
Personnel Director accompanied by a petition signed by the
majority
of
the regular and probationary employees within the
requested modified representation unit. The petitions must
include: a) full printed name
of
employee, b) signature, c)
date signed. The signatures on the petition must have been
obtained within 30 days prior to the date the request is
submitted. Requests for modification
of
an established
representation unit may be filed only during the 30 days
beginning nine months before the expiration
of
the unit's
current Memorandum
of
Understanding.
The other subdivisions
of
section 9 contain procedures for posting notice
of
the unit
modification request and resolution
of
challenges by employee organizations regarding
the
composition
of
the proposed unit. 	Subdivision H
of
section 9 states:
If
agreement cannot be reached between the involved employee
organizations or Exclusively Recognized Employee
Organizations and the Personnel Director, the matter shall be
submitted to the Board. The Board shall hold a hearing at which
time the involved employee organizations and the Personnel
Director shall be heard. The Board shall make the final
determination.
On October 26, 2011, the County's Human Resources Director (County Director) informed
Charging Party by letter that the County was recognizing Charging Party as a verified
employee organization.4 In the same letter, Charging Party was informed that its request to
4 The October 26, 2011 letter is attached to the Charge as exhibit B.

LA-CE-734-M
August 14, 2012
Page 4
modify the Healthcare Unit would not be processed because the County can only consider
requests for unit modification from recognized employee organizations pursuant to ERR
section 9A, which requires the County to first recognize Charging Party as a verified employee
organization. 	Charging Party was further informed that when the County made its
determination to verify Charging Party as an employee organization, the time period to file a
unit modification request, which is 30 days beginning nine months before the expiration
of
the
unit's Memorandum
of
Understanding, had passed.
Charging Party alleges the County refused to process the request for modification on the
ground the County was unable to process the requests for verification and modification during
the window period set by the ERR. 	Charging Party also alleges that "the question
of
how
long
the County takes to process a petition or a request is not addressed." Charging Party further
alleges that it "complied with its obligations under the" ERR.
On November 4, 2011, Charging Party filed an appeal with the Board
of
Supervisors, pursuant
to ERR section 9H,
of
the County's denial
of
its request for unit modification. On November
18, 2011, the County Director informed Charging Party by letter that its appeal would
not
be
allowed to proceed. 5 The County informed Charging Party that because its request for
unit
modification was not processed by the County, there is no action to be appealed to the
Board
of
Supervisors.
Charging Party makes three separate allegations regarding the County's conduct. First,
the
County violated its local rules when it refused to process Charging Party's request to modify
the Healthcare Unit. Second, the County violated its local rules by refusing to submit to
the
Board
of
Supervisors Charging Party's appeal
of
the County's refusal to process the unit
modification request. Third, by violating its local rules the County is denying physicians and
dentists their statutory right as professionals to a separate bargaining unit under section 3 507 .3.
The foregoing facts fail to state a prima facie violation
of
the MMBA for the reasons that
follow.
Violation
of
Local Rules
1.
	Violation
of
Local Rules Concerning Request for Unit Modification.
By not processing its request to modify the Healthcare Unit, Charging Party claims the County
violated its own local rules. 	Stated differently, Charging Party alleges it complied with the
procedures in the local rules for requesting modification of a unit but the County refused to
process the request.
5 The November 18, 2011 letter is attached to the Charge as exhibit D.

LA-CE-734-M
August
14,
2012
Page 5
PERB Regulation 32615(a)(5)6 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."
To
do
so, the charging party should include the "who, what, when, where and how"
of
an
unfair practice. (State
of
Cal~fornia (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.) During charge investigation, the
charging party must provide sufficient facts to the Board agent that,
if
proven at a subsequent
hearing, would constitute an unfair practice. (SEIU-United Healthcare Workers West
Local 2005 (Hayes) (2011) PERB Decision No. 2168-M.) 	The charging party's factual
allegations must be accepted as true at the investigation stage
of
the proceedings. (Golden
Plains Unified School District (2002) PERB Decision No. 1489; San Juan Unffied
School
District (1977) EERB 7 Decision No. 12.)
Public agencies are authorized under MMBA section 3507 to "adopt reasonable rules and
regulations after consultation in good faith with representatives
of
an employee organization or
organizations for the administration
of
employer-employee relations." It is an unfair practice
under section 3509(b) and PERB Regulation 32603(g) for a public agency employer to violate
the MMBA or to violate any rules and regulations adopted pursuant to section 3 507. It is well
settled that a Board agent must accept the plain language
of
the contract or rule where it is
clear and unambiguous. (Glendora Unified School District (1991) PERB Decision No. 876;
Butte Community College District (1985) PERB Decision No. 555.) However, where the
contract language or rule is unclear or ambiguous, the Board has held that the parties should be
given an opportunity to offer evidence to support their differing interpretations at an
evidentiary hearing. 	(Long Beach Community College District (2000) PERB Decision No.
1378.)
Two requirements under ERR Section 9 are relevant in analyzing Charging Party's contention
that the County violated its local rules: who may file a request to modify a bargaining unit, and
the time period in which a request may be filed. 	Section 9A provides that "[a]n employee
organization or Exclusively Recognized Employee Organization may request the modification
of
an established representation unit by filing a request with the Personnel Director .... "
(Emphasis added.) Section 3
of
the ERR defines an employee organization as one "which has
been verified in accordance with Section 7
of
the" ERR. 	(Emphasis added.) Thus, the plain
reading of those sections specify that verification of an employee organization by the County
in accordance with section 7 is a prerequisite for an employee organization to file a request to
modify a unit under section
9.
	The Charge does not allege a contrary interpretation
of those
sections.
PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
7 Prior to 1978, PERB was known as the Educational Employment Relations Board, or
EERB.
6

LA-CE-734-M
August 14, 2012
Page 6
Charging Party states it filed a request to be verified as an employee organization on October
13, 2011. On the same day, Charging Party submitted a request for modification
of
the unit.
Charging Party further states the County verified Charging Party as an employee organization
on October 26, 2012. Thus, taking Charging Party's allegations as true, it was not a verified
employee organization on October 13, 2011, when it filed its request to modify the Healthcare
Unit as is required under section 9A.
Charging Party alleges that its request to modify the Healthcare Unit was "filed in a timely
manner, pursuant to the" ERR. 	While Section 7 is silent regarding a timeframe in.which a
request to be verified as an employee organization must be filed, section 9A states "Requests
for modification
of
an established representation unit may be filed only during the 30 days
beginning nine months before the expiration
of
the unit's current Memorandum
of
Understanding." In the October 26, 2011 letter attached to the Charge as exhibit D, the County
notes that Charging Party's requests to be verified as an employee organization and to modify
the unit were filed on the last day
of
the window period contained in section 9 A. 8 Thus, the
Charge and accompanying exhibits provide facts demonstrating that the request for
modification was filed during the applicable window period.
However, the Charge fails to allege any facts or reference any ERR sections that provide the
timely filing
of
a modification request alone requires the County to process the request. 	In
other words, besides stating the request for modification was filed within the applicable
window period and that Charging Party complied with its obligations under the ERR, the
Charge fails to allege facts demonstrating that Charging Party complied with the other
requirements in section 9 for filing a unit modification request. The Charge also states the
ERR "requires an employee organization to file during the window period." (Emphasis
added.) However, Charging Party was not verified as an employee organization as
of
October
13, 2011, when it filed its request to modify the unit, as is required under the plain reading
of
ERR sections 3, 7, and
9.
	Finally, Charging Party fails to allege facts demonstrating that when
it was verified by the County as an employee organization on October 26, 2011, this date fell
within the window period to request a unit modification under section 9A. Thus, the Charge
fails to demonstrate how the County has violated its local rules.
While not so stated, Charging Party appears to argue that when a request for unit modification
is filed in conjunction with a request to be verified as an employee organization, and since
there is no timeframe for how long it takes the County to process a verification request,
if
both
requests are filed within the window period for filing a request for unit modification set forth
8 Under PERB case law a Board agent investigating a charge may determine that facts
properly alleged by a respondent in accordance with PERB Regulation 32620(c), which are not
disputed by the charging party which has notice thereof, and which do not require a credibility
determination, are dispositive of an essential element of the prima facie case, and on that basis,
dismiss the charge. (National Union
of
Healthcare Workers (2012) PERB Decision No. 2249a
M, citing Fontana Teachers Association, CTAINEA (Alexander, et al.) (1984) PERB Decision
No. 416; Golden Plains Un(fied School District, supra, PERB Decision No. 1489.)

LA-CE-734-M
August 14, 2012
Page 7
in section 9A, that a determination
of
the sufficiency
of
the request for unit modification and
the running
of
the applicable window period, are stayed pending determination by the County
of
the request to be verified
as
an employee organization. However, the Charge fails to state
any facts or identify any provisions in the ERR to support this contention. Indeed, a similar
argument regarding the same local rules was addressed in County
of
Orange (2010) PERB
Decision No. 2138-M.9
In County
of
Orange, supra, PERB Decision No. 2138-M, the union filed an unfair practice
charge alleging the County
of
Orange violated the MMBA by rejecting a petition to sever
several classifications from the County's Healthcare Professional bargaining unit. 	(Id. at p. 1.)
The Board found that the County properly rejected the union's severance petition, one
of
the
grounds being that the union was not a "verified " employee organization at the time it filed its
severance petition, which was a requirement under the County's local rules. 	(Id. at
p.
14.) The
union contended that "'once the UAPD was verified [as an employee organization] the petition
should have been activated by the County or the County should have told UAPD to refile in its
own name."' (Id. at
p.
15.) In addressing this contention, the Board noted, "Though the
County could have taken either
of
those actions, there was no legal requirement that it do so.
The County was not obligated to process a petition that had been rejected earlier on proper
grounds, nor was the County required to solicit a new petition from UAPD. 	Consequently, this
argument is without merit." (Ibid.) 	Here, Charging Party appears to make a similar argument,
i.e., once the County verified Charging Party as an employee organization, the County then
should have considered its request to modify the unit as it was timely filed within the window
period. However, there
is
no requirement that the County process Charging Party's request in
this scenario under a plain reading
of
the County's local rules.
What the facts as alleged and taken as true demonstrate is
thi,1t
Charging Party was not verified
by the County as an employee organization as required under section 9A when it filed its
request to modify the Healthcare Unit. The facts as alleged also demonstrate that the date
Charging Party was verified as an employee organization, October 26, 2011, was outside the
window period for filing a request for unit modification.
Charging Party also alleges the "County has represented, and PERB has ruled, that filing a
request for modification under section 9A
of
the resolution is the appropriate method to sever
classifications from an already existing unit. (See PERB Dec. No. 2138-M, 2010)).
However, Charging Party fails to state facts demonstrating that the County's representation and
the cited PERB decision excuses an employee organization from complying with the
requirements under section 9A when seeking to sever classifications from an existing unit. 	As
discussed above, in County
of
Orange, supra, PERB Decision No. 2138-M, the Board upheld
The County of Orange's Employee Relations Resolution, which is attached to the
charge as exhibit E, notes that it was adopted in May 1990. That is the same date, as noted by
the Board in County o_[Orange, supra, PERB Decision No. 2138-M, when the County of
Orange adopted its Employee Relations Resolution in that case. 	(Id. at p. 2.)
9

LA-CE-734-M
August 14, 2012
Page 8
the Administrative Law Judge's determination that the County
of
Orange properly denied the
union's severance petition for failing to comply with ERR Section 9.A. (Id. at p. 14.)
Thus, Charging Party fails to allege facts sufficient to state a prima facie case that the County
violated its local rules and the MMBA when it refused to process Charging Party's request to
modify the Healthcare Unit.
2. 	Violation
of
Local Rules Concerning Appeals to the Board
of
Supervisors.
Charging Party alleges the County violated its local rules when it refused
to
submit to
the
Board
of
Supervisors Charging Party's appeal
of
the County's denial
of
its request for unit
modification. 	Charging Party states that on November 4, 2011, it appealed the County's denial
of
its request for modification to the Board
of
Supervisors pursuant to ERR section 9H,
that
provides for an appeal to the Board
of
Supervisors. Charging Party further states that in a
letter dated November 18, 2011, the County Director refused to allow the appeal to proceed to
the Board
of
Supervisors. The November 18, 2011 letter from the County, which is attached to
the Charge as exhibit D, states that the appeal was not processed by the County Director to the
Board
of
Supervisors because Charging Party's request for unit modification was not
processed.
ERR section 9 contains procedures for requesting and modifying an established representation
unit in the County. A plain reading
of
subdivision H, along with the other subdivisions
in
section 9, indicate that the subject matter that may be submitted to the Board
of
Supervisors for
determination
is
a disagreement between the involved parties (employee organizations or
Exclusively Recognized Employee Organizations and the Personnel Director) regarding the
appropriateness
of
a representation unit, and not a refusal to process a request for unit
modification.
The Charge fails to allege facts
of
a disagreement among the affected parties regarding the
appropriateness
of
a unit, or that the procedures in ERR section 9 were complied with that
would require the matter be submitted to the Board
of
Supervisors. Further, a plain reading
of
section 9 does not state that a party can "appeal" the refusal by the County to consider a
request for unit modification. 	Accordingly, Charging Party fails to state a prima facie case that
the County violated its local rules by refusing to process Charging Party's appeal
of
the
County's denial of Charging Party's request for unit modification.
3. 	Violation
of
Local Rule and Statutory Right to Separate Bargaining Unit.
Charging Party contends the County's refusal to process its unit modification request violates
the County's local rule and MMBA section 3507.3 because physicians and dentists are
professional employees and have a statutory right to a separate bargaining unit. 	Charging

LA-CE-734-M
August 14, 2012
Page 9
Party cites Alameda County Assistant Public Defenders Association
v.
County
of
Alameda
(1973)
33
Cal.App.3d 825, in support
of
this contention.
10
Section 3507.3 states:
Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by a
professional employee organization consisting
of
those
professional employees. In the event
of
a dispute on the
appropriateness
of
a unit
of
representation for professional
employees, upon request
of
any
of
the parties, the dispute shall be
submitted to the California State Mediation and Conciliation
Service for mediation or for recommendation for resolving the
dispute.
"Professional employees," for the purposes
of
this section, means
employees engaged in work requiring specialized knowledge and
skills attained through completion
of
a recognized course
of
instruction, including, but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and the various
types
of
physical, chemical, and biological scientists.
Section 8H, which lists certain criteria to consider for determining an appropriate
representation unit, states in relevant part:
Professional employees shall not be denied the right to be
represented separately from non-professional employees by a
professional employee organization consisting
of
such
professional employees.
Charging Party fails to state facts sufficient to demonstrate a prima facie violation
of
the
MMBA or the County's local rules. As noted above, Charging Party fails to allege facts that
demonstrate the County violated its local rules by refusing to process Charging Party's request
to modify the Healthcare Unit. To the extent Charging Party is contending that when it comes
to creating a bargaining unit for professional employees, an employee organization does not
have to comply with local rules regarding procedures for modifying or establishing a
bargaining unit, Charging Party fails to state any facts or legal authority to support this claim.
1 While Alameda County Assistant Public Defenders Association
v.
County
of
Alameda, supra, 33 Cal.App.3d 825, established the right to separate representation for
professional employees, the case does not stand for the proposition that an employee
organization does not have to comply with the local rules adopted by a public agency for
modifying an established bargaining unit, when seeking to establish a separate bargaining unit
for professional employees under section 3507.3.

LA-CE-734-M
August 14, 2012
Page
10
(See Modesto Irrigation District (2005) PERB Decision No. 1768-M, at pp. 5- 7 [where PERB
upheld the dismissal
of
an unfair practice charge filed by employees over the irrigation
district's denial of their unit modification petitions, one
of
which sought to have certain
professional employees represented in a separate bargaining unit. The Board upheld the
dismissal finding the petitions were not filed by an employee organization, which was required
under the irrigation district's local rules to file a unit modification petition].)
Here, the facts demonstrate that Charging Party was not an employee organization verified by
the County under ERR section 7 at the time it filed its request to modify the Healthcare Unit,
which is a prerequisite for filing a modification request under section
9.
4. 	Violation
of
Local Rules Concerning Certification
of
Recognized Employee
Organization and Decertification Procedure.
The Charge also alleges the County violated sections 10 and
11
of
the ERR. 	Section 10
contains procedures for certifying an exclusively recognized employee organization in the
County. 	Section
11
contains decertification procedures. There are no allegations in the
Charge as to how the County violated those sections. To the extent Charging Party's
allegations regarding the County's violation
of
those local rules are contained in its exhibits
attached
to
the Charge, this is insufficient to meet Charging Party's burden to state facts
sufficient to state a prima facie case. PERB Regulation 32615(a)(5) requires that a charge
contain a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice," in the charge itself and not just in attachments to the charge. (Sacramento City
Teachers Association (2008) PERB Decision No. 1959.)
Reasonableness
of
Local Rules
Where a local rule adopted by a public agency conflicts with the MMBA and its fundamental
purposes, enforcement of such a rule will be denied. (International Brotherhood
of
Electrical
Workersv.
CityofGridley(l983)34Cal.3d
191, 196-206.)
TheCityofGridleycourtnoted
that the scope of authority to supplement provisions
of
the statute must be "consistent with,
and effectuate the declared purposes of, the statute as a whole." (Id at
p.
202, citation
omitted.) The burden
of
proving unreasonableness is on the party challenging the rule. 	(City
& County ofSan Francisco (2009) PERB Decision No. 2041-M; City & County
of
San Francisco (2007) PERB Decision No. 1890-M.) When examining whether a local agency
rule adopted pursuant to MMBA section 3507, subdivision (a) is reasonable, PERB's inquiry is
not whether a different rule would be more reasonable or whether the rule is reasonable when
measured against an arbitrary standard. Rather, the question is whether the rule "is consistent
with and effectuates the purposes of the express provisions
of
the MMBA." (City
ofSan
Rafael (2004) PERB Decision No. 1698-M, citing International Brotherhood
of
Electrical
Workers, Local 1245
v.
City
o_f
Gridley, supra, 34 Cal.3d 191.)
The Charge does not contend or allege facts demonstrating that the County's local rules are
unreasonable. While Charging Party does state the question regarding how long it takes to
process a petition or request is not addressed in the local rules, Charging Party fails to explain

LA-CE-734-M
August 14, 2012
Page
11
or allege facts how this constitutes an unreasonable rule. 	Further, in County
of
Orange,
supra,
PERB Decision No. 2138-M, the Administrative Law Judge, in construing ERR section 9,
which is at issue in this charge, found that it was a reasonable local rule which allows for
severance
of
classifications from an established unit. (Id. at p. 14.) The Board noted in that
case that "ERR section 9.A and PERB's MMBA severance regulations are largely identical
and serve a similar purpose, namely to reconfigure an existing unit." (Id. at p. 10.) Thus,
Charging Party fails to allege facts demonstrating the unreasonableness
of
any local rule.
Interference
While not alleged in the charge, a statement
of
a prima facie case by Charging Party that the
County violated its local rules in refusing to process, and allow an appeal of, Charging
Party's
request to modify the unit, would necessarily state a prima facie case as derivative violations
that the County interfered with Charging Party's right to represent its members in violation
of
section 3503, and interfered with the rights
of
County employees in violation
of
section 3506.
As addressed above, Charging Party fails to allege sufficient facts to demonstrate the County
violated its local rules and the MMBA as alleged in the Charge. Thus, Charging Party fails to
state a prima facie case that the County interfered with Charging Party's and County
employees' protected rights under the MMBA.
11
For these reasons the charge, as presently written, does not state a prima facie case.	
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof of
service must be filed with
11 In Eastside Union School District (1984) PERB Decision 	. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

LA-CE-734-M
August 14, 2012
Page 12
PERB.
	If
an amended charge or withdrawal is not filed on or before August 24, 2012,
12
PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
~~
Ronald Pearson
Senior Regional Attorney
RP
2 A document is "filed" on the date the document is actually received by PERB,
including
if
transmitted via facsimile. 	(PERB Regulation 3213 5.)