San Bernardino County Superior Court (PERB 2392C)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party, 	Case No. LA-CE-43-C
v . 	PERB Decision No. 2392-C
SAN BERNARDINO COUNTY SUPERIOR 	September 26, 2014
COURT,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Jacob J. White, Attorney, for Service
Employees International Union, Local 721; Atkinson, Andelson, Loya, Ruud & Romo by
Nate J. Kowalski and Jay G. Trinnaman, Attorneys, for San Bernardino County Superior
Court.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Service Employees International Union, Local 721
(SEIU) to a proposed decision (attached) by a PERB administrative law judge (ALI)
dismissing the PERB complaint and underlying unfair practice charge. The complaint alleged
that the San Bernardino County Superior Court (Court) violated the Trial Court Employment
Protection and Governance Act (Trial Court Act)' by denying as untimely SEIU's petition to
decertify the incumbent exclusive representative of the support services unit, the
San Bernardino Public Employees Association (Association or SBPEA). The complaint
further alleged that the Court relied on its decertification petition window period local rule,
which local rule was contrary to the Trial Court Act, and that by this conduct the Court
The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
v.
SAN BERNARDINO COUNTY SUPERIOR
COURT,
Respondent.
Case No. LA-CE-43-C
PERB Decision No. 2392-C
September 26, 2014
Appearances: Weinberg, Roger & Rosenfeld by Jacob
J.
White, Attorney, for Service
Employees International Union, Local 721; Atkinson, Andelson, Loya, Ruud & Romo by
Nate J. Kowalski and Jay G. Trinnaman, Attorneys, for San Bernardino County Superior
Court.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Service Employees International Union, Local 721
(SEIU) to a proposed decision (attached) by a PERB administrative law judge (ALJ)
dismissing the PERB complaint and underlying unfair practice charge. The complaint alleged
that the San Bernardino County Superior Court (Court) violated the Trial Court Employment
Protection and Governance Act (Trial Court Act)1 by denying as untimely SEIU's petition to
decertify the incumbent exclusive representative
of
the support services unit, the
San Bernardino Public Employees Association (Association or SBPEA). The complaint
further alleged that the Court relied on its decertification petition window period local rule,
which local rule was contrary to.the Trial Court Act, and that by this conduct the Court
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.

violated the Trial Court Act sections 71631, 71633, 71635.1, 71636, and 71639.1(c), and
PERB Regulation 32606(a), (b) and (f).2
The Board has reviewed the entire record in the case. The ALJ's factual findings are
supported by the record, and we adopt them as the findings of the Board itself, except as noted
below. The ALJ's conclusions with regard to the Court's local rules for the decertification
petition window period filings are in accordance with relevant law, and we adopt them except
as noted below.
PROCEDURAL HISTORY
On September 30, 2013, SEIU filed an unfair practice charge with PERB alleging that
the Court's local rule regarding the window period for filing a decertification petition violated
the Trial Court Act. On October 29, 2013, the Court submitted a response to SEIU's charge.
On November 4, 2013, PERB's Office of the General Counsel issued a complaint alleging that
the Court violated Trial Court Act sections 71631, 71633, 71635.1, 71636, and 71639.1(c), and
PERB Regulation 32606(a), (b) and (f) when it denied SEIU's decertification petition on the
basis that it did not comply with section (j) of the Court's Employee Relations Rules (ERR).
On November 6, 2013, the Court filed a supplemental position statement. On
November 15, 2013, the Court filed its answer, admitting the factual allegations of the
complaint, but denying that it violated the Trial Court Act or PERB regulations by so doing. In
its answer, the Court also asserted several affirmative defenses. On December 4, 2013, an
informal settlement conference was held, but the matter was not resolved. A formal hearing
was scheduled for March 11, 2014.
On January 23, 2014, the Court filed a motion for summary judgment. On February 10,
2014, SEIU filed its opposition to the Court's motion and a cross-motion for summary
2PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
violated the Trial Court Act sections 71631, 71633, 71635.1, 71636, and 71639.l(c), and
PERB Regulation 32606(a), (b) and (f).2
The Board has reviewed the entire record
in
the case. The ALJ' s factual findings are
supported by the record, and we adopt them as the findings
of
the Board itself, except as noted
below. The
ALJ's
conclusions with regard to the Court's local rules for the decertification
petition window period filings are in accordance with relevant law, and we adopt them except
as noted below.
PROCEDURAL HISTORY
On September 30, 2013, SEIU filed an unfair practice charge with PERB alleging that
the Court's local rule regarding the window period for filing a decertification petition violated
the Trial Court Act. 	On October 29, 2013, the Court submitted aresponse to SEIU's charge.
On November 4, 2013, PERB's Office
of
the General Counsel issued a complaint alleging that
the Court violated Trial Court Act sections 71631, 71633, 71635.1, 71636, and 71639.l(c), and
PERB Regulation 32606(a), (b) and (f) when it denied SEIU's decertification petition on the
basis that it did not comply with section
G)
of
the Court's Employee Relations Rules (ERR).
On November 6, 2013, the Court filed a supplemental position statement. On
November 15, 2013, the Court filed its answer, admitting the factual allegations
of
the
complaint, but denying that it violated the Trial Court Act or PERB regulations by so doing. In
its answer, the Court also asserted several affirmative defenses. 	On December 4, 2013, an
informal settlement conference was held, but the matter was not resolved. A formal hearing
was scheduled for March 11, 2014.
On January 23, 2014, the Court filed a motion for summary judgment. On February 10,
2014, SEIU filed its opposition to the Court's motion and a cross-motion for summary
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

judgment. On February 20, 2014, the Court filed a reply in support of its motion for summary
judgment. Also on February 20, 2014, the ALJ allowed SEIU the opportunity to file a surreply
to the Court's reply. On February 28, 2014, SEIU filed its surreply which was labeled as a
"reply memorandum" in support of its own motion for summary judgment. On February 28,
2014, the ALJ deemed the matter submitted on the record because neither party objected to the
exhibits or declarations of the other party, requested to cross-examine the other party's
declarants or requested to present additional evidence.
FACTUAL BACKGROUND
The Court is a "trial court" within the meaning of Trial Court Act section 71601(k) and
PERB Regulation 32033(a). The Association is the "recognized employee organization" and
exclusive representative of the support services unit within the meaning of Trial Court Act
section 71601(h) and PERB Regulation 32033(b). SEIU is an "employee organization" within
the meaning of Trial Court Act section 71601(b)(2). (Proposed Dec., p. 3.)
Pursuant to Trial Court Act sections 71636 and 71636.3, the Court adopted its ERR for
the administration of employer-employee relations. Section (j) under the heading
"Representation Proceedings" addresses the window period for filing a petition for
certification, decertification or modification of an "authorized employee representative." The
pertinent provisions of section (i) states:
PERB Regulation 32207 states:
The parties may submit stipulated facts where appropriate to the
Board agent. No hearing shall be required unless the parties
dispute the facts in the case.
* The language of section (j) does not precisely mirror the language of the Trial Court
Act. But it seems evident and was undisputed that "recognized employee organization" and
"authorized employee representative" are synonymous. Section (j) also contains a third
provision, which is inapplicable here, for filing petitions when the memorandum of
understanding (MOU) has expired and has not been continued by the terms of the MOU.
judgment. On February 20, 2014, the Court filed a reply in support
of
its motion for summary
judgment. Also on February 20, 2014, the ALJ allowed SEID the opportunity to file a surreply
to the Court's reply. 	On February 28, 2014, SEID filed its surreply which was labeled
as
a
"reply memorandum" in support of its own motion for summary judgment. On February 28,
2014, the ALJ deemed the matter submitted on the record because neither party objected to the
exhibits or declarations
of
the other party, requested to cross-examine the other party's
declarants or requested to present additional evidence.3
FACTUAL BACKGROUND
The Court is a "trial court" within the meaning
of
Trial Court Act section 71601(k) and
PERB Regulation 32033(a). The Association is the "recognized employee organization"
exclusive representative
of
the support services unit within the meaning
of
Trial Court Act
section 71601(h) and PERB Regulation 32033(b). SEID is an "employee organization" within
the meaning
of
Trial Court Act section 7160l(b)(2). (Proposed Dec., p. 3.)
and
Pursuant to Trial Court Act sections 71636 and 71636.3, the Court adopted its ERR for
the administration
of
employer-employee relations. Section (j) under the heading
"Representation Proceedings" addresses the window period for filing a petition for
certification, decertification or modification
of
an "authorized employee representative. "4 The
pertinent provisions
of
section (j) states:
3 PERB Regulation 32207 states:
The parties may submit stipulated facts where appropriate to the
Board agent. No hearing shall be required unless the parties
dispute the facts in the case.
4 The language
of
section
G)
does not precisely mirror the language of the Trial Court
Act. But it seems evident and was undisputed that "recognized employee organization" and
"authorized employee representative" are synonymous. Section
G)
also contains a third
provision, which is inapplicable here, for filing petitions when the memorandum of
understanding (MOU) has expired and has not been continued by the terms of the MOU.
3

(i) TIMING OF PETITIONS: A petition for certification,
decertification, or modification of an authorized employee
representation unit may only be filed during:
(1) A period beginning not earlier than two hundred forty (240)
days and ending not later than two hundred ten (210) days before
the expiration date of any Memorandum of Understanding
covering the affected unit(s).
(2) I In the event any Memorandum
of
Understanding covering the
affected unit(s) is continued for one (1) year by the terms
of
said
Memorandum, a Petition for certification, decertification or
modification
of
an authorized employee representation unit may
only be filed during a period beginning not earlier than two
hundred forty (240) days and ending not later thantwo hundred
ten (210) days before the anniversary date
of
the agreement.
n the event any Memorandum of Understanding covering the
affected unit(s) is continued for one (1) year by the terms of said
Memorandum, a Petition for certification, decertification or
modification of an authorized employee representation unit may
only be filed during a period beginning not earlier than two
hundred forty (240) days and ending not later than two hundred
ten (210) days before the anniversary date of the agreement.
(Proposed Dec., pp. 3-4, emphasis in original.)
On December 1, 2011, the Court and the Association entered into an MOU for the
employees in the support services unit which expired by its terms on November 30, 2012.
Article 62(a) of the MOU provided, in pertinent part:
The term of this Memorandum of Understanding shall commence
at 12:01 a.m. December 1, 2011 and this Memorandum of
Understanding shall expire and otherwise be fully terminated at
12:00 a.m. (midnight) of November 30, 2012. If a successor
Memorandum of Understanding has not been reached by 12:00
a.m. (midnight) of November 30, 2012, the terms and conditions
of this Memorandum of Understanding shall be extended one
(1) year or until a successor Memorandum of Understanding is
adopted, whichever occurs sooner.
Since the Court and the Association did not reach an agreement by midnight on November 30,
2012, the terms and conditions of the MOU were extended under Article 62(a) for one year or
until a successor MOU was negotiated. (Proposed Dec., p. 5, emphasis in original.)
Under the terms of the MOU entered into on December 1, 2011, and extended by
Article 62(a), there were two 30-day window periods during which time a petition for
decertification of the Association could be filed under section (j) of the ERR. The first
window period occurred between April 4 and May 4, 2012, under ERR section ()(1) which
G)
TIMING OF PETITIONS: A petition for certification,
decertification, or modification
of
an
authorized employee
representation unit may only
be
filed during:
(1) A period beginning not earlier than two hundred forty (240)
days and ending not later than two hundred ten (210) days before
the expiration date
of
any Memorandum
of
Understanding
covering the affected unit(s).
(2)
(Proposed Dec., pp. 3-4, emphasis in original.)
On December 1, 2011, the Court and the Association entered into anMOU for the
employees in the support services unit which expired by its terms
on
November 30, 2012.
Article 62(a)
of
the MOU provided, in pertinent part:
The term
of
this Memorandum
of
Understanding shall commence
at 12:01 a.m. December 1, 2011 and this Memorandum
of
Understanding shall expire and otherwise be fully terminated at
12:00 a.m. (midnight)
of
November 30, 2012. If a successor
Memorandum
of
Understanding has not been reached by 12:00
a.m. (midnight)
of
November 30, 2012, the terms and conditions
of
this Memorandum
of
Understanding shall be extended one
(1) year or until a successor Memorandum
of
Understanding is
adopted, whichever occurs sooner.
Since the Court and the Association did not reach an agreement by midnight on November 30,
2012, the terms and conditions
of
the MOU were extended under Article 62(a) for one year or
until a successor MOU was negotiated. (Proposed Dec., p. 5, emphasis in original.)
Under the terms
of
the MOU entered into on December 1, 2011, and extended by
Article 62(a), there were two 30-day window periods during which time a petition for
decertification
of
the Association could be filed under section
G)
of
the ERR. The first
window period occurred between April 4 and May 4, 2012, under ERR section G)(l) which
4

pertains to an MOU which is currently in effect. The second window period occurred between
April 4, and May 4, 2013, under ERR section ()(2) which pertains to one-year extensions of
expiring MOUs. (Proposed Dec., p. 5.) No decertification petitions were filed during either of
these two window periods. (Proposed Dec., p. 10.)
On August 30, 2013, the Court and the Association reached an agreement on a
successor MOU with a retroactive effective date of December 1, 2012, and an expiration date
of June 30, 2015." Under ERR section (i)(1) the window period for the latest MOU will occur
between November 2 and December 2, 2014. (Proposed Dec., p. 5.)
On September 9, 2013, SEIU filed a petition to decertify the Association and become
the exclusive representative for the support services unit. On September 17, 2013, Court
Executive Officer Stephen H. Nash (Nash) rejected SEIU's petition on the ground that it was
untimely and the Court could not act upon it. According to Nash:
[Pursuant to the terms of the subject contract with SBPEA, the
contract was extended to 12:00 midnight on November 30, 2013.
Accordingly, under section (j)(2), a decertification petition must
be filed "during a period beginning not earlier than two hundred
forty (240) days and ending not later than two hundred ten (210)
days before the first anniversary date of the agreement."
November 30, 2013, would be the first anniversary date of the
one (1) year extension and therefore we calculate that a
decertification petition should have been filed between April 5,
2013 and May 4, 2013.
(Proposed Dec., p. 6.)
Although the Court states that the MOU was ratified on August 30, 2013, the MOU
was subject to approval by the Court Executive Committee and such approval was not given
until November 12, 2013.
pertains to an MOU which is currently in effect. The second window period occurred between
April 4, and May 4, 2013, under ERR section G)(2) which pertains to one-year extensions
of
expiring MOUs. (Proposed Dec., p. 5.) No decertification petitions were filed during either
of
these two window periods. (Proposed Dec., p. 10.)
On August 30, 2013, the Court and the Association reached an agreement on a
successor MOU with a retroactive effective date ,of December
1,
2012, and an expiration date
of
June 30, 2015.5 Under ERR section G)(l) the window period for the latest MOU will occur
between November 2 and December 2, 2014. (Proposed Dec., p. 5.)
On September 9, 2013, SEIU filed a petition to decertify the Association and become
the exclusive representative for the support services unit. On September 17, 2013, Court
Executive Officer.Stephen H. Nash (Nash) rejected SEIU's petition on the ground that it was
untimely and the Court could not act upon it. According to Nash:
[P]ursuant to the terms
of
the subject contract with SBPEA, the
contract was extended to 12:00 midnight on November 30, 2013.
Accordingly, under section G)(2), a decertification petition must
be filed "during a period beginning not earlier than two hundred
forty (240) days and ending not later than two hundred ten (210)
days before the first anniversary date
of
the agreement.''
November 30, 2013, would be the first anniversary date
of
the
one (1) year extension and therefore we calculate that a
decertification petition should have been filed between April 5,
2013 and May 4, 2013.
(Proposed Dec., p. 6.)
5 Although the Court states that the MOU was ratified on August 30, 2013, the MOU
was subject to approval by the Court Executive Committee and such approval was not given
until November 12, 2013.
5

PROPOSED DECISION
The ALJ noted that the Trial Court Act allows trial courts to adopt reasonable rules and
regulations for the administration of employer-employee relations in much the same manner as
the Meyer-Milias-Brown Act (MMBA) allows local government agencies to do so. (Proposed
Dec., p. 9, citing Tehama County Superior Court (2008) PERB Decision No. 1957-C.) After
finding that Trial Court Act sections 71630, 71631, 71636, 71636.3 and 71639.1 were similar
to MMBA sections 3500, 3502, 3507, 3507.1, and 3509, the ALJ determined that MMBA
precedent should therefore be applied in this matter to determine whether a local rule was
unreasonable. (Proposed Dec., p. 9.)
The ALJ determined that the relevant inquiry was "whether a disputed local rule or its
application is consistent with and effectuates the purposes of the express provisions of the Trial
Court Act." (Proposed Dec., p. 9.) The ALJ determined that the ERR and the MOU extension
language, including the possibility that a successor agreement could be reached during the
period an MOU extension was in effect, provided for window periods for filing decertification
petitions and none of those window periods was ever eliminated or shortened. The ALJ
concluded that the ERR did not violate the employees' right to choose an employee
organization to represent them before the employer, and that SEIU failed to file a
decertification petition during the window period provided by the ERR. The ALJ therefore
dismissed the complaint and SEIU's charge.
EXCEPTIONS
SEIU takes four (4) exceptions to the ALJ's proposed decision. SEIU maintains that
the ALJ erred by failing to determine: (1) whether the Court's failure to oppose SEIU's
motion for summary judgment precluded granting the Court's motion for summary judgment;
The MMBA is codified at Government Code section 3500 et seq.
PROPOSED DECISION
The ALJ noted that the Trial Court Act allows trial courts to adopt reasonable rules and
regulations for the administration
of
employer-employee relations in much the same manner as
the Meyer-Milias-Brown Act (MMBA)6 allows local government agencies to do so. (Proposed
Dec., p.
9,
citing Tehama County Superior Court (2008) PERB Decision No. 1957-C.) After
finding that Trial Court Act sections 71630, 71631, 71636, 71636.3 and 71639.1 were similar
to MMBA sections 3500, 3502, 3507, 3507.1, and 3509, the ALJ determined that MMBA
precedent should therefore be applied in this matter to determine whether a local rule was
unreasonable. 	(Proposed Dec., p. 9.)
The ALJ determined that the relevant inquiry was "whether a disputed local rule
or
its
application is consistent with and effectuates the purposes
of
the express provisions
of
the Trial
Court Act." (Proposed Dec., p. 9.) The ALJ determined that the ERR and the MOU extension
language, including the possibility that a successor agreement could be reached during the
period an MOU extension was in effect, provided for window periods for filing decertification
petitions and none
of
those window periods was ever eliminated or shortened. The ALJ
concluded that the ERR did not violate the employees' right to choose an employee
organization to represent them before the employer, and that SEID failed to file a
decertification petition during the window period provided by the ERR. The ALJ therefore
dismissed the complaint and SEID' s charge.
EXCEPTIONS
SEID takes four (4) exceptions to the ALJ' s proposed decision. SEID maintains that
the ALJ erred by failing to determine: (1) whether the Court's failure to oppose SEIU's
motion for summary judgment precluded granting the Court's motion for summary judgment;
6 The MMBA is codified at Government Code section 3500 et seq.
6

(2) whether the 2011-2012 MOU between the Court and the Association was a contract of
indefinite duration which could not serve as a bar to SEIU's decertification petition;
(3) whether the Court's ERR was facially unlawful; and (4) whether PERB's regulations
should "fill the gap" in the absence of a local rule governing the subject. In addition, SEIU
requests oral argument before the Board' and asks the Board to take official notice of the
record in this case and of an e-mail exchange between the ALJ and the attorneys for both
parties in this matter.
The Court urges us to affirm the proposed decision and argues that its lack of separate
opposition to SEIU's motion for summary judgment is not fatal to its own motion for summary
judgment."
DISCUSSION
Procedural Posture
While the ALJ states that he will rule on the parties' motion and cross-motion for
summary judgment, there is no explicit ruling on these motions in the proposed decision. (See
Proposed Dec., p. 3.) While there have been some exceptions, "PERB does not generally
SEIU's request for oral argument is denied. The Board historically denies requests for
oral argument when an adequate record has been prepared, the parties have had an opportunity
to present briefs and have availed themselves of that opportunity, and the issues before the
Board are sufficiently clear to make oral argument unnecessary. (Los Angeles Community
College District (2009) PERB Decision No. 2059; Monterey County Office of Education
(1991) PERB Decision No. 913.)
The Board grants SEIU's request to take official notice of its own record in this
matter. (San Ysidro School District (1997) PERB Decision No. 1198, p. 3 [it is well-settled
that the Board may take official notice of its own records].)
" The Court's response to SEIU's statement of exceptions was deemed to be untimely
filed by PERB's Appeals Assistant. The Court appealed that decision and the Board concluded
that the Court's response was, in fact, timely filed. (San Bernardino Superior Court (2014)
PERB Order No. Ad-416-C.)
10 See, e.g., San Diego Unified School District (1987) PERB Decision No. 610.
(2) whether the 2011-2012 MOU between the Court and the Association was a contract
of
indefinite duration which could not serve as a bar to
SEIU's
decertification petition;
(3) whether the Court's
ERR
was facially unlawful; and (4) whether
PERB's
regulations
should "fill the gap" in the absence
of
a local rule governing the subject. In addition, SEIU
requests oral argument before the Board7 and asks the Board to take official notice
of
the
record
in
this case and
of
an
e-mail exchange between the ALJ and the attorneys for both
parties
in
this matter.8
The Court urges us to affirm the proposed decision and argues that its lack
of
separate
opposition to
SEIU's
motion for summary judgment is not fatal to its
own
motion for summary
judgment.9
DISCUSSION
Procedural Posture
While the ALJ states that he will rule on the parties' motion and cross-motion for
summary judgment, there is no explicit ruling on these motions in the proposed decision. (See
Proposed Dec., p. 3.) While there have been some exceptions,
10
PERB does not generally
7
SEIU' s request for oral argument is denied. The Board historically denies requests for
oral argument when an adequate record has been prepared, the parties have had an opportunity
to present briefs and have availed themselves
of
that opportunity, and the issues before the
Board are sufficiently clear to make oral argument unnecessary. (Los Angeles Community
College District (2009) PERB Decision No. 2059; Monterey County Office
of
Education
(1991) PERB Decision No. 913.)
8 The Board grants SEIU' s request to take official notice
of
its own record in this
matter. (San Ysidro School District (1997) PERB Decision No. 1198, p. 3 [it is well-settled
that the Board may take official notice
of
its own records].)
9 The Court's response to SEIU's statement
of
exceptions was deemed to be untimely
filed by PERB's Appeals Assistant. The Court appealed that decision and the Board concluded
that the Court's response was, in fact, timely filed. (San Bernardino Superior Court (2014)
PERB Order No. Ad-416-C.)
10
See, e.g., San Diego Unified School District (1987) PERB Decision No. 610.
7

follow the summary judgment procedure utilized in California state courts. When facts are not
in dispute, as they were not in this case, a matter may be deemed submitted on the record based
on stipulated facts, briefs and responsive arguments. (PERB Reg. 32207.) Although both
parties have treated the proposed decision as granting a motion for summary judgment in favor
of the Court, the proposed decision suggests that the ALJ, in fact, treated this matter as one
submitted pursuant to PERB Regulation 32207. (Proposed Dec., p. 3.) In addition, in e-mail
correspondence between the ALJ and attorneys for both parties, the ALJ suggested that the
matter be treated as a matter submitted without a formal hearing. We shall, therefore, treat this
as a matter submitted on the record without a hearing pursuant to PERB Regulation 32207
rather than as a motion and cross-motion for summary judgment.
SEIU's First Exception: Whether failure to oppose a motion for summary judgment requires
granting that motion.
SEIU's first exception claims that the ALJ erred by failing to determine whether the
Court's refusal to file an opposition to SEIU's cross-motion for summary judgment precluded
the ALJ from granting the Court's own motion for summary judgment. Since we are not
treating this matter as a motion or cross-motion for summary judgment pursuant to California
Code of Civil Procedure 437c, SEIU's first exception is denied as inapplicable to this case."
IEven if this matter were treated as a motion for summary judgment, a moving party
bears the burden of proving that no disputed issue of fact exists and that it is entitled to
judgment as a matter of law. SEIU has cited no legal authority or precedent for the proposition
that an unopposed motion for summary judgment is entitled to a default judgment in the
absence of opposition, regardless of the merit of the motion. Moreover, the Court's filings in
its own motion for summary judgment address and dispute the contentions in SEIU's cross-
motion. Thus, while the Court did not file a pleading directly responsive to SEIU's cross-
motion, the Court did dispute SEIU's cross-motion in its own pleadings.
8
follow the summary judgment procedure utilized in California state courts. When facts are not
in dispute, as they were not in this case, a matter may be deemed submitted on the record based
on stipulated facts, briefs and responsive arguments. (PERB Reg. 32207.) Although both
parties have treated the proposed decision as granting a motion for summary judgment in favor
of
the Court, the proposed decision suggests that the ALJ, in fact, treated this matter as one
submitted pursuant to PERB Regulation 32207. (Proposed Dec.,
p.
3.) In addition, in e-mail
correspondence between the ALJ and attorneys for both parties, the ALJ suggested that the
matter be treated as a matter submitted without a formal hearing. We shall, therefore, treat this
as a matter submitted on the record without a hearing pursuant to PERB Regulation 32207
rather than as a motion and cross-motion for summary judgment.
SEIU' s First Exception: Whether failure to oppose a motion for summary judgment requires
granting that motion.
SEIU's first exception claims that the ALJ erred by failing to determine whether the
Court's refusal to file an opposition to SEIU's cross-motion for summary judgment precluded
the ALJ from granting the Court's own motion for summaryjudgment. Since we are not
treating this matter as a motion or cross-motion for summary judgment pursuant to California
Code
of
Civil Procedure 437c, SEIU's first exception is denied as inapplicable to this case.
11
11
Even if this matter were treated as a motion for summary judgment, a moving party
bears the burden of proving that no disputed issue of fact exists and that it is entitled to
judgment as a matter of law. SEIU has cited no legal authority or precedent for the proposition
that an unopposed motion for summary judgment is entitled to a default judgment in the
absence of opposition, regardless of the merit of the motion. Moreover, the Court's filings in
its own motion for summary judgment address and dispute the contentions in SEIU' s cross-
motion. Thus, while the Court did not file a pleading directly responsive to SEIU's cross-
motion, the Court did dispute SEIU's cross-motion in its own pleadings.
8

SEIU's Second Exception: Whether the 2011-2012 MOU was a contract of "indefinite
duration."
In its second exception, SEIU contends that the ALJ erred in failing to determine
whether the 2011-2012 MOU between the Court and the Association was a contract of
indefinite duration and thus could not serve as a bar to SEIU's decertification petition.
While the ALJ did not explicitly rule on whether the 2011-2012 MOU was a contract of
indefinite duration, clearly he rejected SEIU's contention that it was. The ALJ distinguished
National Labor Relations Board (NLRB) decisions" cited by SEIU wherein employers and
incumbent unions agreed to short-term extensions of collective bargaining agreements which
had the effect of eliminating part of a decertification window period. The ALJ determined that
the extension language in Article 62(a) of the MOU, which addressed the possibility that the
parties could negotiate a successor MOU before the expiration of the MOU extension did not
eliminate the decertification window period established by ERR section ()(2). The ALJ
determined that ERR section (i)(2) established a "time-certain opportunity to exercise a basic,
but limited right" to decertify the incumbent union. (Proposed Dec., p. 11.)
We agree with the ALJ that the extension language of Article 62(a), which provided
that the extension would expire on November 30, 2012, or when the parties reached a
successor agreement if that occurred sooner, did not render the 2011-2012 MOU or its
extension a contract of indefinite duration. The 2011-2012 MOU had a definite expiration date
and discernible 30-day window period for the filing of a decertification petition. The
contractually agreed-to extension to the 2011-2012 MOU, in turn, also had a definite
expiration date upon which a discernible window period was established for the filing of a
decertification petition. While it is conceivable that the Court and the Association could have
12 Crompton Company, Inc. (1982) 260 NLRB 417; Frye & Smith, Lid. (1965) 151
NLRB 49; and White Provision Company (1956) 116 NLRB 1552.
SEIU's Second Exception: 	Whether the 2011-2012 MOU was a contract
of
"indefinite
duration."
In its second exception, SEID contends that the ALJ erred in failing to determine
whether the 2011-2012 MOU between the Court and the Association was a contract
of
indefinite duration and thus could not serve as a bar to SEIU's decertification petition.
While the ALJ did not explicitly rule on whether the 2011-2012 MOU was a contract
of
indefinite duration, clearly he rejected SEIU's contention that it was. The ALJ distinguished
National Labor Relations Board (NLRB) decisions12
cited by SEIU wherein employers and
incumbent unions agreed to short-term extensions
of
collective bargaining agreements which
had the effect
of
eliminating part
of
a decertification window period. The ALJ determined that
the extension language in Article 62(a)
of
the MOU, which addressed the possibility that the
parties could negotiate a successor MOU before the expiration
of
the MOU extension did not
eliminate the decertification window period established by ERR section G)(2). The ALJ
determined that ERR section G)(2) established a "time-certain opportunity to exercise a basic,
but limited right" to decertify the incumbent union. (Proposed Dec., p. 11.)
We agree with the ALJ that the extension language
of
Article 62(a), which provided
that the extension would expire on November 30, 2012, or when the parties reached a
successor agreement
if
that occurred sooner, did not render the 2011-2012 MOU or its
extension a contract
of
indefinite duration. The 2011-2012 MOU had a definite expiration
da{e
and discernible 30-day window period for the filing
of
a decertification petition. The
contractually agreed-to extension to the 2011-2012 MOU, in turn, also had a definite
expiration date upon which a discernible window period was established for the filing of a
decertification petition. While it is conceivable that the Court and the Association could have
12
Crompton Company, Inc. (1982) 260 NLRB 417; Frye & Smith, Ltd. (1965) 151
NLRB 49; and White Provision Company (1956) 116 NLRB 1552.
9

entered into a successor MOU at an earlier date and eliminated all or part of the decertification
window period under ERR (i)(2), that did not occur, and thus, on the present facts, we do not
reach that question. We therefore conclude that SEIU's second exception lacks merit.
SEIU's Third Exception: Whether the ERR was facially "unreasonable."
In its third exception, SEIU contends that the ALJ erred by failing to determine whether
certain provisions in the Court's ERR are facially invalid and therefore "unreasonable."
(County of Imperial (2007) PERB Decision No. 1916-M.) SEIU urges that ERR section (i)(2)
is facially invalid, because the term "anniversary date" is vague and not defined in the ERR
and the language of section (j)(2) requires that a decertification petition be filed before the
MOU is automatically extended. In addition, SEIU argues that the Court's requirement that
employee organizations seeking to file a decertification petition must provide adequate proof
of support dated within thirty (30) days of the petition is unlawful.
The ALJ rejected SEIU's argument regarding the alleged vagueness of "first
anniversary date" in section (j)(2). Relying on the rule of statutory construction that mischief
or absurdity is to be avoided, the ALJ determined that the only logical application of "first
anniversary date" in section (j)(2) would be to the first anniversary of the date on which the
MOU was extended. We agree with the ALJ and also note that both the ERR and Article 62(a)
clearly establish that MOUs are extended for a maximum period of one year and it would be
reasonable to calculate the petition window period from the expiration date or first anniversary
date which are, in this instance, coterminous. We conclude therefore that SEIU's contention
lacks merit.
While the ALJ did not address SEIU's contention that section (i)(2) requires that a
decertification petition be filed before the MOU is automatically extended, SEIU did not
10
entered into a successor MOU at an earlier date and eliminated all or part
of
the decertification
window period under ERR 0)(2), that did not occur, and thus, on the present facts, we do not
reach that question. We therefore conclude that SEIU's second exception lacks.merit.
SEIU's Third Exception: Whether the ERR was facially "unreasonable."
In its third exception, SEID contends that the ALJ erred by failing to determine whether
certain provisions in the Court's ERR are facially invalid and therefore "unreasonable."
(County
of
Imperial (2007) PERB Decision No. 1916-M.) SEID urges that ERR section G)(2)
is facially invalid, because the term "anniversary date" is vague and not defined in the ERR
and the language
of
section G)(2) requires that a decertification petition be filed before the
MOU is automatically extended. In addition, SEIU argues that the Court's requirement that
employee organizations seeking to file a decertification petition must provide adequate proof
of
support dated within thirty (30) days
of
the petition is unlawful.
The ALJ rejected SEIU's argument regarding the alleged vagueness
of
"first
anniversary date" in section (j)(2). Relying on the rule
of
statutory construction that mischief
or absurdity is to be avoided, the ALJ determined that the only logical application
of
"first
anniversary date" in section (j)(2) would be to the first anniversary
of
the date on which the
MOU was extended. We agree with the ALJ and also note that both the ERR and Article 62(a)
clearly establish that MOUs are extended for a maximum period
of
one year and it would be
reasonable to calculate the petition window period from the expiration date or first anniversary
date which are, in this instance, coterminous. We conclude therefore that SEIU's contention
lacks merit.
While the ALJ did not address SEIU's contention that section G)(2) requires that a
decertification petition be filed before the MOU is automatically extended, SEID did not
10

explain how such an anomaly was necessitated by the language of section (j)(2), and we do not
find that to be the case. Accordingly, we conclude that this contention also lacks merit.
We do not reach the issue of the requirement under the ERR that a decertification
petition be accompanied by adequate proof of support dated within thirty (30) days. SEIU's
decertification petition was not denied on the basis that its proof of support was insufficient; it
was rejected solely on the ground that the petition itself was untimely filed. Thus, SEIU's
contention concerning the 30-day rule need not be further addressed.
SEIU's Fourth Exception: Whether PERB's regulation should "fill the gap" in the County's
In its final exception, SEIU contends that the ALJ failed to address whether PERB's
regulations should "fill the gap" in the County's ERR. As the ALJ stated:
The inquiry does not concern whether PERB would find a
different local rule or different application of a local rule more
reasonable, or whether the existing local rule or its application is
unreasonable measured against an arbitrary standard. Instead, the
inquiry i
consistent with and effectuates the purposes of the express
provisions of the Trial Court Act.
(Proposed Dec., p. 9.) Since the ALJ concluded that ERR section (j) was not unreasonable nor
was it unreasonably applied to SEIU, he had no occasion to determine whether PERB's
regulations should "fill the gap" in the County's ERR. We conclude with the ALJ that ERR
section (j) is not unreasonable. Likewise, we conclude with the ALJ that the ERR was not
unreasonably applied to SEIU. (County of Monterey (2004) PERB Decision No. 1663-M.)
PERB's regulations do not supplant a lawful local rule for determining the window period for a
decertification petition. (County of Riverside (2011) PERB Decision No. 2163-M [PERB
regulations apply only when the agency has no local rule governing a particular representation
matter].)
11
explain how such an anomaly was necessitated by the language
of
section (j)(2), and we do not
find that to be the case. Accordingly, we conclude that this contention also lacks merit.
We do not reach the issue
of
the requirement under the ERR that a decertification
petition be accompanied by adequate proof
of
support dated within thirty (30) days. 	SEIU's
decertification petition was not denied on the basis that its proof
of
support was insufficient; it
was rejected solely on the ground that the petition itself was untimely filed. 	Thus, SEIU' s
contention concerning the 30-day rule need not be further addressed.
SEIU's Fourth Exception: Whether PERB's regulation should "fill the gap" in the County's
ERR.
In its final exception, SEIU contends that the ALJ failed to address whether PERB' s
regulations should "fill the gap" in the County's ERR. As the ALJ stated:
The inquiry does not concern whether PERB would find a
different local rule or different application
of
a local rule more
reasonable, or whether the existing local rule or its application is
unreasonable measured against an arbitrary standard. Instead, the
inquiry s whether a disputed local rule or its application is
consistent with and effectuates the purposes
of
the express
provisions
of
the Trial Court Act.
is
whether a disputed local rule or its application is
(Proposed Dec., p. 9.) Since the ALJ concluded that ERR section (j) was not unreasonable nor
was it unreasonably applied to SEIU, he had no occasion to determine whether PERB's
regulations should "fill the gap" in the County's ERR. We conclude with the ALJ that ERR
section (j) is not unreasonable. Likewise, we conclude with the ALJ that the ERR was not
unreasonably applied to SEIU. (County
of
Monterey (2004) PERB Decision No. 1663-M.)
PERB's regulations do not supplant a lawful local rule for determining the window period for a
decertification petition. (County
of
Riverside (2011) PERB Decision No. 2163-M [PERB
regulations apply only when the agency has no local rule governing a particular representation
matter].)
11

CONCLUSIONS OF LAW
Based upon the entire record in the case, we conclude that the Court did not violate the
Trial Court Act when it rejected as untimely the decertification petition filed by SEIU on
September 17, 2013.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-43-C are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.
12
CONCLUSIONS OF LAW
Based upon the entire record in the case, we conclude that the Court did not violate the
Trial Court Act when it rejected as untimely the decertification petition filed by SEIUon
. September 17, 2013.
ORDER
12
The complaint and underlying unfair practice charge in Case No. LA-CE-43-C are hereby
DISMISSED WITHOUT LEA VE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-43-C
v . 	PROPOSED DECISION
(03/05/2014)
SAN BERNARDINO COUNTY SUPERIOR
COURT,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld, by Jacob J. White, Attorney, for Service
Employees International Union, Local 721; Atkinson, Andelson, Loya, Ruud & Romo, by
Nate J. Kowalski and Jay Trinnaman, Attorneys, for San Bernardino County Superior Court.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a trial court's local rule regarding a decertification petition window
period as being contrary to the Trial Court Employment Protection and Governance Act (Trial
Court Act). The trial court denies any violation of the Trial Court Act or PERB Regulation.
On September 30, 2013, the Service Employees International Union, Local 721
(Local 721) filed an unfair practice charge (charge) against the San Bernardino County
Superior Court (Court) that its local rule violated the Trial Court Act. On November 4, 2013,
the Office of the General Counsel of the Public Employment Relations Board (PERB) issued a
complaint that on September 17, 2013, the Court denied Local 721's petition to decertify the
exclusive representative, the San Bernardino Public Employees Association (SBPEA or
The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated all statutory references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
v.
SAN BERNARDINO COUNTY SUPERIOR
COURT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-43-C
PROPOSED DECISION
(03/05/2014)
Appearances: Weinberg, Roger & Rosenfeld,
by
Jacob
J.
White, Attorney, for Service
Employees International Union, Local 721; Atkinson, Andelson, Loya, Ruud & Romo, by
Nate
J. Kowalski and Jay Trinnaman, Attorneys, for San Bernardino County Superior Court.
Before Shawn P. Cloughesy,
Chief
Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a trial court's local rule regarding a decertification petition window
period as being contrary to the Trial Court Employment Protection and Governance Act1 (Trial
Court Act). The trial court denies any violation
of
the Trial Court Act or PERB Regulation.2
On September 30, 2013, the Service Employees International Union, Local 721
(Local 721) filed an unfair practice charge (charge) against the San Bernardino County
Superior Court (Court) that its local rule violated the Trial Court Act. On November 4, 2013,
the Office
of
the General Counsel
of
the Public Employment Relations Board (PERB) issued a
complaint that on September 17, 2013, the Court denied Local 721
's
petition to decertify the
exclusive representative, the San Bernardino Public Employees Association (SBPEA or
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated all statutory references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

Association), of the Support Services Unit based upon its decertification petition window
period local rule which was contrary to the Trial Court Act and therefore violating Trial Court
Act sections 71631, 71633, 71635.1, 71636, and 71639.1(c), and PERB Regulation 32603(a),
(b) and (f).
On November 15, 2013, the Court answered the complaint denying the allegations and
asserting affirmative defenses. On December 4, 2013, an informal settlement conference was
held, but the dispute was not resolved. A formal hearing was scheduled for March 11, 2014.
On January 22, 2014, the Court filed a motion for summary judgment which included a
declaration from the Court's Director of Human Resources Kimberlie Turner (Turner) and
attached exhibits A through G in support of its motion. Local 721 filed a cross-motion for
summary judgment and opposition to the Court's motion for summary judgment on
February 10, 2014." On February 20, 2014, the Court filed its reply in support of its motion for
summary judgment. On February 28, 2014, Local 721 filed its surreply pursuant to leave
granted by the Administrative Law Judge. As neither party objected to the exhibits/declaration
cited by the other party, those exhibits will be considered for purposes of ruling on the
motion/cross-motion. Additionally, as neither side requested to present additional
These exhibits included the Memorandum of Understanding (MOU) between SBPEA
and the Court from 2009-2010; the MOU between SBPEA and the Court from 2011-2012; the
MOU between SBPEA and the Court from 2012-2015; the Court's Employee Relations Rules
(ERR's); Local 721's August 29, 2013 request for the Court's ERR's; Local 721's
September 9, 2013 decertification petition; and, the Court's September 17, 2013 response to
*Local 721 cited in support of its cross-motion/opposition: Local 721's
September 9, 2013 decertification petition; the Court's September 17, 2013 response to the
decertification petition; the declaration of Turner; the Court's ERR's; and the MOU between
SBPEA and the Court from 2011-2012.
'Local 721 entitled this surreply as "Charging Party SEIU Local 721's Reply
Memorandum in Support of its Motion for Summary Judgment." This was erroneously titled,
as the Court never sent an opposition to Local 721's motion for summary judgment, so it will
be treated as a surreply to the Court's motion for summary judgment.
Association),
of
the Support Services Unit based upon its decertification petition window
period local rule which was contrary to the Trial Court Act and therefore violating Trial Court
Act sections 71631, 71633, 71635.1, 71636, and 71639. l(c), and PERB Regulation 32603(a),
(b) and (f).
On November 15, 2013, the Court answered the complaint denying the allegations and
asserting affirmative defenses. 	On December 4, 2013, an informal settlement conference was
held, but the dispute was not resolved. A formal hearing was scheduled for March 11, 2014.
On January 22, 2014, the Court filed a motion for summary judgment which included a
declaration from the Court's Director
of
Human Resources Kimberlie Turner (Turner) and
attached exhibits A through G3
in support
of
its motion. Local 721 filed a cross-motion for
summary judgment and opposition to the Court's motion for summary judgment on
February 10, 2014.4 On February 20, 2014, the Court filed its reply in support
of
its motion for
summary judgment. On February 28, 2014, Local 721 filed its surreply5 pursuant to leave
granted by the Administrative Law Judge. As neither party objected to the exhibits/declaration
cited by the other party, those exhibits will be considered for purposes
of
ruling on the
motion/cross-motion. Additionally, as neither side requested to present additional
3 These exhibits included the Memorandum
of
Understanding (MOU) between SBPEA
and the Court from 2009-2010; the MOU between SBPEA and the Court from 2011-2012; the
MOU between SBPEA and the Court from 2012-2015; the Court's Employee Relations Rules
(ERR's); Local 721
's
August 29, 2013 request for the Court's ERR's; Local 721
's
September 9, 2013 decertification petition; and, the Court's September 17, 2013 response to
the decertification petition.	the decertification petition.
4 Local 721 cited in support of its cross-motion/opposition: Local 721
's
September 9, 2013 decertification petition; the Court's September 17, 2013 response to the
decertification petition; the declaration of Turner; the Court's ERR's; and the MOU between
SBPEA and the Court from 2011-2012.
5 Local 721 entitled this surreply as "Charging Party SEIU Local 721 's Reply
Memorandum in Support of its Motion for Summary Judgment." This was erroneously titled,
as the Court never sent an opposition to Local 721 's motion for summary judgment, so it will
be treated as a surreply to the Court's motion for summary judgment.
2

evidence/witness(es) and Local 721 did not request to cross-examine declarant Turner, the
matter shall be deemed submitted on the record as of February 28, 2014, based on the
exhibits/declaration, the motion/cross-motion for summary judgment, and the responsive
arguments.
FINDINGS OF FACT
The Court is a "trial court" within the meaning of Trial Court Act section 71601(k) and
PERB Regulation 32033(a). The Association is the "exclusive representative" of the Support
Services Unit within the meaning of PERB Regulation 32033(b). Local 721 is an "employee
organization" within the meaning of Trial Court Act section 71601(b).
Local Rules
Pursuant to Trial Court Act sections 71636 and 71636.3, on January 18, 2001, the Court
adopted local rules or ERR's, within the meaning of PERB Regulation 32033(c), for the
administration of employer-employee relations. These local rules provide in pertinent part:
Representation Proceedings.
Representation proceedings will be administered by the
Personnel Officer of the Court.
IT . . . ]
i) TIMING OF PETITIONS: A petition for certification,
decertification, or modification of an authorized employee
representation unit may only be filed during:
(1) A period beginning not earlier than two hundred forty
(240) days and ending not later than two hundred ten (210)
days before the expiration date of any Memorandum
of
Understanding covering the affected unit(s).
A period beginning not earlier than two hundred forty
(240) days and ending not later than two hundred ten (210)
days before the expiration date of any Memorandum of
Understanding covering the affected unit(s).
(2) In the event any Memorandum of Understanding covering
the affected unit(s) is continued for one (1) year by the terms
of said Memorandum, a Petition for certification,
decertification, or modification of an authorized employee
representation unit may only be filed during a period
beginning not earlier than two hundred forty (240) days and
evidence/witness(es) and Local 721 did not request to cross-examine declarant Turner, the
matter shall be deemed submitted on the record as
of
February 28, 2014, based on the
exhibits/declaration, the motion/cross-motion for summary judgment, and the responsive
arguments.
FINDINGS OF FACT
The Court is a "trial court" within the meaning
of
Trial Court Act section 71601(k) and
PERB Regulation 32033(a).
The
Association is the "exclusive representative"
of
the Support
Services Unit within the meaning
of
PERB Regulation 32033(b). Local 721 is an "employee
organization" within the meaning
of
Trial Court Act section 7160l(b).
Local Rules
Pursuant to Trial Court Act sections 71636 and 71636.3, on January 18, 2001, the Court
adopted local rules or ERR's, within the meaning
of
PERB Regulation 32033(c), for the
administration
of
employer-employee relations. These local rules provide in pertinent part:
Representation Proceedings.
Representation proceedings will be administered by the
Personnel Officer
of
the Court.
G)
TIMING OF PETITIONS: A petition for certification,
decertification, or modification
of
an authorized employee
representation unit may only be filed during:
(1)
(2) In the event any Memorandum
of
Understanding covering
the affected unit( s) is continued for one ( 1) year by the terms
of said Memorandum, a Petition for certification,
decertification, or modification of an authorized employee
representation unit may only be filed during a period
beginning not earlier than two hundred forty (240) days and
3

ending not later than two hundred ten (210) days before the
first anniversary date of the agreement;
In the event any Memorandum of Understanding covering
the affected unit(s), or the continuation of said Memorandum
has expired, a Petition for certification, decertification, or
modification of an authorized employee representation unit
may only be filed in the thirty (30) day period which begins
eleven (11) months after the most recent filing period
referenced in this section.
(Emphasis added.)
MOU's and MOU Extensions between the Court and the Association
On August 19, 2009, the Association and the Court executed an MOU (2009-2010
MOU) for the Support Services Unit which had an expiration date of September 30, 2009.
This MOU had a provision that stated that if a successor MOU could not be negotiated by the
expiration date, the MOU would be extended for one year or until a successor MOU was
adopted, whichever occurred sooner. As a successor MOU was not negotiated by
September 30, 2010, the MOU was automatically extended for one year until
September 30, 2011 (2010 MOU Extension). As September 30, 2011 was the "first
anniversary date of the agreement" or extension, the window period for filing a decertification
petition during the extension period as set forth in the ERR section (j)(2) was between
February 3, 2011 and March 5, 2011.
"Local 721 complains that the "first anniversary date of the agreement" is facially
invalid as it is not defined in the local rules and is vague as it could apply to the first
anniversary date of the MOU. The only logical application of this term would be to apply the
"date of the agreement" to the day that the MOU was extended, especially since it would have
referred to the term "Memorandum of Understanding" or "Memorandum" instead of
"agreement" in ERR section (i)(2), if it was to apply to the MOU itself. Additionally, if it
would apply to the MOU instead of the extension, it would not make any sense as it would
apply to a time period that had long since passed. A statutory (or regulatory) construction
which creates mischief and absurdity is to be avoided. (Dyna-Med, Inc. v. Fair Employment
and Housing Commission (1987) 43 Cal.3d 1379, 1392.)
ending not later than two hundred ten (210) days before the
first anniversary date
of
the agreement;
(3)	(3) In the event any Memorandum
of
Understanding covering
the affected unit(s), or the continuation
of
said Memorandum
has expired, a Petition for certification, decertification, or
modification
of
an authorized employee representation unit
may only be filed in the thirty (30) day period which begins
eleven (11) months after the most recent filing period
referenced in this section.
(Emphasis added.)
MOU's and MOU Extensions between the Court and the Association
On August 19, 2009, the Association and the Court executed an MOU (2009~2010
MOU) for the Support Services Unit which had an expiration date
of
September 30, 2009.
This MOU had a provision that stated that
if
a successor MOU could not be negotiated by the
expiration date, the MOU would be extended for one year or until a successor MOU was
adopted, whichever occurred sooner. As a successor MOU was not negotiated by
September 30, 2010, the MOU was automatically extended for one year until
September 30, 2011 (2010 MOU Extension). As September 30, 2011 was the "first
anniversary date
of
the agreement"6 or extension, the window period for filing a decertification
petition during the extension period as set forth in the ERR section G)(2) was between
February 3, 2011 and March 5, 2011.
6 Local 721 complains that the "first anniversary date
of
the agreement" is facially
invalid as it is not defined in the local rules and is vague as it could apply to the first
anniversary date
of
the MOU. The only logical application
of
this term would be to apply the
"date of the agreement" to the day that the MOU was extended, especially since it would have
referred to the term "Memorandum of Understanding" or "Memorandum" instead
of
"agreement" in ERR section G)(2), if it was to apply to the MOU itself. Additionally,
if
it
would apply to the MOU instead of the extension, it would not make any sense as it would
apply to a time period that had long since passed. A statutory ( or regulatory) construction
which creates mischief and absurdity is to be avoided. (Dyna-Med, Inc.
v.
Fair Employment
and Housing Commission (1987) 43 Cal.3d 1379, 1392.)
4

On December 1, 2011, the Association and the Court executed another MOU
(2011-2012 MOU) that expired on November 30, 2012. The MOU also had a provision which
stated that if a successor MOU could not be negotiated by the expiration date, the MOU would
be extended for one year or until a successor MOU was adopted, whichever occurred sooner.
As a successor MOU was not negotiated by November 30, 2012, the MOU was extended for a
period up to one year (2012 MOU Extension). As November 30, 2012 was the expiration date
of the 2011-2012 MOU, the window period for filing a decertification petition during the
MOU period as set forth in the ERR section (i)(1) was between April 4, 2012 and May 4, 2012.
As November 30, 2013 was the first anniversary date of the extension, the window period for
filing a decertification petition during the extension period as set forth in the ERR section
(i)(2) was between April 4, 2013 and May 4, 2013 for the 2012 MOU Extension.
On August 30, 2013, the Association and the Court ratified a successor MOU with a
retroactive date of December 1, 2012 and continuing until June 30, 2015 (2012-2015 MOU).
According to the ERR section ()(1), the window period for filing a decertification petition
during the MOU period would be between November 2 and December 2, 2014.
Specifically, MOU Article 62 provided in pertinent part:
(a) The term
of
this Memorandum
of
Understanding shall
commence at 12:01 a.m. December 1, 2011 and this
Memorandum
of
Understanding shall expire and otherwise be
fully terminated at 12:00 a.m. (midnight)
of
November 30,
2012.
If
a successor Memorandum ofUnderstanding,has not
been reached by 12:00 a.m. (midnight)
of
November 30,
2012, the terms and conditions
of
this Memorandum
of
Understanding shall be extended one (1) year or until a
successor Memorandum
of
Understanding is adopted,
whichever occurs sooner.
The term of this Memorandum of Understanding shall
commence at 12:01 a.m. December 1, 2011 and this
Memorandum of Understanding shall expire and otherwise be
fully terminated at 12:00 a.m. (midnight) of November 30,
2012. If a successor Memorandum of Understanding has not
been reached by 12:00 a.m. (midnight) of November 30,
2012, the terms and conditions of this Memorandum of
Understanding shall be extended one (1) year or until a
successor Memorandum of Understanding is adopted,
whichever occurs sooner.
(Emphasis added.)
5
On
December 1, 2011, the Association
and
the Court executed another MOU
(2011-2012 MOU) that expired
on
November 30, 2012. The MOU also
had
a provision which
stated that
if
a successor
MOU
could not be negotiated by the expiration date, the
MOU
would
be extended for one year or until a successor
MOU
was adopted, whichever occurred sooner.7
As a successor
MOU
was not negotiated by November 30, 2012, the MOU was extended for a
period up to one year (2012
MOU
Extension). As November 30, 2012 was the expiration date
of
the 2011-2012 MOU, the window period for filing a decertification petition during the
MOU period as set forth in the
ERR
section G)(l) was between April 4, 2012 and May 4, 2012.
As November 30, 2013 was the first anniversary date
of
the extension, the window period for
filing a decertification petition during the extension period as set forth
in
the
ERR
section
0)(2) was between April 4, 2013 and May 4, 2013 for the 2012 MOU Extension.
On
August 30, 2013, the Association and the Court ratified a successor MOU with a
retroactive date
of
December 1, 2012 and continuing until June 30, 2015 (2012-2015 MOU).
According to the
ERR
section (j)(l), the window period for filing a decertification petition
during the MOU period would be between November 2 and December 2, 2014.
7 Specifically, MOU Article 62 provided in pertinent part:
(Emphasis added.)
5

Petition for Decertification
On September 9, 2013, Martin Manteca (Manteca), Organizing Director for Local 721,
wrote the Court Executive Officer Stephen Nash (Nash) and submitted a decertification
petition which stated in pertinent part:
SEIU Local 721 desires to become the exclusive recognized
employee organization, for the purposes of employee
representation, of the following authorized employee
representation unit: Support Services Unit. This Unit is currently
represented by [SBPEA]. However, SEIU Local 721 has proof
that more than forty percent (40%) of the employees in this Unit
wish to decertify SBPEA and be represented by SEIU Local 721.
On September 17, 2013, Nash responded to the petition by stating:
As you may know, pursuant to the terms of the subject contract
with SBPEA, the contract was extended to 12:00 midnight on
November 30, 2013. Accordingly, under section (i)(2), a
decertification petition must be filed "during a period beginning
not earlier than two hundred forty (240) days and ending not later
than two hundred ten (210) days before the first anniversary date
of the agreement." November 30, 2013, would be the first
anniversary date of the one (1) year extension and therefore we
calculate that a decertification petition should have been filed
between April 5, 2013 and May 4, 2013.
Because the petition on behalf of SEIU Local 721 was not filed
timely under the Employee Relations Rules, the Court is unable
to act upon it.
ISSUE
Is ERR section (i)(1) and (2), which governs the window periods for decertification
petitions during the MOU period and the MOU extension period, and the MOU extension
language "whichever occurs sooner," contrary to the Trial Court Act as applied to Local 721's
September 9, 2013 petition for decertification?
he petition was received by the Court Executive Officer on September 13, 2013.
6
Petition for Decertification
On September 9, 2013,8 Martin Manteca (Manteca), Organizing Director for Local 721,
wrote the Court Executive Officer Stephen Nash (Nash) and submitted a decertification
petition which stated in pertinent part:
SEID Local 721 desires to become the exclusive recognized
employee organization, for the purposes
of
employee
representation,
of
the following authorized employee
representation unit: Support Services Unit. This Unit is currently
represented by [SBPEA]. However, SEID Local 721 has proof
that more than forty percent (40%)
of
the employees
in
this Unit
wish to decertify SBPEA and be represented by SEID Local 721.
On September 17, 2013, Nash responded to the petition by stating:
As you may know, pursuant to the terms
of
the subject contract
with SBPEA, the contract was extended to 12:00 midnight on
November 30, 2013. Accordingly, under section 0)(2), a
decertification petition must be filed "during a period beginning
not earlier than two hundred forty (240) days and ending not later
than two hundred ten (210) days before the first anniversary date
of
the agreement." November 30, 2013, would be the first
anniversary date
of
the one ( 1) year extension and therefore we
calculate that a decertification petition should have been filed
between April 5, 2013 and May 4, 2013.
Because the petition on behalf
of
SEID Local 721 was not filed
timely under the Employee Relations Rules, the Court is unable
to act upon it.
ISSUE
Is ERR section G)(l) and (2), which governs the window periods for decertification
petitions during the MOU period and the MOU extension period, and the MOU extension
language "whichever occurs sooner," contrary to the Trial Court Act as applied to Local 721
's
September 9, 2013 petition for decertification?
T The petition was received by the Court Executive Officer on September 13, 2013.
6

CONCLUSIONS OF LAW
Pertinent Trial Court Act Sections and PERB Regulations:
The pertinent Trial Court Act sections concerning a trial court's reasonable rules related
to a petition for decertification provide:
71630(a) It is also the purpose of this article to promote the
improvement of personnel management and employer-employee
relations within the trial courts in the state by providing a uniform
basis for recognizing the right of trial court employees to join
organizations of their own choice and be represented by those
organizations in their employment relationships with trial courts.
71631 Except as otherwise provided by the Legislature, trial court
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations.
CT . . . 0]
71636(a) A trial court may adopt reasonable rules and regulations
after consultation in good faith with representatives of a
recognized employee organization or organizations for the
administration of employer-employee relations under this article.
These rules and regulations may include provisions for:
19 . . . 1
(3) Recognition of employee organizations.
11...9
(9)(c) No trial court shall unreasonably withhold recognition of
employee organizations.
15 . ..0
(e) Trial court employees and employee organizations shall be able
to challenge a rule or regulation of a trial court as a violation of
this chapter.
71636.3 (a) Unit determinations and representation elections shall
be determined and processed in accordance with rules adopted by a
CONCLUSIONS OF LAW
Pertinent Trial Court Act Sections and PERB Regulations:
The pertinent Trial Court Act sections concerning a trial court's reasonable rules related
to a petition for decertification provide:
71630(a) It is also the purpose
of
this articleto promote the
improvement
of
personnel management and employer-employee
relations within the trial courts in the state by providing a uniform
basis for recognizing the right
of
trial court employees to ioin
organizations
of
their own choice and be represented by those
organizations in their employment relationships with trial courts.
71631 Except as otherwise provided by the Legislature, trial court
employees shall have the right to form, join, and participate in the
activities
of
employee organizations
of
their own choosing for the
purpose
of
representation on all matters
of
employer-employee
relations.
71636(a) A trial court may adopt reasonable rules and regulations
after consultation in good faith with representatives
of
a
recognized employee organization or organizations for the
administration
of
employer-employee relations under this article.
These rules and regulations may include provisions for:
(3) Recognition
of
employee organizations.
(9)(c) No trial court shall unreasonably withhold recognition
of
employee organizations.
(e) Trial court employees and employee organizations shall be able
to challenge a rule or regulation
of
a trial court as a violation
of
this chapter.
71636.3 (a) Unit determinations and representation elections shall
be determined and processed in accordance with rules adopted by a
7

trial court in accordance with this chapter. In a representation
election, a majority of the votes cast by the employees in the
appropriate bargaining unit shall be required.
[1. ..0
71639.1(b) The powers and duties of the board described in
Section 3541.3 shall also apply, as appropriate, to this article and
shall include the authority as set forth in subdivisions (c) and (d).
Included among the appropriate powers of the board are the power
to order elections, to conduct any election the board orders, and to
adopt rules to apply in areas where a trial court has no rule.
(c) A complaint alleging any violation of this article or of any
rules and regulations adopted by a trial court pursuant to Section
71636 shall be processed as an unfair practice charge by the board.
The initial determination as to whether the charge of unfair
practice is justified and, if so, the appropriate remedy necessary to
effectuate the purposes of this article, shall be a matter within the
exclusive jurisdiction of the board, . . . The board shall apply and
interpret unfair labor practices consistent with existing judicial
interpretations of this article and Section 71639.3. . . .
(d) The board shall enforce and apply rules adopted by a trial
court concerning unit determinations, representation, recognition,
and elections.
71639.3 Trial courts and trial court employees are not covered by
Chapter 10 (commencing with Section 3500) of Division 4 of
Title 1, or any subsequent changes to these sections except as
provided in this article. However, where the language of this
article is the same or substantially the same as that contained in
Chapter 1019 (commencing with Section 3500) of Division 4 of
Title 1, it shall be interpreted and applied in accordance with the
judicial interpretations of the same language.
(Emphasis added.)
The pertinent PERB Regulations regarding a violation of the Trial Court Act or a local
rule related to a petition for decertification provide:
32606 It shall be an unfair practice for a trial court to do any of the following:
15 ...1
"Chapter 10 is the Meyers-Milias-Brown Act (MMBA), Government Code section
3500, et seq.
· trial court in accordance with this chapter. In a representation
election, a majority
of
the votes cast by the employees in the
appropriate bargaining unit shall be required.
71639.l(b) The powers and duties
of
the board described in
Section 3541.3 shall also apply, as appropriate, to this article and
shall include the authority as set forth in subdivisions (c) and (d).
Included among the appropriate powers
of
the board are the power
to order elections, to conduct any election the board orders, and to
adopt rules to apply in areas where a trial court has no rule.
(c) A complaint alleging any violation
of
this article or
of
any
rules and regulations adopted by a trial court pursuant to Section
71636 shall be processed as an unfair practice charge by the board.
The initial determination as to whether the charge
of
unfair
practice is justified and,
if
so, the appropriate remedy necessary to
effectuate the purposes
of
this article, shall be a matter within the
exclusive jurisdiction
of
the board,
...
The board shall apply and
interpret unfair labor practices consistent with existing judicial
interpretations
of
this article and Section 71639.3
....
(d) The board shall enforce and apply rules adopted by a trial
court concerning unit determinations, representation, recognition,
and elections.
71639.3 Trial courts and trial court employees are not covered by
Chapter 10 (commencing with Section 3500)
of
Division 4
of
Title
1,
or any subsequent changes to these sections except as
provided in this article. However. where the language
of
this
article is the same or substantially the same as that contained in
Chapter 10[9l (commencing with Section 3500)
of
Division 4
of
Title· 1, it shall be interpreted and applied in accordance with the
judicial interpretations
of
the same language.
(Emphasis added.)
The pertinent PERB Regulations regarding a violation
of
the Trial Court Act or a local
rule related to a petition for decertification provide:
32606 It shall be an unfair practice for a trial court to do any
of
the following:
[fl
...
,a
9 Chapter 10 is the Meyers-Milias-Brown Act (MMBA), Government Code section
3500, et seq.
8

(f) Adopt or enforce a local rule that is not in conformance with
the Trial Court Act.
Unreasonable Regulation
When the language in the sections of the Trial Court Act and the MMBA are similar,
including cases regarding the determination of whether a local rule is reasonable, PERB has
applied past judicial precedent regarding the MMBA. (Tehama County Superior Court (2008)
PERB Decision No. 1957-C, pp. 5 and 6.) Trial Court Act sections 71630, 71631, 71636,
71636.3 and 71639.1 are similar to MMBA sections 3500, 3502, 3507, 3507.1 and 3509 and
therefore MMBA precedent shall be applied to this Trial Court Act case.
A local government agency may not adopt rules and regulations which "would frustrate
the declared policies and purposes of the [MMBA] . . . [The power reserved to local agencies
. . . was intended to permit supplementary regulations which are 'consistent with, and
effectuate the declared purposes of, the statute as a whole." (Huntington Beach Police
Officers Association v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 502 [Huntington
Beach].) The inquiry does not concern whether PERB would find a different local rule or
different application of a local rule more reasonable, or whether the existing local rule or its
application is unreasonable measured against an arbitrary standard. Instead, the inquiry is
whether a disputed local rule or its application is consistent with and effectuates the purposes
of the express provisions of the Trial Court Act. (International Brotherhood of Electrical
Workers, Local 1245 v. City of Gridley (1983) 34 Cal.3d 191; Huntington Beach; City of San
Rafael (2004) PERB Decision No. 1698-M; County of Monterey (2004) PERB Decision No.
1663-M.) When a local agency's rule or its application is challenged as unreasonable, the
burden of proof is on the challenging party. (Organization of Deputy Sheriffs v. County of San
Mateo (1975) 48 Cal.App.3d 331, 338; PERB 	32178.)
9
(f) Adopt or enforce a local rule that is not in conformance with
the Trial Court Act.
Unreasonable Regulation
When the language in the sections
of
the Trial Court Act and the MMBA are similar,
including cases regarding the determination
of
whether a local rule is reasonable, PERB has
applied past judicial precedent regarding the MMBA. (Tehama County Superior Court (2008)
PERB Decision No. 1957-C, pp. 5 and 6.) Trial Court Actsections 71630, 71631, 71636,
71636.3 and 71639.1 are similar to MMBA sections 3500, 3502, 3507, 3507.1 and 3509 and
therefore MMBA precedent shall be applied to this Trial Court Act case.
A local government agency may not adopt rules and regulations which "would frustrate
the declared policies and purposes
of
the [MMBA]
...
[T]he power reserved to local agencies
...
was intended to permit supplementary regulations which are 'consistent with, and
effectuate the declared purposes of, the statute as a whole.'" (Huntington Beach Police
Officers Association
v.
City
of
Huntington Beach (1976)
58
Cal.App.3d 492, 502 [Huntington
Beach].) The inquiry does not concern whether PERB would find a different local rule or
different application
of
a local rule more reasonable, or whether the existing local rule or its
application is unreasonable measured against an arbitrary standard. Instead, the inquiry is
whether a disputed local rule or its application is consistent with and effectuates the purposes
of
the express provisions
of
the Trial Court Act. (International Brotherhood
of
Electrical
Workers, Local 1245
v.
City
of
Gridley (1983) 34 Cal.3d 191; Huntington Beach; City
of
San
Rcifael (2004) PERB Decision No. 1698-M; County
of
Monterey (2004) PERB Decision No.
1663-M.) When a local agency's rule or its application is challenged as unreasonable, the
burden of proof is on the challenging party. (Organization
of
Deputy Sheriffs
v.
County
of
San
Mateo (1975) 48 Cal.App.3d 331, 338; PERB 	32178.)	Regulation	Regulation
9

It is not disputed that Local 721's decertification filing did not occur during any of the
window periods set forth in ERR section ()(1) and (2). Instead, Local 721 contends that ERR
section (j) is contrary to the Trial Court Act because the 2011-2012 MOU was a contract of
indefinite duration and therefore may not serve to bar a decertification petition (State of
California, Department of Personnel Administration (1989) PERB Order No. Ad-191-S;
County of Sacramento (2004) PERB Decision No. 1581-M) or, in the alternative, that the
MOU extension language "whichever occurs sooner" alters the window period which interferes
with a challenging organization's ability to mount a decertification drive (Hayward Unified
School District (1980) PERB Order No. Ad-96). Local 721 argues that because of the
defective extension set forth in the 2011-2012 MOU, the PERB Regulations must be applied to
"fill the gap." (County of Orange (2010) PERB Decision No. 2138-M; County of Amador
(2013) PERB Decision No. 2318-M.)
In support of its argument, Local 721 cites Crompton Company (1982) 260 NLRB 417,
Frye & Smith, Lid. (1965) 151 NLRB 49, and White Provision Company (1956)
116 NLRB 1552, where incumbent unions and the employer agreed to extension of a
Collective Bargaining Agreement (CBA) and if the parties came to a successor CBA, it would
supercede the CBA extension. The effect of such an extension agreement would be that the
extension would continue the contract bar and prohibit a challenging employee organization
from filing a decertification petition and, therefore, interfere with employee choice. In those
cases cited by Local 721, the extension eliminated part of the window period where an
employee organization could petition to decertify the incumbent union. However, in this case,
the Court's local rules provide for a window period within the MOU extension period where
the extension provided in the cases relied upon by Local 721 did not.
10
It is not disputed that Local 721
's
decertification filing did not occur during any
of
the
window periods set forth in ERR section G)(l) and (2). Instead, Local 721 contends that ERR
section
G)
is contrary to the Trial Court Act because the 2011-2012 MOU was a contract
of
indefinite duration and therefore may not serve to bar a decertification petition(State
of
California, Department
of
Personnel Administration (1989) PERB Order No. Ad-191-S;
County
of
Sacramento (2004) PERB Decision No. 1581-M) or, in the alternative, that the
MOU extension language "whichever occurs sooner" alters the window period which interferes
with a challenging organization's ability to mount a decertification drive (Hayward Unified
School District (1980) PERB Order No. Ad-96). Local 721 argues that because
of
the
defective extension set forth in the 2011-2012 MOU, the PERB Regulations must be applied to
"fill the gap." (County
of
Orange (2010) PERB Decision No. 2138-M; County ofAmador
(2013) PERB Decision No. 2318-M.)
In support
of
its argument, Local 721 cites Crompton Company ( 1982) 260 NLRB 417,
Frye & Smith, Ltd. (1965) 151 NLRB 49, and White Provision Company (1956)
116 NLRB 15 52, where incumbent unions and the employer agreed to extension
ofa
Collective Bargaining Agreement (CBA) and
if
the parties came to a successor CBA, it would
supercede the CBA extension. The effect
of
such an extension agreement would be that the
extension would continue the contract bar and prohibit a challenging employee organization
from filing a decertification petition and, therefore, interfere with employee choice. In those
cases cited by Local 721, the extension eliminated part
of
the window period
employee organization could petition to decertify the incumbent union. However, in this case,
the Court's local rules provide for a window period within the MOU extension period where
the extension provided in the cases relied upon by Local 721 did not.
where an
'-
10

In the instant case, the MOU extension language "whichever occurs sooner" did not
eliminate the established window period in ERR (j)(2) during which employees could depend
on a time-certain opportunity to exercise a basic, but limited right (San Francisco Unified
School District (1984) PERB Decision No. 476, pp. 6 and 7), especially since the 2012-2015
MOU was not ratified until August 30, 2013, which was after the April 4, 2013 through
May 4, 2013 window had expired." Therefore, in this situation, the Court's local rules do not
violate an employees' right to choose an employee organization which they want to represent
them before the employer. As the right to employees' choice was not eliminated and
Local 721 did not file during the window period set forth in ERR section (i)(2), the allegation
that ERR section (j) violated the Trial Court Act is hereby dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-43-C,
Service Employees International Union, Local 721 v. San Bernardino County Superior Court,
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board's address is:
"Even if the MOU extension window period had not passed when the Court and the
Association ratified a successor MOU, the remedy for eliminating the set window period (April
4, 2013 through May 4, 2013) would be to reinstate the window period set forth in the local
rules, and not to "fill the
period in question to be applied.
11
In the instant case, the MOU extension language "whichever occurs sooner" did not
eliminate the established window period in ERR (j)(2) during which employees could depend
on a time-certain opportunity to exercise a basic, but limited right (San Francisco Unified
School District (1984) PERB Decision No. 476, pp. 6 and 7), especially since the 2012-2015
MOU was not ratified until August 30, 2013, which was after the April 4, 2013 through
May 4, 2013 window had expired. 10 Therefore,
in
this situation, the Court's local rules do not
violate an employees' right to choose an employee organization which they want to represent
them before the employer. As the right to employees' choice was not eliminated and
Local 721 did not file during the window period set forth in ERR section 0)(2), the allegation
that ERR section
G)
violated the Trial Court Act is hereby dismissed.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in
this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-43-C,
Service Employees International Union, Local 721
v.
San Bernardino County Superior Court,
are hereby DISMISSED.	are hereby DISMISSED.
Pursuant to California Code ofRegulations,title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement
of
exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this Decision. The
Board's address is:
10
Even
if
the MOU extension window period had not passed when the Court and the
Association ratified a successor MOU, the remedy for eliminating the set window period (April
4, 2013 through May 4, 2013) would be to reinstate the window period set forth in the local
rules, and not to "fill thegap" with a PERB regulation as the local rules provided the window
period in question to be applied.
gap" with a PERB regulation as the local rules provided the window
11

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, $ 32300.)
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 or received by electronic mail before
the close of business, 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, $8 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $5 32300, 32305, 32140, and
32135, subd. (c).)
12
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement
of
exceptions should identify by page
citation or exhibit number the portions
of
the record,
if
any, relied upon for such exceptions. (Cal.
Code Regs., tit.
8,
§ 32300.)
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 or received by electronic mail before
the close
of
business, 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, 32091 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served on a
party
or
filed with the Board itself. (See Cal. Code Regs., tit. 8,
§§
32300, 32305, 32140, and
32135, subd. (c).)
12