City of Vallejo (PERB A399M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CITY OF VALLEJO,
Employer, Case No. SF-SV-119-M
and Administrative Appeal
PUBLIC EMPLOYEES UNION, LOCAL ONE, PERB Order No. Ad-399-M
April 12, 2013
Petitioner,
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 2376,
Exclusive Representative.

Appearances: Renne, Sloan, Holtzman & Sakai by Genevieve Ng, Attorney, for City of
Vallejo; Matthew Mason, Business Agent, for Public Employees Union, Local One.

Before Huguenin, Winslow and Banks, Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal from the attached dismissal by the Office of the General Counsel
of a severance petition filed by the Public Employees Union, Local One (Local One) which
sought to carve out a unit of Water Maintenance and Operations employees from the existing
Maintenance and Operations unit.

After concluding that the local rules of the City of Vallejo (City) did not provide for
severance petitions, the Office of the General Counsel applied PERB’s rules concerning

representation matters, including PERB Regulation 61400(b),’ which requires severance

‘ PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

petitions to be filed within a "window period" as defined in the regulations. 2 The Office of the
General Counsel determined that the severance petition was filed one day after the window
period closed and that the petition was also deficient because it was not accompanied by a
proof of support as required by PERB Regulation 6121 0(b ). For both of these reasons the
Office of the General Counsel dismissed Local One's petition.
In its appeal, Local One claims that the petition was not untimely because it was mailed
on the last day of the window period.
The Board has reviewed the dismissal letter and the record in light of Local One's
appeal and relevant law. Based on this review, we find the Office of the General Counsel's
dismissal to be well-reasoned, adequately supported by the record, and in accordance with
applicable law. Accordingly, the Board adopts the dismissal letter as the decision of the Board
itself.
DISCUSSION
In response to Local One's appeal, the City asserts that the appeal was not timely filed.
We reject this claim for the following reasons.
The dismissal letter was served on the parties November 5, 2012. It informed the
parties that an appeal to the Board itself may be made within 10 days of the date of service of
this decision. The dismissal letter also described when a document is considered "filed" at
PERB, and the definition of "service" within the meaning of PERB Regulation 32135(c).
Local One sought and was granted a two-week extension within which to file its appeal,
making the new due date November 30, 2012. The letter granting the extension was sent by
2 PERB Regulation 61000 provides in pertinent part: "the Board will conduct
representation proceedings ... under MMBA [Meyers-Milias-Brown Act] in accordance with
the applicable provisions of this Chapter only where a public agency has not adopted local
rules in accordance with MMBA section 3507." (MMBA is codified at Government Code
section 3500 et seq.)
2

United Stated mail. PERB's files show that the appeal was filed by facsimile on December 4,
2012. A proof of service was also filed on December 5, 2012 showing service of the appeal on
December 4, 2012. Because PERB has consistently applied PERB Regulation 32130(c) to
appeals filed by parties who have been granted an extension of time within which to file the
appeal, Local One's appeal was due on December 5, 2012.3 (Los Angeles County Office of
Education (2005) PERB Decision No. 1743; State of California (State Personnel Board)
(2004) PERB Order No. Ad-343-S.) Documents are considered filed "when received during a
regular PERB business day by facsimile transmission at the appropriate PERB office."
(PERB Regulation 32135(b).) Thus, the appeal was timely filed. 	We nevertheless dismiss the
appeal on the merits for reasons discussed in the dismissal letter.
ORDER
The appeal in Case No. SF-SV-119-M by the Public Employees Union, Local One is
hereby DENIED.
Members Huguenin and Banks joined in this Decision.
3 PERB Regulation 3213 0( c) provides, in pertinent part:
"A five day extension of time shall apply to any filing made in
response to documents served by mail if the place of address is
within the State of California .... No extension of time applies in
the case of documents served in person, or by facsimile
transmission."
3

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 946 l 2-2514
Telephone: 510-622-1025
Fax: (510) 622-1027
November
5,
2012
Matthew Mason, Business Agent
Pulic Employees Union, Local 1
P.
0.
Box 6783
Concord, CA 94524-1783
Re: 	Case No. SF-SV-119-M
City Of Vallejo
Dear Mr. Mason:
EDMUND
G.
BROWN
	Governor
The above-referenced severance petition was filed with the Public Employment Relations
Board (PERB or Board) on October 2, 2012 by the Public Employees Union, Local 1 (PEU or
Petitioner). The petition seeks to sever a Water Maintenance and Operations unit at the City
of
Vallejo (City) from the existing Maintenance and Operations unit represented by the
International Brotherhood
of
Electrical Workers, Local
23
76
(IBEW or Exclusive
Representative).
On October 12, 2012, the City provided to PERB a copy
of
its employer-employee relations
resolution. 	On October 15, 2012, the undersigned determined that the City has not adopted
local rules providing a severance process pursuant to MMBA section 3507, 1 and that, pursuant
to PERB Regulation 61000,2 PERB will conduct representation proceedings in the above-
referenced matter. (County
of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision
No. 2113-M.)
PERB Has Authority to Conduct Representation Proceedings
City	On October 22, 2012, IBEW requested "reconsideration"
of
the determination that the 	has
not adopted local rules providing a severance process. IBEW states that, "there have been
instances in the past in which groups of employees have been severed from existing bargaining
units including, in particular, the severance in 1986 of uniformed fire department employees in
the classifications
of
Assistant Fire Chief and Battalion Fire Chief from a unit formerly
consisting of all uniformed fire department employees."
1 The MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise
specified, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-SV-119-M
November 5, 2012
Page 2
No party has alleged what specific sections
of
the City's employer-employee relations
resolution provide for a severance process. Section 2.b
of
the resolution, as originally adopted
on January 13, 1969, states that "The representational units
of
employees shall be:
1)
Uniformed Police Depatiment employees; 2) Uniformed Fire Department employees; and 3)
Miscellaneous employees." No provision is made to modify those defined representational
units.
its	The City's employer-employee resolution has been amended several times subsequent to
initial promulgation. On December 23, 1986, section 2.b
of
the resolution was amended to
read, "The representational units
of
employees shall be:
1)
Uniformed Police Department
employees; 2) Uniformed Fire Department employees; 3) Miscellaneous employees; and 4)
Uniformed fire department employees in the classifications
of
Assistant Fire Chief and
Battalion Fire Chief." Section 2.b was amended again on December 10, 1991 to create a fifth
bargaining unit, defined as:
All unclassified employees with the exception of: offices required by the
City Charter to be filled by election or appointment by the City Council;
the heads
of
the separate departments; one assistant and one secretary to
the City Manager; one secretary to the mayor; one analyst within the
Human Resources Department; one attorney assistant to the City
Attorney who shall either be included or excluded from this
representational unit at the election
of
the City Attorney during the term
of
any memorandum
of
understanding between the City
of
Vallejo and
any employee organization recognized as the exclusive representative
of
this unit; part-time employees who are regularly employed for less than
one-third time throughout the year, or who are employed on a seasonal
employment for not more than 90 days in any consecutive 12 months;
those engaged by contract for special services.
PERB has held that both the plain language
of
MMBA section 3 509 and legislative intent
behind that section are clear that PERB regulations serve to "fill in the gap" when a local
agency has not adopted a local rule on a particular representation issue. (County
of
Siskiyou/Siskiyou County Superior Court, supra, PERB Decision No. 2113-M.) Therefore,
PERB regulations will apply in the instant case if the City has not adopted a local rule that
provides a process for severance.
Although the established bargaining units of the City's employees have changed several times
since 1969, it does not appear that this was done via a process within the City's employer-
employee relations resolution. The practice appears rather to have been to modify existing
bargaining units by resolution of the City Council on an ad-hoc basis. Because each version of
section 2.b of the resolution specifies and limits the appropriate bargaining units of City
employees, each subsequent change in composition in these units had to be done through an
amendment to the resolution itself. 	This very fact supports the conclusion that the City has not
adopted a local rule that provides a severance process.

SF-SV-119-M
November 5, 2012
Page 3
Finally, section 2.e
of
the City's employer-employee resolution, as amended, states in relevant
part, "Each employee representational unit shall be represented by no more than one formally
recognized employee organization." This section would appear to bar a petition by an
employee organization to represent a group
of
employees within any
of
the units defined at
section 2.b,
if
those employees are currently represented by a different employee organization.
In other words, section 2.e appears to bar severance petitions.
For these reasons, it is concluded that pursuant to PERB regulation 61000, PERB will conduct
representation proceedings in the above-referenced matter. (County ofSiskiyou/Siskiyou
County Superior Court, supra, PERB Decision No. 2113-M.)
The Petition
is
Untimely
MMBA	Because
of
the foregoing, PERB regulations on the filing
of
a severance petition under
apply. (County
of
Siskiyou/Siskiyou County Superior Court, supra, PERB Decision No. 2113-
M.) PERB regulation 61400(b) states, "Whenever a memorandum
of
understanding exists, a
severance petition or an amendment to a severance petition must be filed during the 'window
period' defined by Section 61010." PERB Regulation 61010 states that the window period is:
the 29-day period which is less than 120 days but more than 90 days
prior to the expiration date
of
a lawful memorandum
of
understanding
negotiated by the public agency and the exclusive representative.
Expiration date means the last effective date
of
the memorandum.
Notwithstanding the provisions
of
Section 32130, the date on which the
memorandum
of
understanding expires shall not be counted for the
purpose
of
computing the window period.
PERB strictly enforces the window period. (Alum Rock Union Elementary School District
(1996) PERB Order No. Ad-280.)
of
	A severance petition must also be accompanied by proof of at least 30 percent support 	the
employees in the unit claimed to be appropriate. PERB regulation 61400(a) states, in relevant
part:
An employee organization may file a petition to become the exclusive
representative of an appropriate unit consisting of a group of employees
who are already members
of
a larger established unit represented by an
incumbent exclusive representative by filing a petition for certification in
accordance with the provisions of Article 3 of this Chapter.
The reference to Article 3 includes PERB Regulation 6i210(b), which states:

SF-SV-119-M·
November
5,
2012
Page 4
The petition shall be accompanied by proof
of
at least 30 percent support
of
the employees in the unit claimed to be appropriate. Proof
of
support
is defined in Section 61020
of
these regulations.
Deficiencies in proof of support may not be cured by a filing after the close
of
the window
period. (State
of
Cal~fornia (Department
of
Personnel Administration) (1983) PERB Decision
No. 327-S.)
and	The circumstances
of
the instant petition are as follows. 	The Exclusive Representative 	the
City are parties to a collective bargaining agreement which expires December 31, 2012. 	The
window period for filing a severance petition as to a group
of
employees in the bargaining unit
covered by that collective bargaining agreement was therefore September 3, 2012 through
October
1,
2012.
The instant petition was filed in PERB's San Francisco Regional Office on October 2, 2012,
one day outside the window period. The petition was not accompanied by any proof
of
support. Attached to the petition was a cover letter, stating in part that "[Petitioner has] in our
possession a petition that well exceeds the required
30
percent
of
signatures needed to sever
and modify the proposed unit under PERB regulation 61400 and we request state mediation to
certify those signatures
so
we can move forward with an election." Proof
of
support was
ultimately filed with PERB on October 15, 2012.
the	The petition must be dismissed for two separate but independently sufficient reasons. First,
petition was filed the day after the close
of
the window period as defined at PERB Regulation
61010. PERB strictly enforces the window period requirement. (Alum Rock Union
Elementary School District, supra, PERB Order No. Ad-280.) Therefore, the petition was not
filed in accordance with PERB r=Regulation 61400(b) and must be dismissed.
Second, the petition lacks proof
of
support. As noted above, proof
of
support for the petition
was filed with PERB on October 15, 2012, after the close
of
the window period. PERB
Regulations 61400(a) and 61210(b) require that a severance petition be accompanied by proof
of
support. Even
if
the petition had been timely filed, deficiencies in the proof
of
suppmi were
not corrected until well after the close of the window period. For this reason, the petition must
be dismissed. (State
of
California (Department
of
Personnel Administration), supra, PERB
Decision No. 327-S.)
For the foregoing reasons, the petition is hereby dismissed.
Right of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar days
following the date of service of this decision. 	(PERB Regulation 32360.) To be timely filed,
the original and five (5) copies of any appeal must be filed with the Board itself at the
following address:

SF-SV-119-M
November
5,
2012
Page 5
Public Employment Relations Board
Attention: Appeals Assistant
1031
18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
business	A document is considered "filed" when actually received during a regular PERB 	day.
(PERB Regulations 32135(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. 	(PERB Regulation 32135(b
),
(c) and (d); see also PERB Regulations 32090 and 32130.)
that	The appeal must state the specific issues
of
procedure, fact, law or rationale 	are appealed
appeal will not	and must state the grounds for the appeal (PERB Regulation 32360(c)). An
automatically prevent the Board from proceeding in this case. A party seeking a stay
of
any
activity may file such a request with its administrative appeal, and must include all pertinent
facts and justifications for the request (PERB Regulation 32370).
and
	If
a timely appeal is filed, any other party may file with the Board an original 	five (5)
appeal within ten ( 10) calendar days following the date
of
service of
	copies
of
a response to the
the appeal (PERB Regulation 32375).
Service
all	All documents authorized to be filed herein must also be "served" upon 	parties to the
proceeding and on the regional office. A "proof
of
service" must accompany each copy
of
a
a party or filed with the Board itself (see PERB Regulation 32140 for	document served upon
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. (PERB Regulation 32135(c).)

SF-SV-119-M
November 5, 2012
Page 6
Extension
of
Time
with
	A request for an extension
of
time in which to file an appeal or opposition to an appeal 	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 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 (PERB Regulation 32132).
Sincerely,
Daniel Trump 	.
Regional Attorney
0
DT
cc: 	Genevieve Ng, Attorney
Duane Reno, Attorney