City of Fremont (PERB A424M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party,
V.
CITY OF FREMONT,
Respondent.
Case No. SF-CE-1204-M
Administrative Appeal
PERB Order No. Ad-424-M
June 12, 2015
Appearances: ·weinberg, Roger & Rosenfeld by Kerianne R. Steele,Attorney, for Service
Employees International Union, Local 1021; Liebert, Cassidy & ·whitmore by Richard
C.
Bolanos, Attorney, and Debra
S.
Margolis, Assistant City Attorney, for City
of
Fremont.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal filed by the City
of
Fremont (City) from an administrative
determination issued by PERB's Office
of
the General Counsel (OGC) on May 9, 2014,
pursuant to the Meyers-Milias-Brown Act (MMBA)1 and PERB Regulation 33002.2 The
administrative determination stayed a representation election (State Mediation and Conciliation
Service (SMCS) Case No. 13-1-450) pending adjudication
of
an unfair practice charge (Case
No. SF-CE-1204-M, related to Case No. SF-CE-1028-M) filed against the City by Service
Employees International Union, Local 1021 (SEIU).
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

The Board has reviewed the record, the administrative determination, and the parties'
respective appeal and response. Based on this review and as explained below, we conclude
that the purposes
of
the MMBA are best served by dissolving the stay
of
election issued on
May 9, 2014, by the OGC in Case No. SF-CE-1204-M, so that the parties may resolve the
pending·question concerning representation pursuant
toan
election agreement in SMCS Case
No. 13-1-450.
We turn now to the procedural history, our factual summary, the administrative ·
determination, the City's appeal from the administrative determination and SEIU's response,
and our discussion
of
the factual and legal issues.
PROCEDURAL HISTORY
On January 30, 2014, following submission in November 2013
of
a decertification
petition by the City
of
Fremont Employees Association (CFEA), the City, SEIU and CFEA
entered into a "Memorandum
of
Agreement For A Representation Election Through the United
States Mail" (Election Agreement) for a representation election.3
On April 30, 2014, SEIU filed with the OGC an unfair practice charge against the City,
which was assigned Case No. SF-CE-1204-M, alleging that the City violated the MMBA by:
3 Under the Election Agreement, the election would be conducted among City
employees in the general bargaining unit by SMCS pursuant
to
PERB Regulation 32999(b).
The Election Agreement provides for posting the notice
of
the election ninety (90) days after
the execution
of
the Election Agreement or within thirty (30) days following the issuance
of
a
decision by PERB in Case No. SF-CE-1028-M, whichever occurs earlier. The Election
Agreement provides for the voter packet to be mailed to eligible voters fourteen (14) days after
the posting
of
the notice, ballots to be received by SMCS no later than the regular mail
delivery on the eighteenth (18th ) day following mailing
of
the voter packet, and ballots to be
counted on the twentieth (20th ) day following the mailing of the voter packet. Under the
Election Agreement, the question to be posed to voters is, "Do you wish to be represented by
SEIU Local 1021, the City of Fremont Employees Association or No Organization?"
2

(1) failing and refusing on December
8,
2013 and January 8, 2014, to respond to SEIU's
information requests made, respectively, on December 4, 2013, and January 6, 2014; (2) failing
and refusing
on
December 12, 2013, to meet and confer with SEIU over a grievance; and
(3) failing and refusing on January 8, 2014, and again on February 26, 2014, to meet and
confer
in
good faith with SEIU over increases in health care costs and premiums. The charge
alleged not only this more recent conduct by the City, but also conduct occurring from
·November 2012 through June 2013, which is the subject
of
a prior charge filed by SEIU Case
No. SF-CE-1028-M.
Also on April 30, 2014, SEIU filed a Request for Stay
of
Election (stay request)
pursuant to PERB Regulation 33002 seeking to "block" the election which is the subject
of
the
Election Agreement.
On May
1,
2014, the City responded to and opposed SEID' s stay request, arguing that
the requested stay was procedurally deficient, made in bad faith and not supported by law. In
addition, the City argued that procedures for challenging the election sought to be stayed
adequately protected SEIU's interests and that in any event SMCS had a contractual obligation
to proceed under the Election Agreement. On May 6, 2014, SEIU replied to and opposed the
City's objections to the stay request.
On May 7, 2014, the City filed its response and position statement regarding the unfair
practice charge in Case No. SF-CE-1204-M.
On May 9, 2014, following an investigation, the OGC issued an administrative
determination, concluding that the stay
of
election was appropriate under PERB
3

Regulation 33002,4 deeming it substantially identical to PERB Regulation 32752.5
On
May 27, 2014, the City filed its appeal from the administrative determination,
urging that the OGC improperly: (1) considered allegations outside
of
the six-month statute
of
limitations period for the charge filed on April 30, 2014; (2) gave undue weight to allegations
already the subject
of
a hearing before, and evidentiary submissions to, a PERB administrative
law judge (ALJ); and (3) failed to conduct an adequate investigation.
On May 30, 2014, SEID responded to and opposed the City's appeal.
4 PERB Regulation 33002, Stay
of
Election, provides:
(a) Any party to an SMCS-conducted election may request that
the Board stay the election pending the resolution
of
an unfair
practice charge relating to the voting unit upon an investigation
and a finding that alleged unlawful conduct would so affect the
election process as to prevent the employees from exercising free
choice.
(b) A request for a stay
of
an election shall be filed with the
appropriate regional office, in accordance with Sections 32075
and 32122. Service and proof
of
service pursuant to
Section 32140 are required.
(c) Any determination to stay an election made by the Board
pursuant to this section may be appealed to the Board itself in
accordance with the provisions
of
Chapter 1, Subchapter 4,
Article 3
of
these regulations.
5 PERB Regulation 32752, Stay
of
Election, provides:
The Board may stay an election pending the resolution
of
an
unfair practice charge relating to the voting unit upon an
investigation and a finding that alleged unlawful conduct would
so affect the election process as to prevent the employees from
exercising free choice. Any determination to stay an election
made by the Board pursuant to this section may be appealed to
the Board itself in accordance with the provisions of Chapter 1,
Subchapter 4, Article 3 of these regulations.
4

FACTUAL SUMMARY
On November 8, 2013, a group
of
unit employees calling itself CFEA petitioned to
decertify "FACE affiliated with SEIU 1021."6
On December 23, 2013, SEIU filed a competing petition, which the City accepted as an
intervention under its Employer-Employee Relations Rules and Regulations.
On January 30, 2014, CFEA, SEIU and the City entered into the Election Agreement,
providing that SEIU, CFEA and No Representative would appear on the ballot in a
representation election to be conducted by the SMCS on the earlier
of
thirty (30) days after
issuance
of
the Board's decision in Case No. SF-CE-1028-M or ninety (90) days after
execution
of
the Election Agreement.
On April 30, 2014, SEIU filed the unfair practice charge in Case No. SF-CE-1204-M
and requested a stay
of
the pending representation election. The charge alleged in substance
that: 
1.	
On December 4, 2013, reciting its status as majority representative, SEIU
requested information from the City concerning the decertification petition. On December 10,
2013, the City responded, challenging SEIU's claim
of
majority status and right to receive the
information pursuant to that status, but acknowledged the City's obligations to respond under
the California Public Records Act.7
2. 	On December 6, 2013, the City responded to a grievance previously filed by SEIU
regarding an ongoing dispute over payment
of
the City's portion
of
contributions to the
CalPERS retirement plan. In its response the City offered to meet and confer with "FACE
affiliated with SEIU 1021" over the issue. The City directed its response both to FACE
6 "FACE" is the Fremont Association of City Employees.
7 Government Code, §§ 6250 et seq.
5

President Shannan Young and to SEIU Field Representative Terry Meadows. On December 8,
2013, by letter to the City, SEIU objected that inviting a FACE representative to participate in
the meet and confer session effectively recognized FACE and displayed unlawful favoritism to
FACE. On December 12, 2013, the City responded that it refused to meet and confer with
SEIU absent FACE, because it deemed FACE to be the recognized majority representative.
3. 	On January 6, 2014, SEIU requested information from the City regarding health
benefit plans for general bargaining unit employees and requested to meet and confer over such
plans. On January 8, 2014, the City informed SEIU that it would consider meeting and
conferring over a successor memorandum
of
understanding, but only
if
SEIU and FACE could
agree on a lead negotiator and structure for bargaining.
4. 	On.February 20, 2014, SEIU requested in writing that the City meet and confer
over increases to unit employee health care premiums and costs. On February 26, 2014, the
City responded that it recognized "FACE affiliated with SEIU 1021" as the "status quo
representational relationship," and that bargaining requests should be processed through
FACE.
5. 	The foregoing conduct constitutes a continuation
of
conduct commenced in
January 2013 and alleged in Case No. SF-CE-1028-M.
On May 9, 2014, the OGC issued an administrative determination to stay the pending
election. The City filed an appeal, which SEIU opposed.
ADMINISTRATIVE DETERMINATION
The OGC began its analysis with PERB's recently-adopted PERB Regulation 33002
which applies to elections conducted by SMCS. Noting the similarity to PERB
Regulation 32752, the OGC construed PERB Regulation 33002 as articulating the same policy,
to wit, the Board's blocking charge rule, which the OGC then reviewed.
6

As articulated by the OGC, PERB
's
blocking charge rule operates to stay an election in
circumstances in which the employees' dissatisfaction with their representative is in all
likelihood attributable to the employer's unfair practices rather than to the exclusive
representative's failure to respond to and serve the needs
of
the employees it represents. When
investigating a stay request under the rule, noted the OGC, the ultimate question is whether the
conduct alleged is
of
such a character and seriousness that,
if
it were proven to have occurred,
it would be reasonable to infer that it would contribute to employee dissatisfaction and hence
prevent a fair election. In making this assessment, the motive
of
the employees filing a
decertification petition is not determinative; rather, the determining factor is whether the
alleged unlawful conduct would so affect the election process as to prevent employees from
exercising free choice, viz., whether there is a substantial risk that the election outcome will be
affected by conduct that is alleged to be an unfair practice when that conduct is the subject
of
an unfair practice proceeding still pending before the Board.
The OGC next reviewed SEIU's charge allegations, concluding they were inextricably
intertwined with allegations in Case No. SF-CE-1028-M, as they focused on the City's
continuing refusal to recognize SEIU as exclusive representative, and that for the purpose
of
the OGC's analysis the charge allegations must be accepted as true.
The OGC next noted that the City did not dispute SEIU's allegation that the City
declined to recognize SEIU as exclusive representative, and that when considered in tandem
with allegations in Case No. SF-CE-1028-M, it appeared that on and after February 1, 2013,
the City had refused to recognize, and to bargain with, SEIU as exclusive representative of the
. bargaining unit.
The OGC next reasoned, based on the foregoing, that the conduct alleged, withdrawing
recognition from SEIU, and refusing to treat with SEIU without involvement of FACE, raised
7

a substantial risk that the election process would be affected so as to prevent employees from
exercising free choice.
Finally, the OGC considered and rejected the City's arguments opposing the stay.
APPEAL AND RESPONSE
The City appeals the administrative determination granting the stay
of
election,
contending: the OGC failed to conduct a sufficient investigation; the OGC acted improperly
by considering allegations outside
of
the limitation period; and the OGC ignored factual
findings and legal conclusions made by the ALJ
in
the proposed decision in Case
No. SF-CE-1028-M.
SEIU responds that: the test is whether the OGC abused its discretion; it did not, since
the investigation was sufficient; and the facts alleged in the charge in Case No. SF-CE-1204-M
reasonably support the
OGC's
conclusion; PERB Regulation 33002 applies to the election
based on the parties' Election Agreement; and the City's reliance on the proposed decision in
Case No. SF-CE-1028-M is misplaced as the proposed decision is on appeal and not final, and
thus lacks force or effect.
DISCUSSION
We have determined to dissolve the stay. We explain.
The underlying dispute in this matter remains undecided by the Board. In Case
No. SF-CE-1028-M, the Board is still considering the dispute among the parties regarding the
status
of
SEIU vis-a-vis City employees in the general bargaining unit. In the interim, SEIU
and the City became parties to the Election Agreement which arose out
of
a valid
decertification petition.
SEIU signed off on the Election Agreement on January 30, 2014. At that time, SEIU
was aware
of
the City's refusals in December 2013 and January 2014 to provide SEIU
8

information, to discuss with SEIU a grievance and to meet and confer with SEIU over
employee health care costs and premiums. The City justified these refusals on the ground that
SEIU was not the exclusive representative
of
the City's general bargaining unit.
We conclude on these facts that the determination
by
the OGC to stay the election
called for in the parties' Election Agreement was improvident. We explain.
On January 30, 2014, when it agreed to the election, SEIU had before it fresh evidence
from December 2013 and January 2014 that the City still would not recognize it as the
exclusive representative
of
employees in the City's general bargaining unit. Were it concerned
on January 30, 2014, that the City's continuing refusals to recognize it as exclusive
representative would render impossible a fair representation election, SEIU could have
declined to have entered into the Election Agreement. It did not decline: Instead, SEIU
entered into the Election Agreement, thereby assuming the risk that the Election Agreement
would be enforced according to its terms, to wit, not later than April 30, 2014. The City's
conduct forming the basis
of
SEIU' s stay request includes City conduct alleged in Case
No. SF-CE-1028-M and the December 2013 and January 2014 allegations made in Case
No. SF-CE-1204-M. Only one instance
of
City conduct cited as the basis for the stay is
alleged to have occurred after January 30, 2014.
9

Moreover, we conclude on these facts8 that SEID is estopped by its agreement to the
election to seek a stay based on City conduct known to SEID at the time it made the Election
Agreement. (Lake Elsinore Union School District (1984) PERB Decision No. 441; Santa Ana
Unified School District (2013)PERB Decision No. 2332.) The Election Agreement terms are
clear, viz., the election is to be conducted by SMCS within the earlier
of
ninety (90) days from
January 30, 2014, or thirty (30) days from issuance by the Board
of
a decision in Case
No. SF-CE-1028-M. The agreement resolved the issue
of
the date
of
the election. We are
disinclined to interfere with the date
of
an election established via the written Election
Agreement, absent proof that circumstances that arose subsequent to the agreement's creation
and prior to the request for stay require it. The single allegation arising after January
30-that
the City insisted on February 26, 2014, that bargaining requests be processed through
FACE-
does not support an inference that employee dissatisfaction with the incumbent union is
attributable to the City's alleged unfair practices.
For these reasons, we dissolve the stay
of
election issued on May 9, 2014, and direct the
parties to proceed to the representation election pursuant to their agreement
of
January 30,
2014, in SMCS Case No. 13-1-450.
8 SEID also alleged in support of its stay request a single instance
of
City conduct
occurring after January 30, 2014. This allegation that the City declined on February 26, 2014,
SEIU's follow-up request to bargain over health care costs and premiums made on
February 20, 2014, merely restates the same request and refusal made respectively on
January 6, 2014 and January 8, 2014. Thus, as of January 30, 2014, SEID was aware that the
City was refusing to meet and confer over health care costs and premiums and the reasons
therefor. SEID's February 20, 2014, request to bargain and the City's February 26, 2014,
refusal are not new matters, but a "second request" and a "second response" on an issue
previously known to SEID as of January 30, 2014, when it voluntarily entered into the Election
Agreement.

ORDER
The Stay
of
Election issued on May 9, 2014, by the Office
of
the General Counsel
of
the Public Employment Relations Board is hereby DISSOLVED EFFECTIVE
IMMEDIATELY and the parties to State Mediation and Conciliation Service Case
No. 13-1-450 are DIRECTED to proceed immediately to the representation election pursuant
to their Election Agreement
of
January 30, 2014.
Chair Martinez and Members Winslow and Banks joined in this Decision.
11