Morongo Basin Transit Authority (PERB A430M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALT SEAL OF THE
MORONGO BASIN TRANSIT AUTHORITY,
Employer,
and
AMALGAMATED TRANSIT UNION
LOCAL 1704,
Petitioner.
Case No. LA-RR-1244-M
PERB Order No. Ad-430-M
Administrative Appeal
December 14, 2015
Appearances: Rutan & Tucker by A. Patrick Munoz, Joseph D. Larsen, and Shawna Mckee,
Attorneys, for Morongo Basin Transit Authority; Neyhart, Anderson, Flynn & Grosboll, A
Professional Corporation by Wan Yan Ling, Attorney, for Amalgamated Transit Union
Local 1704.
Before Martinez, Chair; Winslow and Gregersen, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Morongo Basin Transit Authority (MBTA) of an administrative
determination by PERB's Office of the General Counsel. The administrative determination
granted Amalgamated Transit Union Local 1704's (ATU) representation petition (Petition) for
recognition and certified it as the exclusive representative pursuant to section 3507.1(c) of the
Meyers-Milias-Brown Act (MMBA).' The MBTA contends on appeal that the Office of the
General Counsel erred by ignoring evidence of revocation of authorization cards and purported
evidence that the proof of support filed with the Petition was tainted by misconduct. The
appeal also asserts error in the Office of the General Counsel's refusal to consider two sworn
declarations from employees alleging, respectively, coercion and a misunderstanding of the
effect of his authorization. MBTA urges PERB to reverse the certification and either conduct
1
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MORONGO BASIN TRANSIT AUTHORITY,
Employer,
and
AMALGAMATED TRANSIT UNION
LOCAL 1704,
Petitioner.
Case No. LA-RR-1244-M
Administrative Appeal
PERB Order No. Ad-430-M
December 14, 2015
Appearances: Rutan & Tucker by A. Patrick Mufioz, Joseph D. Larsen, and Shawna McKee,
Attorneys, for Morongo Basin Transit Authority; Neyhart, Anderson, Flynn & Grosboll, A
Professional Corporation by Wan Yan Ling, Attorney, for Amalgamated Transit Union
Local 1704.
Before Martinez, Chair; Winslow and Gregersen, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Morongo Basin Transit Authority (MBTA) of an administrative
determination by PERB's Office of the General Counsel. The administrative determination
granted Amalgamated Transit Union Local 1704' s (ATU) representation petition (Petition) for
recognition and certified it as the exclusive representative pursuant to section 3507.l(c) of the
Meyers-Milias-Brown Act (MMBA). 1 The MBTA contends on appeal that the Office of the
General Counsel erred by ignoring evidence of revocation of authorization cards and purported
evidence that the proof of support filed with the Petition' was tainted by misconduct. The
appeal also asserts error in the Office of the General Counsel's refusal to consider two sworn
declarations from employees alleging, respectively, coercion and a misunderstanding of the
effect of his authorization. MBT A urges PERB to reverse the certification and either conduct
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

an election or an investigation to determine the validity of ATU's proof of support filed with
its Petition.
We have reviewed the entire record in this matter and find that the Office of the
General Counsel's administrative determination was well-reasoned, adequately supported by
the record and in accordance with applicable law. We therefore affirm the Office of the
General Counsel's certification of ATU as the exclusive representative of the petitioned-for
unit in accordance with the following discussion.
FACTUAL BACKGROUND
On June 1, 2015," ATU filed a Petition with PERB pursuant to PERB
Regulation 61000. The Petition sought a unit of "Bus Drivers, Maintenance, Administration/
Support," including "All FT-PT, Seasonal Drivers/Coach Operators, All Maintenance
including Mechanics, and facilities employees Admin/Clerical, Dispatchers, Field Sups.," but
excluding "Managerial employees." The Petition indicated that it included proof of majority
support, but the Petition was not signed. After being informed by the Office of the General
Counsel that the Petition lacked a signature, ATU filed a revised Petition on June 11, signed by
ATU president and business agent, Jeff Caldwell.'
On June 4, the Office of the General Counsel notified the MBTA of the filing of the
Petition and requested a copy of any local rules MBTA had adopted concerning representation
petitions. MBTA verbally confirmed that it had not adopted such local rules.
On June 15, two documents containing collectively 16 employee signatures were filed
with PERB stating the employees opposed the Petition, were not interested in ATU, and did
not support ATU (Opposition Petitions).
2 Hereafter, all dates refer to 2015 unless otherwise noted.
3
The proof of service for this document shows service on the MBTA on June 8.
2
an election or an investigation to determine the validity of ATU' s proof of support filed with
its Petition.
We have reviewed the entire record in this matter and find that the Office of the
General Counsel's administrative determination was well-reasoned, adequately supported by
the record and in accordance with applicable law. We therefore affirm the Office of the
General Counsel's certification of ATU as the exclusive representative of the petitioned-for
unit in accordance with the following disc~ssion.
FACTUAL BACKGROUND
On June 1, 2015,2 ATU filed a Petition with PERB pursuant to PERB
Regulation 61000. The Petition sought a unit of "Bus Drivers, Maintenance, Administration/
Support," including "All FT-PT, Seasonal Drivers/Coach Operators, All Maintenance
including Mechanics, and facilities employees Admin/Clerical, Dispatchers, Field Sups.," but
excluding "Managerial employees." The Petition indicated that it included proof of majority
support, but the Petition was not signed. After being informed by the Office of the General
Counsel that the Petition lacked a signature, ATU filed a revised Petition on June 11, signed by
ATU president and business agent, Jeff Caldwell. 3
On June 4, the Office of the General Counsel notified the MBTA of the filing of the
Petition and requested a copy of any local rules MBTA had adopted concerning representation
petitions. MBTA verbally confirmed that it had not adopted such local rules.
On June 15, two documents containing collectively 16 employee signatures were filed
with PERB stating the employees opposed the Petition, were not interested in ATU, and did
not support ATU (Opposition Petitions).
2 Hereafter, all dates refer to 2015 unless otherwise noted.
The proof of service for this document shows service on the MBT A on June 8.

On June 18, MBTA employee Noemi Adderley (Adderley) faxed a letter to PERB's
Los Angeles Regional Office opposing representation by ATU and stating that although she
had signed an authorization card for ATU, she felt coerced and strong-armed into signing it.
This letter was not signed under penalty of perjury.*
On June 19, MBTA filed an employee list with PERB showing 33 employees in the
proposed bargaining unit.
On June 22, PERB issued a letter informing the parties that the proof of support
submitted with the Petition was sufficient to meet the requirements of PERB regulations, as it
demonstrated that a majority of employees in the proposed bargaining unit authorized ATU to
be their exclusive representative." MBTA was directed to file a written response within
15 days. Because ATU evidenced majority support and no valid competing petition had been
filed, the Office of the General Counsel informed MBTA that recognition must be granted
unless it doubted the appropriateness of the proposed unit.
Also on June 22, a third document containing one employee signature was filed with
PERB stating the employee opposed the Petition, was not interested in ATU, and did not
support ATU. The names on the three Opposition Petitions totaled 17. On the same day, ATU
filed additional proof of support in the form of authorization cards.
* The letter itself does not identify either the employer or ATU by name. It was
accompanied by a facsimile cover sheet sent from an office supply store that did identify
"MBTA" as the "company."
5
The Office of the General Counsel referenced PERB Regulations 61210(b) and 61250
in the letter, both of which apply to petitions for certification by means of an election after a
showing of 30 percent support from the proposed bargaining unit. However, because ATU
submitted proof of majority support with its Petition, and because the Office of the General
Counsel referenced throughout her correspondence with the parties MMBA section 3507.1(c),
requiring an employer to recognize an employee organization based on proof of majority
support, unless it doubted the appropriateness of the proposed bargaining unit, we consider
citation to this regulation an inadvertent error that has no bearing on the resolution of this
appeal.
3
On June 18, MBTA employee Noemi Adderley (Adderley) faxed a letter to PERB's
Los Angeles Regional Office opposing representation by A TU and stating that although she
had signed an authorization card for A TU, she felt coerced and strong-armed into signing it.
This letter was not signed under penalty of perjury. 4
On June 19, MBTA filed an employee list with PERB showing 33 employees in the
proposed bargaining unit.
On June 22, PERB issued a letter informing the parties that the proof of support
submitted with the Petition was sufficient to meet the requirements of PERB regulations, as it
demonstrated that a majority of employees in the proposed bargaining unit authorized ATU to
be their exclusive representative. 5 MBTA was directed to file a written response within
15 days. Because ATU evidenced majority support and no valid competing petition had been
filed, the Office of the General Counsel informed MBT A that recognition must be granted
unless it doubted the appropriateness of the proposed unit.
Also on June 22, a third document containing one employee signature was filed with
PERB stating the employee opposed the Petition, was not interested in ATU, and did not
support ATU. The names on the three Opposition Petitions totaled 17. On the same day, ATU
filed additional proof of support in the form of authorization cards.
4 The letter itself does not identify either the employer or ATU by name. It was
accompanied by a facsimile cover sheet sent from an office supply store that did identify
"MBTA" as the "company."
The Office of the General Counsel referenced PERB Regulations 61210(b) and 61250
in the letter, both of which apply to petitions for certification by means of an election after a
showing of 30 percent support from the proposed bargaining unit. However, because ATU
submitted proof of majority support with its Petition, and because the Office of the General
Counsel referenced throughout her correspondence with the parties MMBA section 3507.l(c),
requiring an employer to recognize an employee organization based on proof of majority
support, unless it doubted the appropriateness of the proposed bargaining unit, we consider
citation to this regulation an inadvertent error that has no bearing on the resolution of this
appeal
3

On July 6, MBTA sent to the Office of the General Counsel a letter including the
June 18 Adderley letter and the three Opposition Petitions." The letter states, in relevant part: .
We are providing this response based on a strong sentiment
provided to MBTA's management by numerous of its employees
to the effect that they are opposed to the Petition. Based upon
information provided by proposed unit employees, MBTA has
serious doubts that the proof of support submitted with the
Petition represents the desires of the majority of proposed unit
employees at MBTA. In light of the level of doubt raised, . . .
combined with MBTA's goal on ensuring its employees' actual
desires (whatever they may be) be implemented, MBTA
respectfully requests that the Board conduct an election . . .
Alternately, MBTA respectfully requests that the Board conduct a
hearing . . . as to the validity of the proof of support filed with the
Petition. . .
MBTA believes that the Opposition Documents . . . are a clear
demonstration that any employees who signed the Opposition
Documents have revoked any previous support of the Petition and
desire not to be represented by ATU.
On July 20, the Office of the General Counsel issued to MBTA an Order to Show
Cause (OSC) "as to why PERB should not certify the petitioner as the exclusive
representative." (OSC, p. 5.) The OSC first noted that MBTA had not disputed the
appropriateness of the proposed bargaining unit in any of its submissions to the Office of the
General Counsel and, that under these circumstances, MBTA was required to recognize ATU
as the exclusive representative, given that there was a sufficient showing of support for ATU's
Petition.
Next, the OSC rejected MBTA's claim that the Opposition Petitions should be treated
as revocations of support based on Antelope Valley Health Care District (2006) PERB
Decision No. 1816-M (Antelope Valley) and State of California (2007) PERB Order
No. Ad-367-S. According to the Office of the General Counsel, "The Authority has not
" The proof of service for this letter shows service on June 6, but the letter is dated July
6, and it was received by PERB on July 7.
On July 6, MBT A sent to the Office of the General Counsel a letter including the
June 18 Adderley letter and the three Opposition Petitions.6 The letter states, in relevant part: .
We are providing this response based on a strong sentiment
provided to MBTA's management by numerous of its employees
to the effect that they are opposed to the Petition. Based upon
information provided by proposed unit employees, MBTA has
serious doubts that the proof of support submitted with the
Petition represents the desires of the majority of proposed unit
employees at MBTA. In light of the level of doubt raised, ...
combined with MBTA's goal on ensuring its employees' actual
desires (whatever they may be) be implemented, MBTA
respectfully requests that the Board conduct an election ...
Alternately, MBTA respectfully requests thatthe Board conduct a
hearing ... as to the validity of the proof of support filed with the
Petition .. .
MBTA believes that the Opposition Documents ... are a clear
demonstration that any employees who signed the Opposition
Documents have revoked any previous support of the Petition and
desire not to be represented by ATU.
On July 20, the Office of the General Counsel issued to MBTA an Order to Show
Cause (OSC) "as to why PERB should not certify the petitioner as the exclusive
representative." (OSC, p. 5.) The OSC first noted that MBTA had not disputed the
appropriateness of the proposed bargaining unit in any of its submissions to the Office of the
General Counsel and, that under these circumstances, MBTA was required to recognize ATU
as the exclusive representative, given that there was a sufficient showing of support for ATU' s
Petition.
Next, the OSC rejected MBTA's claim that the Opposition Petitions should be treated
as revocations of support based on Antelope Valley Health Care District (2006) PERB
Decision No. 1816-M (Antelope Valley) and State of California (2007) P,ERB Order
No. Ad-367-S. According to the Office of the General Counsel, "The Authority has not
6 The proof of service for this letter shows service on June 6, but the letter is dated July
6, and it was received by PERB on.July 7.
4

provided any facts demonstrating that the interested parties-the Authority and ATU-by their
acts or otherwise, have acquiesced or agreed to an arrangement wherein employees may revoke
their support." (OSC, p. 4.)
The OSC also concluded, pursuant to the language of PERB Regulation 61020(f), as	7
follows:
The Authority's assertion that ATU obtained employee
authorization by fraud or coercion is not accompanied by
evidence in the form of declarations under penalty of perjury
supporting such contentions. Moreover, the Authority's response
was not filed within 20 days after ATU filed its petition on
June 1, therefore the response is untimely under PERB
Regulation 61020. Therefore, the Authority has not provided a
basis for PERB to conduct further investigation pursuant to
PERB Regulation 61020.
(OSC, p. 5.)
On August 4, MBTA filed its response to the OSC. Attached to MBTA's response is a
sworn declaration by Adderley, who also signed the Opposition Petition, alleging that she was
coerced and strong-armed into signing ATU's original authorization card. Also attached to
MBTA's response is a sworn declaration by proposed bargaining unit member Rex Watson
(Watson), who also signed the Opposition Petition, alleging that he did not understand the
7
PERB Regulation 61020(f) states, in relevant part:
Any party which contends that proof of employee support was
obtained by fraud or coercion, or that the signatures on such
support documents are not genuine, shall file with the regional
office evidence in the form of declarations under penalty of
perjury supporting such contention within 20 days after the filing
of the petition which the proof of support accompanied. The
Board shall refuse to consider any evidence not timely submitted,
absent a showing of good cause for late submission. When prima
facie evidence is submitted to the Board supporting a claim that
proof of support was tainted by such misconduct, the Board shall
conduct further investigations. If, as a result of such
investigation, the Board determines that the proof of support is
inadequate because of such misconduct, the petition shall be
dismissed.
provided any facts demonstrating that the interested parties-the Authority and ATU-by their
acts or otherwise, have acquiesced or agreed to an arrangement wherein employees may revoke
their support." (OSC, p. 4.)
The OSC also concluded, pursuant to the language of PERB Regulation 61020(£) , as
follows:
(OSC, p. 5.)
The Authority's assertion that ATU obtained employee
authorization by fraud or coercion is not accompanied by
evidence in the form of declarations under penalty of perjury
supporting such contentions. Moreover, the Authority's response
was not filed within 20 ~:lays after ATU filed its petition on
June 1, therefore the response is untimely under PERB
Regulation 61020. Therefore, the Authority has not provided a
basis for PERB to conduct further investigation pursuant to
PERB Regulation 61020.
On August 4, MBTA filed its response to the OSC. Attached to MBTA's response is a
sworn declaration by Adderley, who also signed the Opposition Petition, alleging that she was
coerced and strong-armed into signing ATU's original authorization card. Also attached to
MBTA's response is a sworn declaration by proposed bargaining unit member Rex Watson
(Watson), who also signed the Opposition Petition, alleging that he did not understand the
PERB Regulation 61020(f) states, in relevant part:
Any party which contends that proof of employee support was
obtained by fraud or coercion, or that the signatures on such
support documents are not genuine, shall file with the regional
office evidence in the form of declarations under penalty of
perjury supporting such contention within 20 days after the filing
of the petition which the proof of support accompanied. The
Board shall refuse to consider any evidence not timely submitted,
absent a showing of good cause for late submission. When prima
facie evidence is submitted to the Board supporting a claim that
proof of support was tainted by such misconduct, the Board shall
conduct further investigations. If, as a result of such
investigation, the Board determines that the proof of support is
inadequate because of such misconduct, the petition shall be
dismissed.
5

effect of signing ATU's authorization card and did not want to be part of a union. Watson's
declaration did not allege fraud or coercion by ATU. MBTA stated that "these declarations
and the Opposition Documents are prima facie evidence supporting a claim that the proof of
support filed with the Petition was tainted by misconduct." (MBTA August 4, 2015, Response
to OSC, p. 2.)
Administrative Determination
On August 17, the Office of the General Counsel issued the administrative
determination granting ATU's Petition, issued a "Certification of Representative" along with
the administrative determination and denied MBTA's request for an election or for an
investigation or hearing as to the validity of the proof of support filed with the Petition. The
Office of the General Counsel also rejected the two sworn declarations proffered by MBTA as
evidence of fraud or coercion because MBTA had not shown good cause for their late
submission as required by PERB Regulation 61020(f). The Office of the General Counsel
noted pursuant to PERB Regulation 61275, the following:
If the Board determines (1) an employee organization requesting
recognition has demonstrated at least majority proof of the
employees in an appropriate unit, (2) no other employee
organization has demonstrated proof of support of at least 30
percent of the employees, and (3) the public agency has not
granted recognition, the Board shall certify the petitioner as the
exclusive representative.
The Office of the General Counsel also noted that under MMBA section 3507.1(c),8
PERB must grant recognition unless the employer doubts the appropriateness of the unit. As
8
MMBA section 3507.1(c) states, in relevant part:
A public agency shall grant exclusive or majority recognition to
an employee organization based on a signed petition,
authorization cards, or union membership cards showing that a
majority of the employees in an appropriate bargaining unit
desire the representation, unless another labor organization has
effect of signing ATU's- authorization card and did not want to be part of a union. Watson's
declaration did not allege fraud or coercion by ATU. MBTA stated that "these declarations
and the Opposition Documents are prima facie evidence supporting a claim that the proof of
support filed with the Petition was tainted by misconduct." (MBTA August 4, 2015, Response
to OSC, p. 2.)
Administrative Determination
On August 17, the Office of the General Counsel issued the administrative
determination granting A TU' s. Petition, issued a "Certification of Representative" along with
the administrative determination and denied MBTA's request for an election or for an
investigation or hearing as to the validity of the proof of support filed with the Petition. The
Office of the General Counsel also rejected the two sworn declarations proffered by MBT A as
evidence of fraud or coercion because MBTA had not shown good cause for their late
submission as required by PERB Regulation 61020(f). The Office of the General Counsel
noted pursuant to PERB Regulation 61275, the following:
If the Board determines (1) an employee organization requesting
recognition has demonstrated at least majority proof of the
employees in an appropriate unit, (2) no other employee
organization has demonstrated proof of support of at least 30
percent of the employees, and (3) the public agency has not
granted recognition, the Board shall certify the petitioner as the
exclusive representative.
The Office of the General Counsel also noted that under MMBA section 3507 .1 (c),
PERB must grant recognition unless the employer doubts the appropriateness of the unit. As
MMBA section 3 507 .1 (c) states, in relevant part:
A public agency shall grant exclusive or majority recognition to
an employee organization based on a signed petition,
authorization cards, or union membership cards showing that a
majority of the employees in an appropriate bargaining unit
desire the representation, unless another labor organization has
6

noted by the Office of the General Counsel, MBTA never expressed doubt as to the
appropriateness of the petitioned-for unit.
previously been lawfully recognized as exclusive or majority
representative of all or part of the same unit. . . .
MBTA's Appeal and Request for Stay
On September 1, MBTA filed its administrative appeal, requesting that the Board
reverse the certification of ATU as the exclusive representative of the proposed unit and
conduct an election pursuant to PERB Regulation 61270. Alternatively, MBTA asks that the
Board conduct an investigation pursuant to PERB Regulation 61020(f) or a hearing pursuant to
PERB Regulation 61270 as to the validity of the proof of support filed with the Petition.
MBTA also requested a stay of the administrative determination and related Certification of
Representative pending the appeal pursuant to PERB Regulation 32370.
MBTA urges PERB to consider the sworn declarations by Adderley and Watson,
asserting that they were timely because they were submitted with MBTA's response to the
OSC. MBTA also argues that even if the submission was untimely, good cause was shown for
the late submission pursuant to PERB Regulation 61020(f), because the Opposition Petitions
and Adderley's letter regarding alleged fraud and coercion were submitted directly to PERB by
the respective MBTA employees, and MBTA had no knowledge that those documents would
be rejected until it received PERB's July 20 OSC.
Additionally, MBTA argues that the employees who signed the Opposition Petitions
revoked their support of ATU before PERB made any determination regarding the sufficiency
of proof of support. MBTA also argues that it sufficiently raised issues of appropriateness of
the unit, despite the Office of the General Counsel's statement to the contrary, in that the proof
of support was induced by possible coercion and/or fraud. With the taint of misconduct that
7
noted by the Office of the General Counsel, MB TA never expressed doubt as to the
appropriateness of the petitioned-for unit.
MBT A's Appeal and Request for Stay
On September 1, MBT A filed its administrative appeal, requesting that the Board
reverse the certification of ATU as the exclusive representative of the proposed unit and
conduct an election pursuant to PERB Regulation 61270. Alternatively, MBTA asks that the
Board conduct an investigation pursuant to PERB Regulation 61020(f) or a hearing pursuant to
PERB Regulation 61270 as to the validity of the proof of support filed with the Petition.
MBTA also requested a stay of the administrative determination and related Certification of
Representative pending the appeal pursuant to PERB Regulation 323 70.
MBTA urges PERB to consider the sworn declarations by Adderley and Watson,
asserting that they were timely because they were submitted with MBTA's response to the
OSC. MBT A also argues that even if the submission was untimely, good cause was shown for
the late submission pursuant to PERB Regulation 61020(f), because the Opposition Petitions
and Adderley' s letter regarding alleged fraud and coercion were submitted directly to PERB by
the respective MBTA employees, and MBTA had no knowledge that those documents would
be rejected until it received PERB's July 20 OSC.
Additionally, MBTA argues that the employees who signed the Opposition Petitions
revoked their support of ATU before PERB made any determination regarding the sufficiency
of proof of support. MBTA also argues that it sufficiently raised issues of appropriateness of
the unit, despite the Office of the General Counsel's statement to the contrary, in that the proof
of support was induced by possible coercion and/or fraud. 	With the taint of misconduct that
previously been lawfully recognized as exclusive or majority
representative of all or part of the same unit. ...
7

has surrounded the petitioning process, it is impossible to determine the composition of an
appropriate unit, according to MBTA.
Finally, MBTA argues that the Board showed bias in favor of ATU by, on the one hand,
advising ATU that its original petition was incomplete and instructing it on how to submit a
complete petition, while on the other hand, failing to advise an individual employee that her
letter alleging coercion was deficient because it did not state that it was executed under penalty
of perjury under PERB Regulation 61020(f).
ATU's Opposition to MBTA's Appeal
On September 15, ATU filed its opposition to MBTA's appeal. ATU challenges the
two declarations submitted by MBTA as untimely and asserts that there was no showing of
good cause as required by PERB Regulation 61020(f). ATU further claims the declarations are
implausible on their face.
ATU also challenges the Opposition Petitions on the grounds that no MMBA provision
or PERB regulation authorizes the use of signature revocations, and that the documents contain
signatures from MBTA supervisors and should not be credited. Additionally, ATU argues that
MBTA failed to object to the appropriateness of the petitioned-for unit, and that MBTA's
allegations of PERB's favoritism toward ATU are meritless.
DISCUSSION
The MMBA provides that representation matters shall be determined in accordance
with rules adopted by the public agency. However, in the absence of such local rules,
representation matters must be processed in accordance with PERB's rules. (MMBA
section 3509(a); County of Orange (2010) PERB Decision No. 2138-M, p. 8)
MBTA does not have local rules for representation matters, so we rely on PERB's rules
and precedents in addressing the issues raised by this appeal. These issues are: (1) Did the
8
has surr<-:unded the petitioning process, it is impossible to determine the composition of an
appropriate unit, according to MBTA.
Finally, MBTA argues that the Board showed bias in favor of ATU by, on the one hand,
advising A TU that its original petition was incomplete and instructing it on how to submit a
complete petition, while on the other hand, failing to advise an individual employee that her
letter alleging coercion was deficient because it did not state that it was executed under penalty
of perjury under PERB Regulation 61020(f).
ATU's Opposition to MBTA's Appeal
On September 15, ATU filed its opposition to MBTA's appeal. ATU challenges the
two declarations submitted by MBTA as untimely and asserts that there was no showing of
good cause as required by PERB Regulation 61020(f). ATU further claims the declarations are
implausible on their face.
A TU also challenges the Opposition Petitions on the grounds that no MMBA provision
or PERB regulation authorizes the use of signature revocations, and that the documents contain
signatures from MBTA supervisors and should not be credited. Additionally, ATU argues that
MBTA failed to object to the appropriateness of the petitioned-for unit, and that MBTA's
allegations of PERB's favoritism toward ATU are meritless.
DISCUSSION
The MMBA provides that representation matters shall be determined in accordance
with rules adopted by the public agency. However, in the absence of such local rules,
representation matters must be processed in accordance with PERB' s rules. (MMBA
section 3509(a); County of Orange (2010) PERB Decision No. 2138-M, p. 8)
MBTA does not have local rules for representation matters, so we rely on PERB's rules
and precedents in addressing the issues raised by this appeal. These issues are: (1) Did the
8

Office of the General Counsel err in refusing to consider the two employee declarations
proffered by MBTA as evidence of fraud or coercion; and (2) Did the Office of the General
Counsel err by refusing to consider the Opposition Petitions containing the names of
17 employees in the proposed bargaining unit as evidence of revocation?
Procedural Requirements for a Party to Allege Fraudulent or Coerced Procurement of Proof of
Support
The procedure by which a party (viz., ATU or MBTA)" may challenge proof of support
on the grounds that it was procured by fraud or coercion is set forth in PERB
Regulation 61020(f), which requires a party to file evidence with PERB's regional office in the
form of declarations under penalty of perjury within 20 days after the filing of the Petition
which the proof of support accompanied.
The Office of the General Counsel correctly noted that this regulation prohibits the
Board from considering "any evidence not timely submitted, absent a showing of good cause
for late submission" and that the regulation must be strictly construed. (PERB
Regulation 61020(f).) MBTA's two sworn declarations from Adderley and Watson were filed
by MBTA on August 4, well beyond the 20-day deadline provided for in PERB
Regulation 61020(f). In its August 4 response to the OSC, the MBTA made no effort to
explain why there was good cause for late submission. Therefore, the Office of the General
Counsel did not err in rejecting the late-submitted declarations of Adderley and Watson. In
fact, PERB Regulation 61020(f) left the Office of the General Counsel with no choice but to
refuse to consider them.
"PERB Regulation 61005 defines "Parties" as "the public agency, the employee
organization that is the exclusive or majority representative . . ., any employee organization
known to have an interest in representing any employees as demonstrated by having filed a
pending petition, and/or any group of public employees which has filed a pending petition . . .
pursuant to Government Code Section 3502.5(d) [providing for rescission of agency shop
arrangements] or 3507 [representation petitions filed under local rules]." Individual employees
are not considered parties for purposes of representation matters.
Office of the General Counsel err in refusing to consider the two employee declarations
proffered by MBTA as evidence of fraud or coercion; and (2) Did the Office of the General
Counsel err by refusing to consider the Opposition Petitions containing the names of
17 employees in the proposed bargaining unit as evidence of revocation?
Procedural Requirements for a Party to Allege Fraudulent or Coerced Procurement of Proof of
Support
The procedure by which a party (viz., ATU or MBTA)9 may challenge proof of support
on the grounds that it was procured by fraud or coercion is set forth in PERB
Regulation 61020(±), which requires a party to file evidence with PERB's regional office in the
form of declarations under penalty of perjury within 20 days after the filing of the Petition
which the proof of support accompanied.
The Office of the General Counsel correctly noted that this regulation prohibits the
Board from considering "any evidence not timely submitted, absent a showing of good cause
for late submission" and that the regulation must be strictly construed. (PERB
Regulation 61020(±).) MBTA's two sworn declarations from Adderley and Watson were filed
by MBT A on August 4, well beyond the 20-day deadline provided for in PERB
Regulation 61020(±). In its August 4 response to the OSC, the MBTA made no effort to
explain why there was good cause for late submission. Therefore, the Office of the General
Counsel did not err in rejecting the late-submitted declarations of Adderley and Watson. In
fact, PERB Regulation 61020(±) left the Office of the General Counsel with no choice but to
refuse to consider them.
9 PERB Regulation 61005 defines "Parties" as "the public agency, the employee
organization that is the exclusive or majority representative ... , any employee organization
known to have an interest in representing any employees as demonstrated by having filed a
pending petition, and/or any group of public employees which has filed a pending petition ...
pursuant to Government Code Section 3502.5(d) [providing for rescission of agency shop
arrangements] or 3507 [representation petitions filed under local rules]." Individual employees
are not considered parties for purposes of representation matters.
9

On appeal, MBTA belatedly asserts that its good cause for the late submission was that
it did not know until July 20 that documents submitted by their employees to PERB would be
rejected. This assertion falls short of demonstrating good cause for several reasons. First,
MBTA claims in its response to the OSC, that it learned in June (no precise date given) that
Adderley felt coerced and intimidated into signing the authorization card. It is presumed that
MBTA knew of PERB Regulation 61020(f) and that only "parties" as defined by PERB
Regulation 61005 may file declarations under penalty of perjury in support of a claim that
proof of support was obtained by fraud or coercion, and that such declarations needed to be
filed within 20 days of the filing of the petition for recognition. If Adderley's allegations came
to MBTA's attention after the 20-day deadline, it could have submitted its own sworn
declaration as to when and how it learned of Adderley's allegations in arguing for good cause
to accept the late filing. It made no such effort at the time the declarations were filed with
PERB, and thereby waived its claim for good cause for the late filing.
Nor can MBTA credibly claim that it was surprised by the Office of the General
Counsel's rejection of Adderley's June 18 submission to PERB directly. PERB
Regulation 61020(f) placed MBTA on notice that this submission met none of the regulation's
requirements, since it was not submitted by a party under penalty of perjury. Therefore, we
reject MBTA's belated assertion that it should be excused from a late filing because it did not
know that PERB would reject Adderley's June 18 submission.
Although not directly raised in the appeal, we agree with the Office of the General
Counsel that the Watson declaration did not allege fraud or coercion on its face. On that basis
alone, the Office of the General Counsel was correct in discounting it, regardless of whether it
was timely submitted, which it was not, and regardless of whether MBTA had good cause for
late submission.
10
On appeal, MBTA belatedly asserts that its good cause for the late submission was that
it did not know until July 20 that documents submitted by their employees to PERB would be
rejected. This assertion falls short of demonstrating good cause for several reasons. First,
MBTA claims in its response to the OSC, that it learned in June (no precise date given) that
Adderley felt coerced and intimidated i_nto signing the authorization card. It is presumed that
MBTA knew of PERB Regulation 61020(±) and that only "parties" as defined by PERB
Regulation 61005 may file declarations under penalty of perjury in support of a claim that
proof of support was obtained by fraud or coercion, and that such declarations needed to be
filed within 20 days of the filing of the petition for recognition. If Adderley's allegations came
to MBTA'.s attention after the 20-day deadline, it could have submitted its own sworn
declaration as to when and how it learned of Adderley' s allegations in arguing for good cause
to accept the late filing. It made no such effort at the time the declarations were filed with
PERB, and thereby waived its claim for good cause for the late filing.
Nor can MBTA credibly claim that it was surprised by the Office of the General
Counsel's rejection of Adderley's June 18 submission to PERB directly. PERB
Regulation 61020(±) placed MBTA on notice that this submission met none of the regulation's
requirements, since it was not submitted by a party under penalty of perjury. Therefore, we
reject MBTA' s belated assertion that it should be excused from a late filing because it did not
know that PERB would reject Adderley's June 18 submission.
Although not directly raised in the appeal, we agree with the Office of the General
Counsel that the Watson declaration did not allege fraud or coercion on its face. On that basis
alone, the Office of the General Counsel was correct in discounting it, regardless of whether it
was timely submitted, which it was not, and regardless of whether MBTA had good cause for
late submission.

The Opposition Petitions
MMBA section 3507.1(c) provides what is colloquially known as "card check," i.e., a
requirement that a public agency grant exclusive or majority representation to an employee
organization "based on a signed petition, authorization cards, or union membership cards
showing that a majority of the employees in an appropriate bargaining unit desire the
representation. .. ." (MMBA, $ 3507.1(c).) The purpose of this provision is to establish an
expedited method for certifying an exclusive or majority representative for purposes of
meeting and conferring over wages, hours and terms and conditions of employment. This
procedure expedites the selection of an exclusive representative by obviating the need for an
election unless there is a competing employee organization that submits 30 percent support in
the proposed bargaining unit.
Furthering the purpose of expediting recognition procedures, PERB has held that an
MMBA employer may not refuse to recognize an employee organization that has shown
majority support based on an asserted reasonable doubt that the employee organization has
majority support. (Antelope Valley, supra, PERB Decision No. 1816-M, pp. 9-10.) That is
precisely what the MBTA attempts to accomplish by its appeal in this case-insert its claimed
reasonable doubt of majority support as a reason to deny recognition. Specifically, MBTA
argues that the 17 employees who signed the Opposition Petitions revoked their support for
ATU and such revocations must be honored because they were done before PERB had made
any determination regarding the sufficiency of support. We reject this argument for multiple
reasons.
Although there is nothing in PERB's regulations or in the MMBA that provides for
revocation of authorization cards, our case law permits revocation in certain circumstances
described in Antelope Valley, supra, PERB Decision No. 1816-M. In that case, SEIU
11
The Opposition Petitions
MMBA 	i.e.,	section 3507. l(c) provides what is colloquially known as "card check," 	a
requirement that a public agency grant exclusive or majority representation to an employee
organization "based on a signed petition, authorization cards, or union membership cards
showing that a majority of the employees in an appropriate bargaining unit desire the
representation .... " (MMBA, § 3507.l(c).) The purpose of this provision is to establish an
expedited method for certifying an exclusive or majority representative for purposes of
meeting and conferring over wages, hours and terms and conditions of employment. This
procedure expedites the selection of an exclusive representative by obviating the need for an
election unless there is a competing employee organization that submits 30 percent support in
the proposed bargaining unit.
Furthering the purpose of expediting recognition procedures, PERB has held that an
MMBA employer may not refuse to recognize an employee organization that has shown
majority support based on an asserted reasonable doubt.that the employee organization has
majority support. (Antelope Valley, supra, PERB Decision No. 1816-M, pp. 9-10.) That is
precisely what the MBT A attempts to accomplish by its appeal in this case-insert its claimed
reasonable doubt of majority support as a reason to deny recognition. Specifically, MBTA
argues that the 17 employees who signed the Opposition Petitions revoked their support for
ATU and such revocations must be honored because they were done before PERB had made
any determination regarding the sufficiency of support. We reject this argument for multiple
reasons.
Although there is nothing in PERB' s regulations or in the MMBA that provides for
revocation of authorization cards, our case law permits revocation in certain circumstances
described in Antelope Valley, supra, PERB Decision No. 1816-M. In that case, SEIU
11

requested recognition on the basis of a card check under MMBA section 3507.1(c). This
followed an organizing campaign in which a group of employees circulated cards opposing
SEIU. These cards contained only the words "No Union." The employer also informed
employees how they could revoke earlier authorizations given to SEIU. Prior to SEIU filing
its petition for representation, five employees submitted revocations in accordance with the
employer's instructions. The revocation letters contained the statement: "I hereby revoke the
authorization card which I previously signed for your union."
The State Mediation and Conciliation Service (SMCS) conducted the card check, but
the parties could not agree on whether or how employees could revoke authorization cards, and
stipulated that SMCS could neither rule on the legal effect of the revocations and the "No
Union" cards nor verify majority status of any employee organization. Based on the combined
tally of "No Union" cards and the five revocation letters, the employer refused to recognize
SEIU and the unfair practice litigation ensued.
The Board framed the issue in Antelope Valley, supra, PERB Decision No. 1816-M as
whether the employer unreasonably withheld recognition by subtracting 84 "No Union" cards
from the total of 569 valid SEIU authorization cards, thereby concluding that SEIU lacked
majority support. The Board first noted that MMBA section 3507.1(c) contains no provision
that permits an employer to refuse recognition on the basis that it has a reasonable doubt that
the employee organization has majority support, unlike a provision in the Higher Education
Employment Relations Act (HEERA). 10
The Board then turned to the question of whether the "No Union" cards were the
equivalent to a revocation of authorization. It noted that a revocation of an authorization card
or other proof of support should meet the same requirements as an authorization card to
10
THEERA is codified at Government Code section 3560 et seq. See HEERA
section 3574(a).
12
requeste~ recognition on the basis of a card check under MMBA section 3507.l(c). This
followed an organizing campaign in which a group of employees circulated cards opposing
SEIU. These cards contained only the words "No Union.'' The employer also informed
employees how they could revoke earlier authorizations given to SEIU. Prior to SEID filing
its petition for representation, five employees submitted revocations in accordance with the
employer's instructions. The revocation letters contained the statement: "I hereby revoke the
authorization card which I previously signed for your union."
The State Mediation and Conciliation Service (SMCS) conducted the card check, but
the parties could not agree on whether or how employees could revoke authorization cards, and
stipulated that SMCS could neither rule on the legal effect of the revocations and the "No
Union" cards nor verify majority status of any employee organization. Based on the combined
tally of "No Union" cards and the five revocation letters, the employer refused to recognize
SEIU and the unfair practice litigation ensued.
The Board framed the issue in Antelope Valley, supra, PERB Decision No. 1816-M as
whether the employer unreasonably withheld recognition by subtracting 84 "No Union" cards
from the total of 569 valid SEIU authorization cards, thereby concluding that SEIU lacked
majority support. The Board first noted that MMBA section 3507.l(c) contains no provision
that permits an employer to refuse recognition on the basis that it has a reasonable doubt that
the employee organization has majority support, unlike a provision in the Higher Education
Employment Relations Act (HEERA). 10
The Board then turned to the question of whether the "No Union" cards were the
equivalent to a revocation of authorization. It noted that a revocation of an authorization card
or other proof of support should meet the same requirements as an authorization card to
HEERA is codified at Government Code section 3560 et seq. See HEERA
section 3574(a).
12

determine employee intent not to be represented by the employee organization. In the case of
the "No Union" cards, PERB found that they evinced no statement of intent to revoke a
previous authorization in favor of SEIU. They could not therefore be subtracted from the
SEIU total tally of its valid authorization cards. In contrast, the five revocation letters that
clearly expressed the intent to revoke the previously-signed authorization cards would
therefore be subtracted from the total cards in favor of SEIU. The Board concluded that the
employer unreasonably withheld recognition from SEIU by treating the "No Union" cards as
revocations of SEIU authorization cards.
The facts in the instant case are strikingly similar to those in Antelope Valley, supra,
PERB Decision No. 1816-M. Except for Adderley and Watson, none of the employees whose
signatures appear on the Opposition Petitions establish the requisite intent to revoke a
previously-given authorization. The Petitions read: "WE THE UNDERSIGNED
EMPLOYEES, OPPOSE THE ATTACHED PETITION, WE ARE NOT INTERESTED IN
THE ATU 1704, AND DO NOT SUPPORT THE UNION." For all we can discern, these
signatories may have been employees who have always been opposed to ATU representation
and never signed authorization cards in the first instance. Their signatures on the Opposition
Petitions are the functional equivalent of the "No Union" cards in Antelope Valley. Based on
that case, we conclude that there is no basis for treating the Opposition Petitions as revocations
of authorizations.
Although individual employees in Antelope Valley, supra, PERB Decision No. 1816-M
were permitted to revoke their authorizations where parties had implicitly agreed to a
revocation process, the Office of the General Counsel nevertheless concluded in its OSC that
Antelope Valley does not apply to this case. Instead the Office of the General Counsel relied
13
determine employee intent not to be represented by the employee organization. In the case of
the "No Union" cards, PERB found that they evinced no statement of intent to revoke a
previous authorization in favor of SEID. They could not therefore be subtracted from the
SEID total tally of its valid authorization cards. In contrast, the five revocation letters that
clearly expressed the intent to revoke the previously-signed authorization cards would
therefore be subtracted from the total cards in favor of SEID. The Board concluded that the
employer unreasonably withheld recognition from SEID by treating the "No Union" cards as
revocations of SEID authorization cards.
The facts in the instant case are strikingly similar to those in Antelope Valley, supra,
I
PERB Decision No. 1816-M. Except for Adderley and Watson, none of the employees whose
signatures appear on the Opposition Petitions establish the requisite intent to revoke a
previously-given authorization. The Petitions read: "WE THE UNDERSIGNED
EMPLOYEES, OPPOSE THE ATTACHED PETITION, WE ARE NOT INTERESTED IN
THE ATU 1704, AND DO NOT SUPPORT THE UNION." For all we can discern, these
signatories may have been employees who have always been opposed to ATU representation
and never signed authorization cards in the first instance. Their signatures on the Opposition
Petitions are the functional equivalent of the "No Union" cards in Antelope Valley. 	Based on
that case, we conclude that there is no basis for treating the Opposition Petitions as revocations
of authorizations.
Although individual employees in Antelope Valley, supra, PERB Decision No. 1816-M
were permitted to revoke their authorizations where parties had implicitly agreed to a
revocation process, the Office of the General Counsel nevertheless concluded in its OSC that
Antelope Valley does not apply to this case. Instead the Office of the General Counsel relied
13

on State of California, supra, PERB Order No. Ad-367-S (State of California), which held, in
relevant part:
Because the right to revoke authorization cards was not disputed
in Antelope Valley, it was not necessary for PERB to rule on
whether the Legislature had intended that authorization
signatures could be revoked in all MMBA card checks. PERB's
holding in Antelope Valley that the right to revoke authorization
cards exists is limited to MMBA card checks in which the
interested parties do not dispute the right to revoke or in effect by
their acts acquiesce to such a right.
(Id. at pp. 10-11)
Applying the State of California, supra, PERB Order No. Ad-367-S language, the
Office of the General Counsel concluded that "[the Authority has not provided any facts
demonstrating that the interested parties - the Authority and ATU - by their acts or otherwise,
have acquiesced or agreed to an arrangement wherein employees may revoke their support."
(OSC, p. 4.) We agree. In Antelope Valley, supra, PERB Decision No. 1816-M, the employer
openly informed employees of a procedure they must follow to revoke authorization, and the
union knew of this communication. Yet the union never complained to the employer or to
PERB about the revocation instructions and never argued that employees did not have a right
to revoke authorizations. Such circumstances demonstrate acquiescence in a revocation
procedure. No similar facts are present here. ATU was never placed on notice by the MBTA
that any revocation process was contemplated by MBTA. In ATU's opposition to MBTA's
appeal, it unequivocally asserted that nothing in the MMBA or in PERB regulations authorize
signature revocations and noted that there was no sanctioned method or agreement in this case
on how revocations could occur. For this additional reason, we reject the Opposition Petitions
and the declarations of Adderley and Watson as valid revocations of previously signed
authorization cards.
14
on State of California, supra, PERB Order No. Ad-367-S (State of California), which held, in
relevant part:
Because the right to revoke authorization cards was not disputed
in Antelope Valley, it was not necessary for PERB to rule on
whether the Legislature had intended that authorization
signatures could be revoked in all MMBA card checks. PERB' s
holding in Antelope Valley that the right to revoke authorization
cards exists is limited to MMBA card checks in which the
interested parties do not dispute the right to revoke or in effect by
their acts acquiesce to such a right.
(/d. atpp. 10-11)
Applying the State of California, supra, PERB Order No. Ad-367-S language, the
Office of the General Counsel concluded that "[t]he Authority has not provided any facts
demonstrating that the interested parties - the Authority and ATU 	by their acts or otherwise,
have acquiesced or agreed to an arrangement wherein employees may revoke their support."
(OSC, p. 4.) We agree. In Antelope Valley, supra, PERB Decision No. 1816-M, the employer
openly informed employees of a procedure they must follow to revoke authorization, and the
union knew of this communication. Yet the union never complained to the employer or to
PERB about the revocation instructions and never argued that employees did not have a right
to revoke authorizations. Such circumstances demonstrate acquiescence in a revocation
procedure. No similar facts are present here. ATU was never placed on notice by the MBTA
that any revocation process was contemplated by MBTA. In ATU's opposition to MBTA's
appeal, it unequivocally asserted that nothing in the MMBA or in PERB regulations authorize
signature revocations and noted that there was no sanctioned method or agreement in this case
on how revocations could occur. For this additional reason, we reject the Opposition Petitions
and the declarations of Adderley and Watson as valid revocations of previously signed
authorization cards.
14

Claim of Favoritism by PERB
MBTA claims that the Office of the General Counsel showed favoritism towards ATU
by informing it of the defect in its original petition (viz., a lack of signature) and permitting it
to file an amended petition, while failing to extend a similar courtesy to Adderley, who failed
to sign her June 18 letter "under penalty of perjury" as required by PERB Regulation 61020(f).
MBTA's argument fails on its face because under PERB Regulation 61020(f), it is a
"party" who must file a declaration under penalty of perjury. As Adderley is not a party to this
proceeding, she could do nothing to cure the defect in her filing.
Permitting a party to cure a defect such as a lack of signature on a document that has no
particular timeline for filing does not evince bias. The regulatory scheme in representation
cases favors the petitioner in the more substantive matter of perfecting its showing of support.
PERB Regulation 61240(b) provides that if the initial proof of support is insufficient, "the
Board may allow up to 10 days to perfect the proof of support." If the Board may allow extra
time to submit additional support, it cannot be said that the more innocuous act of informing a
petitioner that the petition lacks a required signature evidences bias.
ORDER
The Office of the General Counsel's administrative determination and Certification of
Representative in Case No. LA-RR-1244-M is hereby AFFIRMED.
Chair Martinez and Member Gregersen joined in this Decision.
15
Claim of Favoritism by PERB
MBT A claims that the Office of the General Counsel showed favoritism towards A TU
by informing it of the defect in its original petition (viz., a lack of signature) and permitting it
to file an amended petition, while failing to extend a similar courtesy to Adderley, who failed
to sign her June 18 letter "under penalty of perjury" as required by PERB Regulation 61020(f).
MBTA's argument fails on its face because under PERB Regulation 61020(£), it is a
"party" who must file a declaration under penalty of perjury. As Adderley is not a party to this
proceeding, she could do nothing to cure the defect in her filing.
Permitting a party to cure a defect such as a lack of signature on a document that has no
particular timeline for filing does not evince bias. The regulatory scheme in representation
cases favors the petitioner in the more substantive matter of perfecting its showing of support.
PERB Regulation 6 l 240(b) provides that if the initial proof of support is insufficient, "the
Board may allow up to 10 days. to perfect the proof of support." If the Board may allow extra
time to submit additional support, it cannot be said that the more innocuous act of informing a
petitioner that the petition lacks a required signature evidences bias.
ORDER
The Office of the General Counsel's administrative determination and Certification of
Representative in Case No. LA-RR-1244-M is hereby AFFIRMED.
Chair Martinez and Member Gregersen joined in this Decision.
15