Central Basin Municipal Water District (PERB A486M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CENTRAL BASIN MUNICIPAL WATER
DISTRICT,
Employer,
and
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 1902,
Petitioner.
Case No. LA-RR-1296-M
Administrative Appeal
PERB Order No. Ad-486-M
March 24, 2021
Appearances: Baker, Keener & Nahra by Derrick S. Lowe, Attorney, for Central Basin
Municipal Water District; Rothner, Segall & Greenstone by Eli Naduris-Weissman,
Attorney, for American Federation of State, County & Municipal Employees, Local
1902.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This representation case is before the Public Employment
Relations Board (PERB or Board) on appeal by Central Basin Municipal Water District
from an administrative determination by PERB’s Office of the General Counsel (OGC).
American Federation of State, County, and Municipal Employees, Local 1902
(AFSCME) seeks to become the exclusive representative of the District’s non-
managerial employees, and AFSCME therefore filed with PERB a petition for

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recognition (Petition) pursuant to PERB Regulation 61215 and Government Code
section 3507.1, subdivision (c) of the Meyers-Milias-Brown Act (MMBA).1
In the administrative determination, OGC determined that: (1) AFSCME
submitted proof of support from a majority of employees in the proposed bargaining
unit; (2) no other employee organization demonstrated at least 30 percent proof of
support; (3) the District did not dispute that the proposed unit was appropriate; and (4)
the District had not granted recognition. Accordingly, OGC certified AFSCME as the
proposed unit’s exclusive representative under PERB Regulation 61275.
On appeal, the District asserts that OGC abused its discretion in determining
AFSCME proved that it enjoyed majority support. The District primarily argues that
OGC issued the administrative determination prematurely, thereby depriving it of an
opportunity to “fully submit all of the evidence in support of its position.” The District
asks us to consider five employee declarations it submitted to PERB for the first time
with its appeal. Based on these declarations, the District urges us to reverse the
certification and direct OGC to conduct an evidentiary hearing to determine the validity
of the proof of support AFSCME filed with its Petition.
Having reviewed the entire record in this case and considered the parties’
arguments, we deny the District’s appeal and affirm the administrative determination.
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all statutory references herein are to the Government Code.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

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BACKGROUND
On July 2, 2020,2 AFSCME filed its Petition seeking recognition as the
exclusive representative of a proposed unit of all District non-managerial employees.3
Together with its Petition, AFSCME submitted proof of support in the form of signed
authorization cards.
On July 6 and July 21, OGC sent letters to the District asking whether the
District had adopted local rules covering a petition for recognition. OGC also left
voicemail messages for the District’s then Board President Robert Apodaca and then
Director of Administration and Board Services Cecilia Pulido, as well as in the
District’s general voicemail message box. OGC received no responses to these
inquiries.
On July 29, 2020, OGC forwarded its prior letters to the District’s then Director
of Human Resources, Naja Braddock, who subsequently notified OGC that the District
had a new Board President, Leticia Vasquez, as of approximately July 23. Braddock
also stated that Pulido had forwarded OGC’s July 6 letter to Vasquez. On August 4,
OGC spoke with Vasquez and District Board member Martha Camancho-Rodriguez.
Neither was able to report whether the District had applicable local rules.
2 All dates refer to 2020, unless otherwise specified.
3 The proposed unit is described as “all non-managerial employees of the
Central Basin Municipal Water District, including the Conservation Manager, Deputy
Board Secretary/Senior Procurement Analyst, Senior Accountant, Recycled Water
Development Specialist, Assistant Engineer, Administrative Clerk, Management
Analyst, Public Affairs Specialist, Public Safety Officers, [and] Accounting Specialist.”
The proposed unit excludes managerial employees.

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By letter dated August 6, OGC notified the parties that PERB would process the
Petition because the District had failed to provide information indicating whether it had
applicable local rules. OGC’s August 6 letter directed that the District must: (1) within
10 days provide employees with the Notice of Representation Petition (Notice) and a
copy of the Petition; (2) file with PERB a written statement describing when and how it
provided employees with the Notice and Petition; (3) within 20 days file with PERB a
list of all individuals employed in the proposed unit as of the last date of the payroll
period immediately preceding the Petition; and (4) file a Notice of Appearance form
identifying a designated representative for service.
Having not heard from the District as of August 19, OGC e-mailed the parties
and attempted to obtain the responses the District was required to provide. OGC also
called the general phone number for the District and learned that the District had a
newly appointed General Manager, Alejandro Rojas. On August 20, OGC e-mailed
Rojas, notifying him that the District needed to comply with the requirements set forth
in OGC’s August 6 letter.
On August 27, the District provided its non-managerial employees with the
Notice and sent OGC a list of these employees. On September 1, the District sent
OGC an amended list of employees in the proposed unit and provided these
employees with a copy of the Petition.
At no time did PERB receive a competing petition from any other union seeking
to represent any of the employees in the proposed unit.
On September 25, pursuant to PERB Regulation 61240, subdivision (c), OGC
sent the parties a letter indicating that the proof of support submitted with the Petition

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demonstrated that a majority of unit employees had authorized AFSCME to be their
exclusive representative. OGC explained that it made this determination by comparing
the signed authorization cards AFSCME submitted in July with the list of employees
the District had provided. Because AFSCME submitted evidence of majority support
and no valid competing petition had been filed, OGC informed the District that, unless
it had a good faith doubt that the unit was appropriate, it must recognize AFSCME as
the unit’s exclusive representative. OGC directed the District to respond within 15
days.
OGC received no timely response to the September 25 letter. Instead, on
October 13, Rojas orally informed OGC that the District did not oppose the proposed
unit and wished to recognize AFSCME as exclusive representative. Rojas followed up
later that day with an e-mail message to the parties and OGC, stating in relevant part:
“The District does not object to the appropriateness of the
unit described in the petition and will place an item on the
agenda for the October 26, 2020 Board meeting to
recognize AFSCME, Local 1902 as the exclusive
representative for the unit of employees described in the
petition. As General Manager, I will recommend to the
Board members that it recognize AFSCME, Local 1920 as
exclusive representative.”
On October 19, the District abruptly reversed course. Rojas sent an e-mail to
the parties and OGC, stating that a “proper vote” was not taken to decide if employees
wanted to be represented by AFSCME. Rojas’s October 19 e-mail also stated that a
majority of employees did not want to be represented by AFSCME and would not join
AFSCME. OGC informed Rojas that, per the September 25 letter, AFSCME had

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demonstrated majority support, and that, in any event, the deadline for the District to
object had elapsed.
The District’s Board of Directors met on October 26, considered whether to
recognize AFSCME as the exclusive representative of the proposed unit, and declined
to do so.
On November 2, OGC issued an Order to Show Cause (OSC), placing the
burden on the District to demonstrate any reason “why AFSCME should not be
certified as exclusive representative of the claimed unit.” The OSC further directed as
follows:
“Factual assertions must be supported by declarations
under penalty of perjury by witnesses with personal
knowledge and should indicate that the witness, if called,
could competently testify about the facts asserted. If the
facts asserted are reliant on a writing, the writing must be
attached to the declaration and authenticated therein. Legal
argument and supporting materials must be filed with
[OGC] no later than November 20, 2020.”
(Emphasis in original.) The OSC concluded: “Upon receipt of the District’s argument
and factual assertions, or the expiration of the time allowed for same,” OGC would
contact the parties regarding “further case processing steps.”
On November 12, Rojas filed with PERB a letter titled “Response to Order to
Show Cause” (Response) together with two e-mail attachments and a proof of service.
In the Response, Rojas wrote that on November 9 he had met with five employees in
the proposed unit “to confirm whether a proper authorization vote had been taken.”
Rojas alleged that AFSCME lacked majority support because only five employees
returned authorization cards out of eleven eligible employees, two employees did not

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return original copies of their authorization cards, and employee Lucia Cid-Sanchez
requested to be removed from AFSCME on October 15, 2020. The District’s
Response did not include any declarations and thereby failed to meet the OSC’s
requirement that the District support all allegations and authenticate all exhibits with
sworn declarations from witnesses with personal knowledge.
A week later, on November 19, OGC issued its administrative determination
concluding that, pursuant to PERB Regulation 61275, it must certify AFSCME as the
exclusive representative of the proposed unit. OGC found, inter alia, that: (1) the
District did not challenge unit appropriateness; (2) the District had waived its
opportunity to challenge AFSCME’s proof of support by failing to comply with PERB
Regulation 61020, subdivision (f), which required any party seeking to challenge proof
of support to file evidence via sworn declarations within 20 days after the petitioning
party had filed its representation petition and proof of support; and (3) even if the
District had timely challenged AFSCME’s proof of support, it had not provided sworn
declarations supporting its contentions. Because AFSCME demonstrated majority
support within the proposed unit and the District did not dispute unit appropriateness,
OGC certified AFSCME as the unit’s exclusive representative.
OGC electronically served the administrative determination on November 19, at
3:36 p.m. Rojas responded to OGC’s e-mail shortly thereafter, at 5:07 p.m., as follows:
“I apologize that I didn’t let you know sooner (because I
assumed we had until November 20, 2020 to submit our
documents) but we are collecting our sworn declarations
and we’re going to submit before the 20 th as an amendment
to our initial response.

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“We will file an appeal and the employees would also like to
submit a decertification too.”
The District did not supplement its November 12 Response with sworn declarations
before November 20, nor did it otherwise amend its Response. Rather, when the
District filed the instant appeal on December 11, it provided PERB for the first time
with five employee declarations, all of which were executed on December 4.
DISCUSSION
Under the MMBA, a union seeking to exclusively represent an employee group
constituting an appropriate unit may petition for an election. (§ 3507.1, subd. (a).) The
union alternatively may require the employer to abide by the results of a “card check”
in which a neutral third party determines if the union has collected sufficient proof of
support from employees to demonstrate a majority within the unit, though this option is
unavailable if another union already exclusively represents the unit or can
demonstrate at least 30 percent support in the unit. (Id., subd. (c).) The statutory card
check provision established an expedited method for certifying an exclusive
representative for purposes of meeting and conferring over wages, hours and terms
and conditions of employment. (Morongo Basin Transit Authority (2015) PERB Order
No. Ad-430-M, p. 11 (Morongo).)
The MMBA grants local public agencies the authority to adopt reasonable rules
concerning recognition of unions and specified other topics, “after consultation in good
faith with representatives of a recognized employee organization or organizations.”
(§ 3507, subd. (a).) However, if an agency has not adopted a reasonable local rule on
a particular representation issue, PERB Regulations fill the gap. (§ 3509, subd. (a);
Morongo, supra, PERB Order No. Ad-430-M, p. 8; County of Siskiyou/Siskiyou County

9
Superior Court (2010) PERB Decision No. 2113-M, p. 17.) Here, OGC correctly
determined that PERB Regulations govern, as neither party indicated that the District
adopted reasonable local rules on any relevant topic.
PERB Regulation 61275, which effectuates the MMBA’s card check procedure
for employers that have not adopted a reasonable card check rule, provides as
follows:
“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.”
In reviewing a Board agent’s proof-of-support determination, we apply an
abuse-of-discretion standard. (Children of Promise Preparatory Academy (2013)
PERB Order No. Ad-402, p. 13 (Children of Promise I).) The District argues that OGC
abused its discretion by issuing its administrative determination on November 19,
rather than waiting until November 20, when the District allegedly intended “to
complete its evidentiary submissions.” The District further contends that the
declarations attached to its appeal warrant reversal of the administrative determination
and a direction to OGC to hold an evidentiary hearing.
As explained below, the District waived its position at several earlier junctures
and now raises untenable procedural arguments as to why we should consider
declarations it submitted for the first time with its appeal. In the alternative, even were
it appropriate to consider these declarations, they would not show that OGC abused
its discretion in its proof of support determination.

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I. 	The District Repeatedly Waived its Position, and the Declarations Submitted
with Its Appeal Are Procedurally Improper.
When AFSCME filed its Petition—and at all relevant times thereafter—PERB
Regulations covering proof of support were dispersed, with largely similar language
appearing in disparate provisions applicable to the various labor relations acts we
enforce. Regulation 61020 was among those dispersed regulations and applied to
MMBA petitions for recognition in the absence of a reasonable local rule. Effective
February 15, 2021, well after all events giving rise to this dispute, PERB consolidated
all proof of support regulations into revised Regulation 32700. Thus, while
Regulation 32700 now governs proof of support under the MMBA, we analyze this
case under former Regulation 61020.
PERB Regulation 61020, subdivision (f) established a 20-day deadline for the
District to provide evidence challenging AFSCME’s proof of support, and the
regulation prohibited OGC from considering a tardy challenge, absent good cause.
The Board strictly construes this requirement. (Morongo, supra, PERB Order No. Ad-
430-M, p. 9.) The 20-day deadline elapsed at close of business on July 22, and the
District never sought or obtained a good cause finding for any delay beyond that point,
much less for delaying all the way until December 11, when it ultimately filed its first
evidence regarding proof of support. The District’s failure to challenge AFSCME’s
proof of support by July 22 constitutes the first of several times it waived the position it
now asserts.
By letter dated September 25, OGC notified the parties that AFSCME had
demonstrated majority support and therefore, since no valid competing petition had
been filed, PERB would grant the Petition unless the District responded within 15 days

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and asserted a good faith doubt that the unit was appropriate. The District failed to
assert any such doubt, either within the 15-day period or at any time, thereby waiving
any challenge to unit appropriateness. (Regents of the University of California (1998)
PERB Decision No. 1261-H, pp. 35-36 [employer that does not dispute the
appropriateness of a proposed unit, after having been provided an opportunity to do
so, waives any argument that the unit is inappropriate].)4
On October 13, Rojas orally told OGC that the District had no objection to the
unit and wished to recognize AFSCME. And in an e-mail later that day, Rojas wrote
that the District did not object to the appropriateness of the unit, and that he would
recommend that the District’s Board formally recognize AFSCME at its October 26
meeting.
As noted above, Rojas espoused a contrary position just six days later, claiming
that a “proper vote” had not occurred. This argument was procedurally untenable
given the District’s several waivers, and it was substantively wrong as well, since the
MMBA permitted AFSCME to choose whether it wished to petition for an election or to
use the MMBA’s card check option. Because OGC had already determined that
AFSCME demonstrated majority support, and the District had not challenged unit
appropriateness, the District was obligated to recognize AFSCME as the exclusive
4 The District claims on appeal that the administrative decision erred when it
found that the District did not dispute unit appropriateness. However, the District’s
argument on appeal relates solely to its claim that AFSCME lacked proof of support;
the District does not challenge the composition of the unit. We therefore cannot
construe the appeal as challenging unit appropriateness, and, in any event, the District
has waived any such challenge.

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representative of the proposed unit; and when the District failed to do so, OGC was
required to certify AFSCME. (§ 3507.1, subd. (c); PERB Reg. 61275.)
As a final step before certifying AFSCME, OGC issued the OSC, which
explicitly required the District to support all allegations and authenticate all exhibits
with sworn declarations from witnesses with personal knowledge. The District did not
submit any sworn declarations by the November 20 deadline. Rather, on November 12
the District made several unverified assertions regarding proof of support issues,
including suggestions that it knew whether each unit employee had signed an
authorization card and, if so, in what manner the employee signed and returned the
card.5 The District then claimed: “As of November 10, 2020 there are no current
District employees who wish to be represented by a union and their current decision
not to join AFSCME would most certainly lead to the immediate disbandment of the
unit.”6
5 Rojas claimed to have discovered “new evidence” when “meeting with all
current District employees” on November 9 “to confirm whether a proper authorization
vote had been taken,” although Rojas raised similar concerns about “a proper vote” in
an October 19 e-mail to OGC and AFSCME. While it appears possible that Rojas
unlawfully asked employees about their protected activities, no such allegation is
before us and we make no such finding.
6 To the extent the District suggests that decertification is an appropriate
procedure for employees who have changed their mind, that is mainly correct.
However, a decertification petition cannot be filed in at least the first year after
recognition or certification (§ 3507, subd. (b)), and no decertification election is
possible if unfair practices prevent a fair election from proceeding. (Children of
Promise Preparatory Academy (2018) PERB Order No. Ad-470, pp. 5-6.) Because
employer unfair practices can make it impossible to hold a decertification election, a
clear lesson emerges: an employer concerned about employees’ ability to decertify a
union will maximize that ability by refraining from unfair practices.

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When OGC issued the administrative determination on November 19, a week
after the District’s Response, the District objected. According to the District, OGC
“mistakenly interpreted” its November 12 Response as its “last submission” and then
prematurely issued the administrative determination on November 19. In support of its
position, the District asks us to consider Rojas’s e-mail to the Board agent on
November 19 at 5:07 p.m., approximately 90 minutes after OGC served him with the
administrative determination. As noted above, Rojas’s e-mail stated, in pertinent part,
that “we are collecting our sworn declarations and we’re going to submit before the
20 th as an amendment to our initial response.”
The District ignores that the OSC had stated that OGC would contact the
parties about next steps either “[u]pon receipt of the District’s argument and factual
assertions, or the expiration of the time allowed for same.” While OGC left unsaid
whether it meant the earlier or later of these two eventualities, it is difficult to construe
the above phrasing to mean the later of the two dates, since the District had no right to
file a response at any point past the deadline. OGC reasonably construed its letter to
mean the earlier of the two and reasonably believed that it had received “the District’s
argument” when it received the November 12 letter titled “Response to Order to Show
Cause,” which was signed by Rojas and included a proof of service. Moreover, in his
November 19 e-mail, Rojas admits that he did not warn OGC that the District’s
Response would come in two parts. Such an unusual approach would, moreover,
have meant that the District’s argument contained no references to its declarations.
In any event, the District never followed through and submitted the declarations
on November 20, as Rojas promised in his November 19 e-mail, thereby waiving its

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position yet again. Indeed, not only did the District not submit its declarations until
December 11, concurrently with the instant appeal, but the declarations are dated
December 4, further undermining the District’s argument. The likely inference is that
the District did not realize its mistake until it received the administrative determination
on November 19 and at that point began trying to obtain declarations. The District’s
November 19 claim that it would file declarations the next day, as well as its current
claim that the administrative determination somehow precluded it from doing so, thus
have all the markings of bad faith litigation tactics, though no such allegation is before
us and we do not make any such finding. Indeed, irrespective of whether the District
engaged in bad faith conduct, it remains the case that declarations submitted on
December 11 did not satisfy the November 20 deadline.
Where good cause is shown, we may reopen the record and consider new
evidence on appeal. (Santa Clara County Superior Court (2014) PERB Decision
No. 2394-C, p. 17 [good cause to reopen the record generally requires showing that
evidence was not previously available, could not have been discovered earlier with
reasonable diligence, was submitted within a reasonable time of its discovery, and is
relevant to the issues in a manner that may materially impact the decision].) The
present circumstances do not satisfy these conditions, and we decline to reopen the
record.
For the foregoing reasons, the District’s appeal asserts a position it has
repeatedly waived, and the five declarations the District attached to its appeal are not
properly before us.

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II. 	Even if the District Had Not Waived Its Position and Had Properly Introduced
the Five Employee Declarations into the Record, these Declarations would Not
Warrant Reversing the Administrative Determination.
The five employee declarations the District filed with its appeal fall into two
categories. In one declaration, Lucia Cid-Sanchez purports to revoke her authorization
for AFSCME to represent her as of December 4, the date of her declaration. In the
four other declarations, non-managerial employees state: “Contrary to any
representation of AFSCME, I have never agreed to allow AFSCME to represent me or
act on my behalf in any matter and do not do so at this time.” If these five declarations
were credited, the District argues, AFSCME could not show support from six unit
employees, as is required to show majority support in a 10-employee or 11-employee
bargaining unit.7
Even had the District filed the declarations by November 20, they would not
constitute cause to hold an evidentiary hearing. First, the District had already waived
any challenge to AFSCME’s proof of support, and the District has never sought or
obtained relief from that waiver. Moreover, neither the single purported revocation nor
anything found in the other four declarations raises material issues of fact that would
necessitate an evidentiary hearing. We explain.
7 The Petition states there are 10 employees in the proposed unit and lists 10
titles for inclusion. The District’s appeal also states there are 10 employees in the
proposed unit. The District’s November 12 Response, in contrast, claims that there are
11 members in the proposed unit. The September 1 employee list provided by the
District, which would provide the true number of eligible employees on July 2, is not in
evidence. In any event, whether there were 10 or 11 employees in the proposed unit
during the payroll period immediately preceding the Petition filing, AFSCME would
need at least six employees to show majority support.

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In determining whether a petitioner has achieved a majority (or a lower level of
support, as applicable in other contexts), OGC assesses proof of support based on an
employee list as the date the petition was filed and, correspondingly, employee
support or lack thereof as of the same date. (Regents of the University of California
(2017) PERB Order No. Ad-453-H, p. 21 and adopted administrative determination at
p. 5; Children of Promise I, supra, PERB Order No. Ad-402, p. 14.) For that reason,
even assuming solely for the sake of argument that revocations were permitted in the
present circumstances (see Morongo, supra, PERB Order No. 430-M, p. 14), the
potential revocation from Cid-Sanchez would still be irrelevant as a matter of law since
it postdated July 2.8
The signatories of the remaining four declarations, far from alleging that they
signed cards because of fraud or coercion (see Morongo, supra, PERB Order
No. 430-M, p. 10), do not claim that they ever signed authorization cards. There is
therefore no basis to consider their declarations as potentially revoking authorizations
or subtracting from AFSCME’s proof of support. (Id. at p. 13.) Rather, at best, these
declarations would show that four employees did not authorize AFSCME to represent
them, facts which, even if true, would not call into question OGC’s determination that
AFSCME submitted valid proof of support from six employees.9
8 The District’s November 12 Response claimed that Cid-Sanchez purported to
revoke her authorization on October 15 and included an unverified e-mail to that
effect. Curiously, that e-mail is not attached to Cid-Sanchez’s December 4 declaration.
In any event, the purported revocation would not be effective whether it was tendered
October 15 or December 4.
9 Although the District’s unverified November 12 Response suggested that two
authorization cards AFSCME submitted were not originals and therefore did not

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ORDER
The Central Basin Municipal Water District’s appeal of the Office of the General
Counsel’s administrative determination certifying American Federation of State,
County, and Municipal Employees, Local 1902 (AFSCME) as the exclusive
representative of a proposed unit of non-managerial District employees is DENIED.
AFSCME is certified as the exclusive representative of all employees in the unit of
District employees set forth below:
“Title of Unit: Non-managerial employees
“Shall INCLUDE: All non-managerial employees of
the Central Basin Municipal Water District, including
the Conservation Manager, Deputy Board
Secretary/Senior Procurement Analyst, Senior
Accountant, Recycled Water Development
Specialist, Assistant Engineer, Administrative Clerk,
Management Analyst, Public Affairs Specialist,
Public Safety Officers, and Accounting Specialist.
“Shall EXCLUDE: Managerial employees.”
Chair Banks and Member Paulson joined in this Decision.
comply with PERB Regulation 61020, the late-filed declarations do not support that
contention. Therefore, in addition to the several waivers noted above, the District has
further waived this issue by failing to submit competent evidence at any time.