City and County of San Francisco (PERB A497M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY AND COUNTY OF SAN FRANCISCO,
Employer,
and
SAN FRANCISCO DEPUTY SHERIFFS’
ASSOCIATION,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Exclusive Representative.
Case No. SF-SV-132-M
PERB Order No. Ad-497-M
October 17, 2022
Appearances: Katzenbach Law Offices by Christopher W. Katzenbach, Attorney, for
San Francisco Deputy Sheriffs’ Association; Weinberg, Roger & Rosenfeld by
Kerianne R. Steele, Attorney, for Service Employees International Union Local 1021.
Before Banks, Chair; Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on San Francisco Deputy Sheriffs’ Association’s appeal from
an administrative determination by PERB’s Office of the General Counsel (OGC). The
Association filed a severance petition (Petition) pursuant to PERB Regulation 61400
and Government Code section 3509, subdivision (a) of the Meyers-Milias-Brown Act
(MMBA), seeking to sever five classifications from existing bargaining units in the City
and County of San Francisco (City) currently exclusively represented by Service

Employees International Union Local 1021 (SEIU).1 OGC issued an administrative
determination finding that PERB has jurisdiction over the Petition because the City’s
local rules do not include a provision that can accomplish severance without an undue
burden on the Association, and as a result PERB Regulations apply to “fill the gap.”
However, OGC found the Petition was untimely under PERB Regulations and
dismissed the Petition.
The Association appealed the administrative determination, primarily arguing
that the City’s local rules required the City to apply PERB Regulations and process an
earlier severance request the Association filed directly with the City, and that PERB
erred by not correcting the City’s failure to do so. SEIU filed a timely response, urging
that OGC should have dismissed the Petition for lack of jurisdiction as the City’s local
rules provide a process for the Association to remove classifications from a bargaining
unit and become formally recognized as the exclusive representative, and further that
whether an “undue burden” exists is a factual question that should be adjudicated
through a formal hearing.2
Having reviewed the entire record in this case and considered the parties’
arguments, we deny the Association’s appeal. We conclude that (1) the City does not
have local rules which can accomplish severance without an undue burden; (2) OGC
1 The MMBA is codified at Government Code section 3500 et seq. All further
statutory references are to the Government Code. PERB Regulations are codified at
California Code of Regulations, title 8, section 31001 et seq.
2 As detailed further post, PERB’s Appeals Office rejected the City’s response
to the Association’s appeal. The Board upheld the determination rejecting that filing in
City and County of San Francisco (2022) PERB Order No. Ad-494-M.
2

did not abuse its discretion in deciding that no hearing was necessary to make that
determination; (3) PERB, not the City, is empowered to apply PERB Regulations; and
(4) applying PERB Regulations, the Association’s Petition was untimely. We
accordingly affirm the administrative d etermination, as explained and supplemented
below.
BACKGROUND3
A. The City’s Local Rules and the Association’s April 1 Severance Request
The City is a public agency within the meaning of MMBA section 3501,
subdivision (c) and PERB Regulation 32016, subdivision (a). The Association and
SEIU are employee organizations within the meaning of MMBA section 3501,
subdivision (a).
The City has adopted an Employee Relations Ordinance (ERO or local rules)
pursuant to MMBA section 3507 to govern labor relations.4 Relevant portions of the
City’s ERO include:
“SEC. 16.205. UTILIZATION OF ADMINISTRATIVE LAW
JUDGES. The City and County is hereby authorized to
enter into an agreement or contract with the Office of
Administrative Hearings, California State Personnel Board,
for the purpose of obtaining the services of an
administrative law judge. Such agreement or contract shall
provide that said administrative law judge shall be
responsible for the duties as hereinafter set forth in this
Ordinance. . . . The authority of the administrative law judge
shall be to the extent as set forth in this Ordinance and in
3 This factual background is drawn from the case file, including the filings of the
parties and their respective attachments.
4 The ERO is composed of sections 16.200 t hrough 16.220 of the San
Francisco Administrative Code.
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no event shall any decision of the administrative law judge
conflict with, alter or attempt to alter the provisions of the
Charter or rules and regulations of the Civil Service
Commission.
[¶] . . . [¶]
“SEC. 16.210. ESTABLISHMENT OF REPRESENTATION
UNITS.
“(a) The Employee Relations Director shall make
determinations as to appropriate bargaining units. In the
event an employee or employee organization disagrees
with the Employee Relations Director’s determination, the
aggrieved party may, within 60 days from the date of the
Employee Relations Director’s determination, submit a
protest to the Civil Service Commission. The Civil Service
Commission will select an administrative law judge who will
schedule the matter for a hearing and final determination. In
arriving at said determination, the administrative law judge
shall consider the factors described in subsection (b)
immediately below.
“(b) The criteria for determining the appropriateness of
bargaining units shall include: the community of interest
among employees; the history of employee representation
in the unit; the extent to which employees have common
knowledge, skill and abilities, working conditions, job duties
or similar educational requirements; the need to avoid
undue fragmentation of bargaining units; the wishes of the
affected employees; and any impact on the City and
County’s ability to effectively and efficiently deliver services.
[¶]5
“(d) Bargaining Units in effect as of the effective date of this
Ordinance shall remain unchanged and treated as separate
5 ERO section 16.210, subdivision (c) lists the 59 bargaining units currently
established by the City.
4

bargaining units unless modified by action of the Employee
Relations Director as provided herein [. . .]
[¶]
“SEC. 16.211. PROCEDURE FOR RECOGNITION OF
EMPLOYEE ORGANIZATION.
“(a) Any registered employee organization determined by
Section 16.209 of this Ordinance may request recognition
as the exclusive representative of a bargaining unit by filing
with the Civil Service Commission a written statement
indicating verification of employee approval in the form of a
signed petition, authorization cards, or union membership
cards signed and dated by employees not more than six
months prior to submission of 30 percent of the employees
in the particular bargaining unit.
“(b) Unless the provisions of Government Code section
3507.1(c) have been satisfied, the Civil Service
Commission shall give written notice to the other registered
employee organizations having members in the bargaining
unit for which recognition is sought. Within 30 calendar
days from the date of such notice, an employee
organization with membership in the particular bargaining
unit may file a challenging petition seeking to become the
exclusive representative of said unit. The challenging
statement shall contain verification, in the form of a signed
petition, authorization cards, or union membership cards
signed and dated by employees not more than six months
prior to submission of 30 percent of the employees in the
bargaining unit. Upon submission of such verification the
challenging employee organization shall be placed on the
ballot.
“(c) If a challenging petition has been filed, the Civil Service
Commission Department shall, within 30 days after the
period for filing a challenging petition expires or as soon
thereafter as practicable, cause to be conducted a secret
ballot election within the bargaining unit to determine which
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organization, if any, shall be recognized as the exclusive
representative of the bargaining unit.
“(d) If no challenging petition has been filed, and provided
that the provisions of Government Code section 3507.1(c)
are not applicable, the Civil Service Commission shall,
within 30 days after the period for filing a challenging
petition expires or as soon thereafter as is practicable,
cause to be conducted a secret ballot election within the
bargaining unit to determine which organization, if any,
shall be recognized as the exclusive representative of the
bargaining unit.
“(e) The ballot in any such election shall contain the choice
of ‘no organization.’ Where there are three or more choices
and no one receives a majority of the valid ballots cast, a
run-off election shall be conducted between the two choices
receiving the largest number of ballots cast.
“(f) Employees entitled to vote in a representation election
shall be those employees within the bargaining unit with
permanent status whose names appear on the last payroll
bearing a date which is no less than 30 calendar days prior
to the date on which the election is to be held or such other
date within the discretion of the Civil Service Commission
as may be practicable under the circumstances.
“(g) There shall be no more than one valid representation
election in a 12 month period within the same bargaining
unit.
“(h) As an alternative to the procedures outlined above, the
provisions of MMBA, Government Code section 3507.1(c)
may be employed to the extent that the requirements of that
section are met. The Civil Service Commission will certify
an organization as the exclusive representative upon
verification that all such requirements are met. A
determination as to whether the requirements have been
met shall be made in accordance with the provisions of
Government Code section 3507.1(c).
6

“SEC. 16.212. DECERTIFICATION. A decertification
petition may be filed with the Civil Service Commission by
employees or by an employee organization to determine
whether or not the exclusive representative continues to
represent a majority of the employees in the bargaining
unit. Such petition must be accompanied by proof of
employee approval in the form of a signed petition,
authorization cards, or union membership cards signed and
dated by employees not more than six months prior to
submission equal to at least 30 percent of the employees
within the bargaining unit, and must be filed within the
period between the 90th and 60th day immediately
preceding the expiration date of the exclusive
representative’s existing memorandum of understanding,
provided that the existing memorandum of understanding
does not exceed a two year period. In the event the existing
memorandum of understanding does exceed a two year
period, the decertification petition may also be filed within
the period between the 90th and 60th day immediately
preceding the expiration of the second year of the
memorandum of understanding. When such a petition has
been filed, the Civil Service Commission shall cause to be
conducted a secret ballot election to determine whether the
incumbent exclusive representative shall be decertified and
whether another organization shall be recognized. If the
challenging employee organization receives a majority of
the valid votes cast, the present exclusive representative
will be decertified and the employee organization receiving
a majority of the valid votes cast will become the exclusive
representative. There shall be no more than one
decertification election in a 12 month period, and no more
than one decertification election during the first three years
of the term of a memorandum of understanding, within the
same bargaining unit.”
On April 1, 2022, the Association filed a “Request for Recognition - Petition to
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Sever” (Request) with City Employee Relations Director Ardis Graham.6 The filing was
on a City Civil Service Commission (CSC) form titled “Recognition, Challenging, or
Decertification Petition.” The Association checked the box next to “Recognition,” and
typed below, in relevant part, “[t]his is a Petition To Sever certain peace officer
classifications from the existing unit.” In an attachment to the form, the Association
provided additional information about the proposed unit. The proposed unit includes
employees in the classifications of Medical Examiner’s Investigator I, Medical
Examiner’s Investigator II, Medical Examiner’s Investigator III, Park Ranger, and Head
Park Ranger. The proposed unit contains approximately 14 employees in the Medical
Examiner’s Investigator I/II/III classifications, and 39 employees in the Park Ranger
and Head Park Ranger classifications. Those classifications are currently in
bargaining units represented by SEIU.7 The governing Memorandum of Understanding
(MOU) between the City and SEIU ran from July 1, 2019, to June 30, 2022.
On April 15, the City responded to the Association’s Request via a letter from
ERO Administrator Luz Morganti. The letter stated that the Association’s Request did
not meet the criteria and/or procedures set forth in the ERO:
“Bargaining Unit determinations and/or modifications are at
the discretion and authority of the Employee Relations
Director . . . Neither employees [n]or Labor Organizations
have the ability to make this determination independently or
to request severance of these classifications from the
Bargaining Units they are designated to. Request for
6 All further dates are in 2022 unless otherwise noted.
7 While not stated in the Association’s Request, the classifications it seeks to
sever come from Bargaining Unit 24 Security and Investigative, and Bargaining Unit 27
Supervisory.
8

consideration to review the classifications you have cited in
the p etition for bargaining unit modification may be
submitted to the Employee Relations Director of Human
Resources.”
The City’s letter further stated that the Association’s Request was neither timely filed
nor did i t meet the proper threshold o f signatures for decertification under ERO section
16.212. The City also noted that a unit modification request involving the Medical
Examiner’s Investigator II and III classifications was “reviewed in 2019 by the [CSC]
and the Employee Relations Director” and that the same issue was “submitted to the
Office of Administrative Hearings in 2018 . . . The Employee Relations Director’s
decision to maintain these classifications in their current bargaining units was upheld
by the Administrative Law Judge.” Ultimately, the City concluded that “the request for
Recognition and to sever or decertify the classes petitioned by [the Association] from
SEIU, Local 1021 does not meet the established criteria; is untimely and cannot be
processed by the [CSC].”
B. Procedural History at PERB
1. Petition and Order to Show Cause
The A ssociation filed its Petition with PERB on April 28, seeking to sever the
same classifications and create the same miscellaneous peace officers’ unit it had
sought via its April 1 Request. On May 6, the Association perfected its filing by
submitting proof of employee support. On May 9, OGC sent correspondence to the
parties asking “whether the City has adopted local rules in accordance with MMBA
section 3507 that would allow severance without placing an undue burden on the
9

Association” and requesting that, if so, the City provide a copy.8 Additionally, OGC
stated, “if applicable, the City may also provide information regarding instances where
severance has been pursued or accomplished under its local rules.” The City’s May 31
response stated it received PERB’s letter “asking if the City has Local Rules in
accordance with MMBA section 3507 regarding procedure for establishment of an
employee organization” and attached a copy of its ERO. The City did not indicate what
part of its ERO would allow severance, nor did it provide any information regarding
instances where severance had been pursued or accomplished under the ERO.
On June 2, OGC issued an order to show cause (OSC) why the Petition should
not be dismissed based on either lack of PERB jurisdiction or untimeliness. The OSC
initially noted that it “appears that the City’s local rules can accomplish what the
Association is seeking without placing an undue burden on the Association.”
Specifically, the OSC posited that severance could be accomplished by applying the
City’s local rules for unit modification under ERO section 16.210 followed by a
decertification petition under ERO section 16.212. The OSC went on to explain that
even assuming the City’s local rules did not apply, the Petition was subject to
dismissal for untimeliness. Under PERB Regulation 61400, subdivision (b), a
severance petition must be filed within the window period defined by PERB
Regulation 61010: “the 29-day period which is less than 120 days but more than
90 days prior to the expiration date of a lawful memorandum of understanding
negotiated by the public agency and the exclusive representative.” According to the
8 While these requests were directed to the City, the letter was addressed to
“Interested Parties” and included SEIU’s representative.
10

Petition, the MOU between SEIU and the City expired on June 30, meaning the
window period ran from March 3 to April 1.9 The OSC noted the Association’s Petition
was filed well outside of this window period and thus untimely.
On June 10, the Association responded to the OSC, arguing that severance
cannot be accomplished under the City’s local rules without an undue burden. As part
of its argument, the Association cited to and attached the decision of an Office of
Administrative Hearings (OAH) Administrative Law Judge (ALJ), In re Krzysztof
Barbrich, OAH No. 2018020670, October 12, 2018 (Barbrich decision).10
The Barbrich decision addressed whether the City erred by denying an
employee’s July 16, 2016 request to transfer the Medical Examiner’s Investigator II
and III job classifications from their incumbent bargaining units represented by SEIU
into an existing bargaining unit represented by the Supervising Probation Officers
Association. The OAH ALJ determined that the City did not err in denying the request,
reasoning in part that the ERO contains no regulations governing requests to move
classifications into a different unit, and therefore PERB Regulations must apply to “fill
in the gap.” The OAH ALJ applied PERB Regulation 61400 governing severance, and
found the employee’s request did not comply with the procedural requirements set
9 The OSC noted that this window period was extended by one day because
PERB offices were closed on March 31, a state holiday. (See Planada Elementary
School District (2017) PERB Order No. Ad-450, pp. 3-4.)
10 The Barbrich decision is not publicly available or otherwise published. While
the record contains limited information about this prior dispute, we deduce that it was
submitted to OAH for decision as part of the process set out in ERO sections 16.205
and 16.210, subdivision (a), and is the OAH decision Morganti referenced in her
April 15 denial of the Association’s April 1 Request.
11

forth therein and therefore was properly denied by the City. The Barbrich decision
demonstrated, according to the Association, that the City previously applied PERB
Regulations in a similar circumstance. Based on this contention, the Association’s
response to the OSC further argued that its April 1 Request to the City was timely
under PERB Regulations, and that PERB should review the City’s underlying April 15
denial as part of the Petition.
SEIU responded to the OSC on June 21, arguing that the City’s local rules
provide a process for the Association to remove classifications from a bargaining unit
and become formally recognized as the exclusive representative of employees in
those classifications, and that therefore, there is no “gap” in the City’s rules that may
be filled by PERB Regulations. SEIU further responded that to the extent the City’s
rules are inconsistent with the MMBA, or the City incorrectly or arbitrarily applied them,
the appropriate avenue for such a challenge is PERB’s unfair practice charge process.
The City filed its reply related to the OSC on June 28. The entirety of the City’s
argument stated:
“In its June 10 response to PERB’s OSC, the [Association]
argued that the City has a two-step process to achieve
what [the Association] is attempting to accomplish in this
process, i.e., moving a group of classifications from one
bargaining unit to another. However, in fact, the [CSC] did
consider [the Association’s] application in one step, and
determined that it had not followed the correct procedures,
which are thoroughly set out in its denial of their April 1
Request/Petition. Therefore, [the Association] has already
been afforded the exact one-step process they are now
complaining of not receiving.
“Finally, as PERB noted in its June 2 OSC, [the
Association’s] Severance Petition to PERB was untimely.
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[The Association] cannot point back to its original
procedurally incorrect submission to the City and use that
to get around the fact that its submission to PERB was
untimely, regardless of the merits of [the Association’s]
arguments and jurisdiction of PERB as a venue.”
2. Summary of Administrative Determination
On June 29, OGC issued its administrative determination. After review of the
parties’ responses to the OSC, OGC concluded that the City’s ERO lacked a process
that would allow the Association to s eek severance w ithout an u ndue burden. The
two-step process in the local rules that would require the Association to first seek
modification of the unit through ERO section 16.210, and then decertification under
ERO section 16.212, OGC reasoned, would present a significant obstacle because the
City’s local rules do not contain a window period or require proof of support for a unit
modification, but they do for decertification. The practical effect would require the
Association to undertake the unit modification process and obtain a favorable decision
before it could gather proof of support and file a timely decertification petition. This
delay, OGC noted, could impact the Association’s ability to gather proof of support
among the affected employees. Applying relevant PERB precedent to the facts at
hand, OGC found the City’s local rules do not contain a process that would allow the
Association to seek severance without an undue burden.
The a dministrative determination noted further that the Association’s arguments
in response to the OSC misstated the effect of this conclusion. An unfair practice
charge, not a P ERB severance petition, is the appropriate mechanism for enforcing an
employer’s duty to process a representation petition under its local rules. But in the
absence of written local rules allowing the Association to sever classifications without
13

an undue burden, OGC noted, PERB cannot direct the City to process the
Association’s severance petition under PERB severance regulations. Rather, PERB
Regulations fill gaps in local rules by supplying processes for PERB to apply when an
employer does not have reasonable local rules.
The administrative determination went on to explain that the Association’s only
option, therefore, is for PERB to process the Petition filed on April 28 and perfected on
May 6. But that Petition was filed well outside the window period established in PERB
Regulation 61010. Therefore, the administrative determination dismissed the
Association’s Petition as untimely.
3. Appeal of Administrative Determination
On July 11, the Association appealed OGC’s dismissal of its Petition, stating
three issues for appeal: (1) “The A dministrative Determination fails to apply PERB’s
authority under Government Code Section 3509(c): ‘The board shall enforce and apply
rules adopted by a public agency concerning unit determinations, representation,
recognition, and elections’”; (2) “The Administrative Determination fails to
acknowledge that the City’s Rules required the City to process the unit severance
petition the [Association] filed”; and (3) “The Administrative D etermination al lows the
City to turn a timely petition into an untimely one simply by refusing to follow the City’s
own Rules that required the City to process the petition.” The Association did not cite
to any PERB or court precedent, and relied primarily on the Barbrich decision and its
interpretation of MMBA section 3509, subdivision (c).
On July 18, SEIU filed a timely response to the Association’s appeal, urging the
Board to affirm the Petition’s dismissal for lack of jurisdiction rather than untimeliness,
14

as the City has local rules which can provide a process for the Association to remove
classifications from a bargaining unit and become formally recognized as the exclusive
representative of those classifications. SEIU also argued that whether an “ undue
burden” exists is a factual question that should be adjudicated through an evidentiary
proceeding that allows for the calling of witnesses.
On July 25, the City attempted to file a response, but PERB’s Appeals Office
rejected it as untimely. On August 4, the City appealed that determination, arguing it
had good cause for late filing. On August 24, in City and County of San Francisco,
supra, PERB Order No. Ad-494-M, the Board upheld the Appeals Office’s
determination rejecting the City’s late-filed response.
DISCUSSION
When appealing an administrative d etermination, the appellant must
demonstrate how or why the challenged decision departs from the Board’s precedents
or regulations. (Children of Promise P reparatory Academy (2018) PERB Order
No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order
No. Ad-434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.)
As discussed further post, in representation matters we apply an a buse of discretion
standard to review a Board agent’s decision whether to hold an evidentiary hearing.
A. Representation Determinations Under the MMBA and “Filling the Gap” with
PERB Regulations
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt
reasonable rules and regulations after consultation in good faith with representatives
of a recognized employee organization or organizations for the administration of
employer-employee relations.” Such local rules may include provisions for, among
15

other things, recognizing employee organizations and determining appropriate
bargaining units. (MMBA, § 3507, subd. (a)(3), (4); County of Monterey (2022) PERB
Decision No. 2821-M, p. 9.) In allowing public agencies to establish local rules for
managing labor relations, the MMBA differs from most other statutes under PERB’s
jurisdiction. (Salinas Valley Memorial Hospital District (2020) PERB Decision
No. 2689-M, p. 20.)
When a public agency has adopted local rules, PERB has jurisdiction over a
representation petition only if the agency’s local rules contain no reasonable
provision(s) that can accomplish what the petitioner is seeking without placing an
undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-
M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular
representation issue, PERB Regulations fill the gap” by allowing PERB to process the
petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M,
p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) Because the City has adopted
local rules, the central question analyzed by the administrative determination was
whether the City’s ERO contains rules that can accomplish severance without an
undue burden.
In County of Siskiyou/Siskiyou County Superior Court (2010) PERB Decision
No. 2113-M (Siskiyou), the Board considered whether it had the authority to address a
petition for amendment of certification. (Id. at p. 14.) The employer argued that PERB
lacked jurisdiction over the petition because amendment of certification could be
achieved via the county’s decertification process. The Board rejected this argument,
finding amendment of certification and decertification to be fundamentally different
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processes. (Id. at p. 15.) As the Board explained:
“[A] decertification petition seeks to oust the current
recognized employee organization and replace it with either
a different employee organization or no representation.
(Jamestown Elementary School District (1989) PERB Order
No. Ad-187; International Union of Operating Engineers,
State of California Locals 3, 12, 39 and 501, AFL-CIO
(California State Employees’ Association, SEIU, AFL-CIO)
(1984) PERB Decision No. 390-S.) Amendment of
certification, on the other hand, ‘is appropriate where there
is no change in the basic identity of the representative
chosen by the employees but, rather, where the change is
one of form and not of substance.’ (Ventura Community
College District (1982) PERB Order No. Ad-130.)”
(Siskiyou, supra, PERB Decision No. 2113-M, pp. 18-19.) The Board ultimately found
that it would be an undue burden to require a union to participate in the onerous
decertification process simply to obtain official recognition of a change in the
organization’s form. (Id. at p. 19.) Accordingly, the Board applied its own amendment
of certification regulations to the union’s petition. (Ibid.)
In contrast, in City of Inglewood (2011) PERB Order No. Ad-390-M, the Board
found no undue burden. There, the employer asserted that a severance petitioner
could reasonably use the local rules’ procedure for recognition of a union as an
appropriate unit’s bargaining representative. (Id., adopting dismissal letter at p. 2.)
There, the employer’s local rule for recognition required that a petition be filed, that the
petitioner demonstrate employee support, and the proposed unit be appropriate. (Id.,
adopting dismissal letter at p. 3.) Because this procedure did not distinguish between
represented and unrepresented employees, and the employer identified that
severance had previously been achieved through this process, the Board found the
17

procedure did not place an undue burden on the petitioner. (Ibid.)
In County of Orange, supra, PERB Decision No. 2138-M, the Board similarly
found that the employer’s local rule for unit modification could reasonably be used to
sever classifications from an existing unit. (Id. at pp. 9-10.) In that instance, the Board
found the employer’s local rule for unit modification and “MMBA severance regulations
[were] largely identical and serve[d] a similar purpose, namely to reconfigure an
existing bargaining unit.” (Id. at p. 10.)11
Here, the administrative determination found that the possible process for
severance in the City’s ERO, which it identified as a two-step process – unit
modification under ERO section 16.210, followed by decertification under
section 16.212 – constitutes an undue burden. SEIU asserts in its response that
severance can be accomplished by a different two-step process – unit modification
11 Although the employer’s local rule on unit modification in County of Orange
provided a sufficient single-step process to accomplish severance without imposing an
undue burden, County of Orange does not alter the fact that “unit modification” and
“severance” generally have different meanings. Under PERB Regulations, “unit
modification” refers to a variety of actions to change an established bargaining unit.
(See PERB Reg. 61450, subds. (a) and (b).) Most typically, unit modification refers to
moving one or more classifications or positions from one established bargaining unit to
another, or adding one or more unrepresented classifications to an existing bargaining
unit. Severance, on the other hand, refers to a “petition to become the exclusive
representative of an appropriate unit consisting of a group of employees who are
already members of a larger established unit represented by an incumbent exclusive
representative . . .” (PERB Reg. 61400, subd. (a).) Here, the parties and OGC at times
have used “unit modification” to refer to a possible change to the City’s bargaining
units under ERO section 16.210, including the severance sought by the Association.
However, the Association’s requested severance is not typically considered a unit
modification, and for the reasons we proceed to explain, the ERO does not provide a
reasonable severance process.
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followed by a petition for recognition.12 Under either two-step process, we find an
undue burden necessitating application of PERB Regulations.13
Unlike in City of Inglewood or County of Orange, severance under the City’s
ERO requires application of at least two separate rules. While unit modification and
recognition are both components of severance, we find their bifurcation under the
City’s ERO renders them a fundamentally different process. ERO section 16.210,
subdivision (a) requires the City’s Employee Relations Director to make
determinations as to appropriate bargaining units. It also provides a process for an
employee or employee organization to submit a protest to the CSC within 60 days
from the date of the Employee Relations Director’s determination, followed by a
hearing and final determination by an ALJ. ERO section 16.210, subdivision (d) states
simply “Bargaining Units in effect as of the effective date of this Ordinance shall
remain unchanged and treated as separate bargaining units unless modified by action
of the Employee Relations Director . . .” The rule contains no process for initiating a
request to modify a bargaining unit by adding or removing classifications. Other than
requiring a protest be filed within 60 days of the Employee Relations Director’s
decision, the rule contains no timing and is administered at the discretion of the City’s
Employee Relations Director. While the record contains few facts, the Barbrich
decision, which is the only example in the record of the City’s timeline for resolving a
12 While SEIU’s argument does not cite the applicable ERO sections, we
deduce that they are 16.210 and 16.211, respectively.
13 Because we find either two-step process would constitute an undue burden,
we express no opinion on whether decertification or recognition would be the
appropriate second step after a successful unit modification.
19

request for unit modification, demonstrates that more than two years elapsed between
Barbrich’s request to modify the bargaining unit on July 26, 2016, and the OAH ALJ
decision on October 26, 2018. And unlike in City of Inglewood, the City’s ERO would
place any determination of an appropriate unit as a first step, rather than as an
integrated step of the recognition process.
This first step is in tension with the timing of the required second step under
either ERO section 16.212 or 16.211. A petition for decertification under ERO
section 16.212 must be filed within a 30-day window period based on the term of the
effective MOU.14 To accomplish severance via section 16.212, as analyzed by OGC,
the first unit modification step must necessarily be followed by a specifically timed
decertification. Where, as discussed above, the City’s unit modification process has no
set timelines, is conducted at the discretion of the Employee Relations Director and
may include a lengthy protest process, there is little hope that any petitioner could time
its petition so that the conclusion of the first step would coincide with the
decertification window period. Such a process constitutes an undue burden.
While a petition for recognition under ERO section 16.211 need not be filed
within a designated window period, the ERO dictates that it must be supported by
proof of support dated within six months of submission.15 The potential that proof of
14 An MOU-based window period generally does not bar a party from filing for
decertification during a hiatus between contracts (City of Long Beach (2021) PERB
Decision No. 2771-M, pp. 13-14), but there is no guarantee that any such hiatus will
ever occur.
15 In contrast to the City’s ERO, PERB Regulation 32700 provides that proof of
support is generally effective for one year. No party has asked us to assess whether
the ERO’s six-month proof of support requirement is lawful, and we express no
20

support could become stale during a protracted two-step severance process makes it
unduly burdensome. An employee organization seeking to modify an existing
bargaining unit cannot be assured it would retain sufficient employee support through
that extended process, and nothing in the record indicates that the City would treat an
eventual petition in the second step as having been filed retroactively or supported by
proof of support collected prior to the first step. In the alternative, if an employee
organization must wait until after a new unit is established to collect signatures, it
disincentivizes any effort to seek a modified unit, as an employee organization has
little assurance that it will have sufficient support by the time it gets to the second step.
Because the steps are not integrated, severance petitioners proceeding under the
ERO face an undue burden.
Notably, although OGC provided an opportunity to do so, the City did not
directly address how a severance petition could be processed under the ERO without
unduly burdening the petitioner. OGC asked “whether the City has adopted local rules
in accordance with MMBA section 3507 that would allow severance without placing an
undue burden on the Association.” The City responded by providing a copy of its ERO,
without explaining how severance could be accomplished under the ERO. Further, the
City did not identify either two-step process in its reply to the Association’s response to
the OSC. Instead, it claimed it had followed a one-step process:
“[I]n fact, the Civil Service Commission did consider [the
Association’s] application in one step, and determined that
it had not followed the correct procedures, which are
thoroughly set out in its denial of their April 1
Request/Petition. Therefore, [the Association] has already
opinion on it.
21

been af forded the exact one-step process they are now
complaining of not receiving.”
Most telling, the City’s April 15 r esponse to the Association’s Request states that
“[n]either employees [n]or Labor Organizations have the ability . . . to request
severance of these classifications from the Bargaining Units they are designated to.”
The City’s response to the Association’s April 1 Request therefore provides no support
that severance can reasonably be a ccomplished under the ERO. Consistent with the
City’s responses, no party has pointed to any instance where a severance petition has
been processed under the ERO.16
For these reasons, we affirm OGC’s conclusion that the ERO provides no
avenue for processing a severance r equest without unduly burdening a petitioner.
B. SEIU’s Request for a Hearing
SEIU asserts that a hearing was necessary to resolve whether the City’s local
rules constitute an “undue burden” such t hat PERB Regulations on severance apply.
PERB Regulation 61420 provides “[w]henever a severance petition is filed with the
Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a
representation election, or take such other action as deemed necessary to d ecide the
questions raised by the petition.” PERB recently noted that under a comparable
regulation implementing the Educational Employment Relations Act (EERA), “[t]here is
‘no guarantee or entitlement to an evidentiary hearing.’”17 (Alliance Morgan McKinzie
16 PERB’s May 9 correspondence, which was also served on SEIU, asked the
City for this information, if available.
17 EERA is codified at section 3540 et seq.
22

High School, et al. (2022) PERB Order No. Ad-491, p. 13, quoting Children of Promise
Preparatory Academy (2013) PERB Order No. Ad-402, p. 16.) Rather, after
completing an investigation, the Board agent may either “determine that sufficient
evidence has been submitted to raise a material issue that necessitates an evidentiary
hearing,” or “that no material issue of fact exists and thus that a hearing is
unnecessary.” (Id. at p. 17.) The Board applies an abuse of discretion standard in
reviewing a Board agent’s determination whether to conduct a hearing in a
representation matter. (Robert L. Mueller Charter School (2003) PERB Order
No. Ad-320, p. 11.)
While SEIU asserts that whether an “undue burden” exists is a factual question
that should be adjudicated through an evidentiary proceeding that allows for the
calling of witnesses, a review of the relevant documents reveals no disputed material
facts. Both the OSC and OGC’s letter inviting replies noted that:
“[f]actual 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.”
No party submitted a declaration in support of its filing. And indeed, each party relies
solely on interpretation of the ERO provisions and legal authority as support for its
position.
Precedent also supports OGC’s decision to determine an “undue burden”
without conducting a hearing when there are no disputed facts. Like the instant matter,
City of Inglewood came to the Board on appeal from OGC’s dismissal of a petition,
23

where n o hearing took place to determine whether there was an undue burden
because it was undisputed that severance in that case had been achieved u nder the
local rules. (City of Inglewood, supra, PERB Order No. Ad-390-M, pp. 1-2, adopting
dismissal letter at p. 3.) County of Orange, in contrast, came to the Board from a
different procedural posture, on exceptions to the proposed decision of an ALJ
adjudicating the union’s unfair practice charge and a resulting complaint. (County of
Orange, supra, PERB Decision No. 2138-M, p. 1.) While Siskiyou involved a petition
for amendment of certification, and thus arose from a posture more s imilar to this
case, that matter included significant disputed facts. (See Siskiyou, supra, PERB
Decision No. 2113-M, pp. 1-9.) In sum, there may be instances where there are
material facts in dispute surrounding whether a local rule imposes an undue burden,
but we find none here and conclude OGC did not abuse its discretion by declining to
hold a hearing.
C. Application of PERB Regulations
The m ain t hrust of the Association’s arguments on appeal is that OGC erred by
finding that PERB, and not the City, had jurisdiction to apply PERB Regulations.
Instead, the Association argues, the City’s rules required the City to process the
Association’s April 1 Request by applying PERB Regulations. The Association’s
appeal does not cite a single PERB decision, however, and instead relies on the
Barbrich decision.
The a dministrative determination correctly noted that when P ERB “fills the gap”
in local rules, it is PERB, not the employer, who applies PERB Regulations. The
administrative determination acknowledged that PERB directed an employer to apply
24

PERB Regulations in County of Amador (2013) PERB Decision No. 2318-M. There,
after affirming the ALJ’s finding that the county’s local rule governing decertification
was contrary to the MMBA and thus invalid, the Board upheld a proposed order
requiring the employer to follow PERB Regulations when processing decertification
petitions under its local rules, but only until the employer amended its local rules’
decertification provisions to be consistent with the MMBA. (Id. at pp. 11-14.)
County of Amador does not support the Association’s arguments. Rather, it
reinforces that the Association had two primary options in light of the City’s lack of a
reasonable local rule on severance. First, the Association could have timely filed a
severance petition with PERB.18 Second, the Association could have filed an unfair
practice charge alleging that the City maintained an unreasonable rule or applied its
local rules unreasonably. As part of such a charge, the Association could have asked
PERB to issue a tailored remedy. (See, e.g., City of Long Beach, supra, PERB
Decision No. 2771-M, pp. 13-14 [directing employer to refrain from applying illegal
provision in processing petitions]; County of Ventura (2018) PERB Decision
No. 2600-M, pp. 44-45 [same].)19
18 While PERB would process such a petition given that the City has no
reasonable local rule on severance, we express no opinion about the merits of the
new unit the Association sought to create. (See generally, City of Pasadena (2021)
PERB Decision No. 2788-M, pp.10-17 [discussing factors relevant to severance
determinations].)
19 We express no opinion as to whether the Board’s remedy in County of
Amador, supra, PERB Decision No. 2318-M, was suitable based on the unique facts
of that case, nor as to what outcome or remedies might have been warranted had the
Association brought an unfair practice charge asserting the City maintained an
unreasonable rule or unreasonably applied its local rules. We reserve for future
case-by-case determination the question of what circumstances may warrant an order
25

On appeal, the Association does not argue that the administrative determination
misapplied PERB precedent. Instead, the Association grounds its argument in the
Barbrich decision, which, it asserts, concluded that the City properly applied PERB
severance regulations in that case. According to the Association, that decision now
binds the City to continue to apply PERB severance regulations in the absence of an
applicable local rule, and requires PERB to enforce the City’s obligation to apply
PERB Regulations. We do not so find.
In its appeal, the Association asserts “once the City adopted PERB’s
Regulations as the local rules for unit severance petitions, the City was obliged to
follow the Regulations for future unit severance petitions. It cannot pick and choose
whether or not to apply these rules.”20 The appeal also highlights that in the Barbrich
decision, the ALJ noted “[the City] contends that there are no regulations in the ERO
governing requests to move classifications into a different unit, and therefore PERB
Regulations must apply to ‘fill in the gap.’”
The doctrine of judicial estoppel prohibits a party from successfully taking
inconsistent positions in the same or different judicial proceedings. (Alliance Judy Ivie
Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, pp. 36-37
(Alliance) (judicial appeal pending); Jackson v. County of Los Angeles (1997)
directing an employer to follow PERB Regulations, either in a particular instance or on
an interim basis until it adopts reasonable local rules.
20 The Association also argues that “[t]he Administrative Determination allows
the City to turn a timely petition into an untimely one simply by refusing to follow the
City’s own Rules that required the City to process the petition.” We find this argument
to be just a different phrasing of its central contention that the City should have
applied PERB Regulations.
26

60 Cal.App.4th 171, 181 (Jackson).) Judicial estoppel applies when (1) the same party
has taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position
(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a result of ignorance,
fraud, or mistake. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at
p. 183.) The doctrine’s purpose is to protect the integrity of the judicial process by
preventing parties from playing fast and loose with the courts. (Alliance, supra, p. 37,
citing Jackson, supra, 60 Cal.App.4th at p. 181.) But the Association’s appeal fails to
fully raise or argue that the City should be estopped from asserting it cannot apply
PERB Regulations. Nor was that issue addressed in the OSC. In the absence of
argument, we decline to find OGC erred in failing to apply estoppel principles here.
We also briefly consider whether OGC was bound to follow the OAH ALJ’s
conclusions. PERB is not bound by the findings and conclusions of another
administrative decision unless collateral estoppel applies. (San Diego Unified School
District (1991) PERB Decision No. 885, p. 74). The doctrine of collateral estoppel
precludes the relitigation of an issue already decided in another proceeding where:
(1) the issue decided in the prior proceeding is identical to that sought to be relitigated;
(2) the previous proceeding resulted in a final judgment on the merits; and (3) the
party against whom collateral estoppel is asserted was a party or in privity with a party
in the prior proceeding. (State of California (Department of Developmental Services)
(1987) PERB Decision No. 619-S, p. 14, citing People v. Sims (1982) 32 Cal.3d 468,
484.) Collateral estoppel effect may be given to decisions of administrative agencies
27

when: (1) the agency is acting in a judicial capacity; (2) it resolves disputed issues of
fact properly before it; and (3) the parties have had an adequate opportunity to litigate
such disputed issues. (State of California (Department of Developmental Services),
supra, pp. 14-15; People v. Sims, supra, 32 Cal.3d at p. 484.) We need not proceed
past the first step of analysis to conclude that collateral estoppel does not bind us to
follow the Barbrich decision because the issues decided there are not identical to
those raised by the Association’s Petition. The underlying issue in the Barbrich
decision was whether the City erred by denying Barbrich’s July 26, 2016 request to
transfer the Medical Examiner’s Investigator II and III classifications from their existing
bargaining units represented by SEIU into an existing bargaining unit represented by
the Supervising Probation Officers Association. While Barbrich’s request involved two
of the same classifications the Association seeks to sever here, it was a different
request, seeking a different result: transfer of two represented classifications into an
existing bargaining unit, rather than creation of a new unit. That the OAH ALJ affirmed
the City’s application of PERB Regulations in those circumstances does not require
that we reach the same conclusion here.21
The Association also argues that Civil Service Rule 107.1.5, which directs the
CSC to resolve “[d]isputes over representation proceedings not expressly provided
herein . . . in a manner consistent with MMBA,” requires the City to apply PERB
Regulations in the absence of local rules.22 The Association further argues that “[t]he
21 As no party sought review of the Barbrich decision via an unfair practice
charge, we express no opinion about its analysis or conclusions.
22 The Association included the text of Civil Service Rule 107.1.5 in its appeal,
but no party otherwise introduced it. The CSC publishes the Rules related to the ERO
28

Administrative Determination fails to apply PERB’s authority under Government Code
Section 3509(c): ‘The board shall enforce and apply rules adopted by a public agency
concerning unit determinations, representation, recognition, and elections.’” These
arguments misstate the process PERB uses to enforce local rules. If the Association
hopes to obtain a PERB order directing the City to process petitions in a particular
manner based on any combination of Civil Service Rule 107.1.5, other local rules, the
MMBA, and applicable precedent, the Association must file an unfair practice charge.
As noted ante and in the administrative determination, the process for
challenging the application or existence of local rules as contrary to the MMBA is not a
representation petition, but rather an unfair practice charge. (City of Parlier (2015)
PERB Order No. Ad-421-M, p. 8.) The Association had a right at the time o f receiving
the City’s April 15 response to its April 1 Request to file a n unfair practice charge,
alleging that the City’s local rules themselves violate the MMBA or that their
application in this instance was unreasonable. Indeed, that would have been the
proper avenue to allege that the City violated its local rules by failing to apply PERB
severance regulations as it had in the Barbrich matter. Because we cannot resolve
such an allegation in this representation matter, we accordingly cannot order the City
to apply PERB Regulations to the Petition, as the Association urges.
D. Untimeliness of Petition
The Association fails to advance any argument that it had good cause for its
untimely Petition to PERB or that the timeline should otherwise be tolled, except as
on its website, and Rule 107.1.5 can be found at https://sfgov.org/civilservice/rule-107-
rules-related-employee-relations-ordinance [last accessed October 13, 2022.]
29

already considered ante. The Association has not met its burden on appeal to
demonstrate the administrative determination finding the Petition untimely was
contrary to B oard regulations or precedent.
In sum, no party has identified any error of law in OGC’s determination, and we
find none which impacts the outcome. We conclude that OGC cited to appropriate
PERB precedent and properly applied the law to the facts underlying the Association’s
Petition, except as supplemented herein. OGC’s conclusions are supported by the
record. Therefore, we decline to set aside the administrative determination, and we
affirm the decision to dismiss the Association’s Petition as untimely.
ORDER
The San Francisco Deputy Sheriffs’ Association’s appeal of the Office of the
General Counsel’s June 29, 2022 order dismissing its severance petition in Case
No. SF-SV-132-M is DENIED.
Chair Banks and Members Shiners and Krantz joined in this Decision.
30