Decision 2525M – City of Livermore
SF-CE-1177-M
Decision Date: May 4, 2017
Decision Type: PERB Decision
Description: A city excepted to a proposed decision finding that it had violated the MMBA and PERB Regulations by: (1) maintaining and enforcing an unreasonable local rule providing that no unit modification petition would be granted unless the proposed modification was supported by at least 60 percent of affected employees; and (2) unreasonably applying its local rules by failing to provide written findings before denying a unit modification petition filed by City employees.
Disposition: The Board adopted the proposed decisions’ factual findings and legal conclusions, as modified. The super-majority requirement interfered with employee rights to freely choose their representative. Following Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the Board held that a public agency must make factual findings and offer some explanation when applying its local rules governing unit determinations and representation matters.
Perc Vol: 41
Perc Index: 173
Decision Headnotes
750.01000 – In General
City violated the MMBA by processing a unit modification/severance petition on behalf of individual employees when, under the applicable local rules, only employee organizations have standing to petition for unit modification or severance. The record contradicted the City’s claim that it had processed the unit modification/severance petition under the mistaken assumption that the affected employee organization “supported” the efforts of disaffected bargaining unit employees who wished to establish a separate unit for representation purposes. (pp. 4-7.) Among other evidence, a human resources consultant retained by the City, had advised its labor relations officials that the employees’ petition “looked to me like a decertification petition by members” of the exclusive representative. (p. 6-7.)
1100.03000 – Standing
Lack of standing in unfair practice proceedings is jurisdictional and cannot be waived or otherwise affected by the respondent’s failure to assert that defect or by its mistaken belief as to the identity of persons purportedly acting as the authorized agents of a party with proper standing. (pp. 7-8.) As in civil procedure, lack of standing to bring an unfair practice allegation is a “jurisdictional” defect. Because proper standing to bring an action goes to the very existence of a cause of action and the right to relief, it may be raised at any point in unfair practice proceedings, including for the first time on appeal. (p. 8.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Lack of standing in unfair practice proceedings is jurisdictional and cannot be waived or otherwise affected by the respondent’s failure to assert that defect or by its mistaken belief as to the identity of persons purportedly acting as the authorized agents of a party with proper standing. (pp. 7-8.) As in civil procedure, lack of standing to bring an unfair practice allegation is a “jurisdictional” defect. Because proper standing to bring an action goes to the very existence of a cause of action and the right to relief, it may be raised at any point in unfair practice proceedings, including for the first time on appeal. (p. 8.)
1304.07000 – Standing to File
Lack of standing in unfair practice proceedings is jurisdictional and cannot be waived or otherwise affected by the respondent’s failure to assert that defect or by its mistaken belief as to the identity of persons purportedly acting as the authorized agents of a party with proper standing. (pp. 7-8.) As in civil procedure, lack of standing to bring an unfair practice allegation is a “jurisdictional” defect. Because proper standing to bring an action goes to the very existence of a cause of action and the right to relief, it may be raised at any point in unfair practice proceedings, including for the first time on appeal. (p. 8.)
750.01000 – In General
Employee’s lack of standing, as an employee, to file a unit modification petition under the City’s local rules has no bearing on whether he may bring an unfair practice charge alleging violations of the City’s local rules or of employee rights under the MMBA. Standing is not dispensed “in gross.” Rather, it is evaluated separately for each claim and each form of relief sought. (p. 13.) The Legislature has expressly authorized employees, in their capacity as employees, to bring unfair practice charges alleging either that a public agency has acted in violation of its local rules and/or that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or purposes of the MMBA. (p. 14.)
1100.03000 – Standing
Employee’s lack of standing, as an employee, to file a unit modification petition under the City’s local rules has no bearing on whether he may bring an unfair practice charge alleging violations of the City’s local rules or of employee rights under the MMBA. Standing is not dispensed “in gross.” Rather, it is evaluated separately for each claim and each form of relief sought. (p. 13.) The Legislature has expressly authorized employees, in their capacity as employees, to bring unfair practice charges alleging either that a public agency has acted in violation of its local rules and/or that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or purposes of the MMBA. (p. 14.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Employee’s lack of standing, as an employee, to file a unit modification petition under the City’s local rules has no bearing on whether he may bring an unfair practice charge alleging violations of the City’s local rules or of employee rights under the MMBA. Standing is not dispensed “in gross.” Rather, it is evaluated separately for each claim and each form of relief sought. (p. 13.) The Legislature has expressly authorized employees, in their capacity as employees, to bring unfair practice charges alleging either that a public agency has acted in violation of its local rules and/or that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or purposes of the MMBA. (p. 14.)
1304.07000 – Standing to File
Employee’s lack of standing, as an employee, to file a unit modification petition under the City’s local rules has no bearing on whether he may bring an unfair practice charge alleging violations of the City’s local rules or of employee rights under the MMBA. Standing is not dispensed “in gross.” Rather, it is evaluated separately for each claim and each form of relief sought. (p. 13.) The Legislature has expressly authorized employees, in their capacity as employees, to bring unfair practice charges alleging either that a public agency has acted in violation of its local rules and/or that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or purposes of the MMBA. (p. 14.)
750.01000 – In General
PERB rejected a City’s contention that it properly applied community of interest criteria to make a unit determination, where the final determination failed to include findings or explain how these various criteria had been applied. (p. 9.) In making unit determinations under its local rules, a public agency must make findings and explain its analytical process in sufficient detail “to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [public agency’s] action.” (pp. 11-12.)
1100.03000 – Standing
PERB rejected a City’s contention that it properly applied community of interest criteria to make a unit determination, where the final determination failed to include findings or explain how these various criteria had been applied. (p. 9.) In making unit determinations under its local rules, a public agency must make findings and explain its analytical process in sufficient detail “to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [public agency’s] action.” (pp. 11-12.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
PERB rejected a City’s contention that it properly applied community of interest criteria to make a unit determination, where the final determination failed to include findings or explain how these various criteria had been applied. (p. 9.) In making unit determinations under its local rules, a public agency must make findings and explain its analytical process in sufficient detail “to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [public agency’s] action.” (pp. 11-12.)
1304.07000 – Standing to File
PERB rejected a City’s contention that it properly applied community of interest criteria to make a unit determination, where the final determination failed to include findings or explain how these various criteria had been applied. (p. 9.) In making unit determinations under its local rules, a public agency must make findings and explain its analytical process in sufficient detail “to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [public agency’s] action.” (pp. 11-12.)
750.01000 – In General
City’s local rule requiring 60 percent support by affected employees for a proposed unit modification interferes with employees’ protected right to freely choose and be represented by an effective representative by a simple majority vote. (p. 11.)
400.01000 – In General; Standards
City’s local rule requiring 60 percent support by affected employees for a proposed unit modification interferes with employees’ protected right to freely choose and be represented by an effective representative by a simple majority vote. (p. 11.)
400.02000 – Right Not to Participate
City’s local rule requiring 60 percent support by affected employees for a proposed unit modification interferes with employees’ protected right to freely choose and be represented by an effective representative by a simple majority vote. (p. 11.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)
1402.01000 – In General
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)
1402.07000 – Failure to Timely Raise Affirmative Defense
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)
1503.01000 – In General
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)
1503.02000 – Regulations Considered (By Number)
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)
1503.03000 – Regulations Considered (By Number) (Continued)
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.)