Decision 2525M – City of Livermore

SF-CE-1177-M

Decision Date: May 4, 2017

Decision Type: PERB Decision

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Perc Vol: 41
Perc Index: 173

Decision Headnotes

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
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.)

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
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.)

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1304.00000 – REPRESENTATION ISSUES; OBJECTION TO ELECTIONS
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.)

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
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.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
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.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.)