Decision 2771M – City of Long Beach

LA-CE-1467-M

Decision Date: June 9, 2021

Decision Type: PERB Decision

Description: Joined party International Brotherhood of Electrical Workers, Local 47 (IBEW) filed a petition under the City of Long Beach local rules, seeking to decertify and replace Long Beach Supervisors Employees Association (LBSEA) as the exclusive representative of a supervisors’ unit. LBSEA filed an unfair practice charge regarding the City’s processing of the Petition. The ALJ concluded that the City violated the City’s local rules, the MMBA, and PERB Regulations by: (1) applying a rule concerning revocation of proof of support that was not contained in its local rules, and (2) disclosing to IBEW the identity of two employees who had sought to revoke their support for the Petition. The ALJ dismissed all other claims. LBSEA filed exceptions regarding certain claims the ALJ dismissed, and LBSEA asked the Board to permanently bar the City from processing the Petition.

Disposition: The Board affirmed the proposed decision, finding that the City: reasonably approved IBEW’s Petition even if it arguably contained immaterial omissions; properly interpreted the contract bar provision in its local rules; and properly accepted proof of support which authorized petitioner to represent the signatories in their employment relations with the City without mentioning decertification of the incumbent representative. PERB also agreed with the ALJ that the violations LBSEA established were so limited that they would not tend to prevent a fair election from going forward, and accordingly dissolved the stay of future election proceedings.

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Decision Headnotes

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
750.01000 – In General

When evaluating an MMBA employer’s application of its local rules, PERB follows a reasonableness standard. (City of Madera (2016) PERB Decision No. 2506-M, p. 5.) PERB finds no unfair practice where the agency reasonably interprets its own rules in a manner that effectuates the MMBA’s purposes. (Ibid.) The inverse is true if the public agency acted inconsistently with a reasonable interpretation of the rule. (County of Riverside (2011) PERB Decision No. 2163-M, adopting proposed decision at pp. 8-9.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.01000 – In General; Filing Requirements

The City reasonably concluded that petitioner’s failure to include a statement required by the local rules that it would agree “to abide with any existing [MOU] covering [bargaining unit] employees” should it succeed in decertifying the incumbent bargaining representative was not required where the incumbent’s expired MOU was not an “existing” agreement for the purposes of the local rules. The City’s interpretation also avoided conflict between the local rules and precedent holding that a succeeding union is not contractually bound by an MOU its decertified predecessor executed, even if negotiations are required before implementing employment terms that deviate from the status quo. (Compton Community College District (1989) PERB Decision No. 728, adopting proposed decision at p. 69.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.01000 – In General; Filing Requirements

The City reasonably concluded that the petition adequately described the unit sought to be decertified. The City reasonably construed the local rules to mean that a recognition petition covering unrepresented positions must specify all classifications at issue, but a petition to decertify and replace an incumbent union need only identify the unit at issue. Moreover, the petitioner exercised due diligence in attempting to determine the classifications in the petitioned-for unit, both by examining the City’s website and submitting a CPRA request. Given that an MMBA employer must interpret its local rules in a reasonable manner (City of Madera (2016) PERB Decision No. 2506-M, p. 5), local rules should not be interpreted so strictly that they become a minefield freezing the status quo in place until a petitioner runs a gauntlet of unreasonably difficult requirements.

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.01000 – In General; Filing Requirements

City cannot enforce a quorum requirement that permits decertification only if a majority of unit employees participate in the vote. This provision violates the MMBA and is therefore unenforceable. (County of Imperial (2007) PERB Decision No. 1916-M, pp. 15-19.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.03000 – Stay of

When PERB stays representation proceedings pending resolution of unfair practice allegations that could impact employee free choice, PERB must determine at the close of unfair practice proceedings whether representation proceedings can resume. If the charging party fails to establish any unfair practice, representation proceedings can go forward. However, where the charging party prevails in its charge in whole or in part, PERB must assess whether the conduct found unlawful has a continuing tendency to harm employee free choice and, if so, whether PERB’s remedies, combined with the passage of time or other factors, are sufficient to remedy that tendency and permit fair representation proceedings to go forward. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470. p. 6 & adopting administrative determination at p. 4.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.03000 – Stay of

Election stay lifted following adjudication of unfair practice charge, where established violations were so limited that they would not tend to prevent a fair election from going forward. The first violation---that the City applied a rule concerning revocation of proof of support that was not contained in its EERR---has little tendency to impact employee free choice in the instant circumstances, as the only two revocations at issue were insufficient in number to change the petitioner’s proof of support and in any event, they arrived too late to be counted. The second of the two violations---that the City disclosed the identity of two employees who had sought to revoke their support for the Petition---could harm free choice for the two employees whose identities the City disclosed and possibly for other employees who learned of the disclosure. Nonetheless, PERB determined to dissolve the stay given that the record does not indicate whether the City’s disclosure tended to materially inhibit unit employees from freely deciding whether to change their exclusive representative in the coming months. To the extent evidence emerges suggesting that the City’s disclosure of two employees’ identities may, in fact, impact fair election conditions, incumbent union remains free to introduce such evidence via a post-election objection.

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.04000 – Bar To

The MMBA does not contain a “contract bar,” viz., a rule limiting new recognition or decertification petitions while an MOU is in effect. (City of San Rafael (2004) PERB Decision No. 1698-M, p. 2, fn. 2.) The absence of such statutory language provides each MMBA employer some discretion to find a reasonable balance between employees’ right of free association and the need for stable labor relations. (Id. at pp. 2-3, citing Service Employees Internat. Union v. City of Santa Barbara (1981) 125 Cal.App.3d 459.) However, an MMBA employer’s local rules may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.04000 – Bar To

PERB Regulation 61380, subdivision (c), which applies to MMBA employers that have not adopted a reasonable local rule regarding decertification, permits a decertification petition any time after an MOU expires and before a successor MOU takes effect. However, Madera held the MMBA does not require local rules to permit a decertification petition immediately upon MOU expiration, provided that the rule allows a reasonable and equitable opportunity to file decertification petitions when no MOU is in effect. (City of Madera (2016) PERB Decision No. 2506-M, p. 9; cf. County of Ventura (2018) PERB Decision No. 2600, pp. 44-45 [employer’s local rule violates the MMBA if it establishes certain dates in a calendar year when a union can file a petition to represent unrepresented employees].)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

The City properly accepted the petitioner’s proof of support which authorized petitioner to represent the signatories in their employment relations with the City without mentioning decertification of the incumbent representative, as the authorization cards provided sufficient evidence that the employees wished to both decertify and replace their exclusive representative. The MMBA does not bar petitioner’s authorization language, particularly given that, in the absence of any applicable local rule, PERB would consider IBEW’s authorization language to be sufficient proof of support for a combined decertification-recognition petition. (PERB Reg. 61350, subd. (b)(2).)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

In City of Bellflower (2021) PERB Decision No. 2770-M, PERB noted that proof of support is a unique type of statement warranting confidentiality protection. (Id. at p. 22.) The e-mails at issue here, in which two employees belatedly attempted to revoke their proof of support, were not technically proof of support documents, and in most instances such documents should not be sent to the employer, as an employer’s possession of proof of support or related documents will often constitute at least as great (if not greater) a confidentiality breach as a competing union’s possession of the same. Parties did not raise question of whether the MMBA permits a local rule in which a union must submit its proof of support to the employer, which tends to create complications such as those at issue here. (See id. at p. 20, fn. 15 [noting issue remains unsettled in the absence of any challenge].)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent, where California statutory provisions are akin to those found in federal law, we consider federal precedent for its potential persuasive value. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; Contra Costa Community College District (2019) PERB Decision No. 2652, p. 27, fn. 17; see also Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391 [when interpreting California public sector labor relations laws, federal precedent is a “useful starting point,” but it does “not necessarily establish the limits of California public employees’ representational rights”].)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

To establish a prima facie interference case, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes PERB enforces. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on business necessity. (Ibid.) In such cases, PERB balances the asserted business necessity against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business necessity was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at p. 36, fn. 19.)

407.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION
407.01000 – In General

City violated the MMBA by interfering with protected rights when it shared a competing union’s unredacted proof of support documents with incumbent union. Employees covered by the MMBA have comparable rights to those covered by EERA, which explicitly provides for proof of support confidentiality. There is no adequate basis for distinguishing the need for confidentiality under the two statutes, and disclosing proof of support documents has the same tendency to harm protected rights under the MMBA as it does under EERA and the other statutes PERB enforces.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Employer failed to show a valid business necessity justifying its decision to grant an incumbent union’s request for copies of competing union’s decertification petition proof of support documents, which tends to interfere with protected rights. The request did not establish incumbent union’s ultimate right to the requested documents. Rather, it triggered employer’s duty to assess the request and respond lawfully. Where a union’s request is presumptively relevant but would invade legally protected confidentiality or privacy interests, the employer must bargain with the requesting union to accommodate the union’s interest in the information and the legally protected privacy right. In such negotiations, narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information. Here, the employer did not engage in discussions with either union over the incumbent union’s request for proof of support documents, and the record does not reveal that the employer attempted to weigh countervailing interests. Moreover, the incumbent union did not have a need for the documents that outweighed employee confidentiality interests. Proof of support is a unique type of statement supporting a union, which labor law principles have long protected, both in the private sector and in the California public sector since the Legislature enacted a bill to reverse San Juan Unified School District (1977) EERB Decision No. 12.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality

MMBA section 3506.5, subdivision (d) consists of three clauses, providing that public agencies shall not: (1) “dominate or interfere with the formation or administration of any employee organization,” (2) “contribute financial or other support to any employee organization,” or (3) “in any way encourage employees to join any organization in preference to another.” PERB has consistently held that this provision requires an employer to remain strictly neutral when two unions are in competition with one another. The test is “whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other.” Thus, a strict neutrality violation requires neither proof of the employer’s motive nor proof that the employer conduct did, in fact, influence employees. (County of San Bernardino (2018) PERB Decision No. 2556-M, adopting proposed decision at p. 22.) An employer does not tend to tilt the scales toward or away from a union if it merely complies with its legal duty to provide information, or, conversely, honors legally protected privacy rights by instead negotiating an appropriate accommodation of privacy and the union’s need for the information. In this case, however, the employer deviated from such an approach and thereby tilted the scales toward the incumbent union.

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
750.01000 – In General

The MMBA grants local public agencies authority to adopt reasonable rules concerning union recognition, elections, and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (MMBA, § 3507, subd. (a).) However, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

The Board need not resolve exceptions that would not affect its remedial order. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) Moreover, the parties’ dispute about timing of representation petition processing involves at most minor deviations from City’s local rules during the initial months of the COVID-19 pandemic, which the Board found unlikely to recur. (See Gompers Preparatory Academy (2021) PERB Decision No. 2765, p. 14 [discussing the pandemic’s severe and unusual disruptions to all aspects of life, including labor relations proceedings].)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.) Among these statutes, only the Educational Employment Relations Act (EERA; § 3540 et seq.) and the Childcare Provider Act (CCPA; Educ. Code, § 8430 et seq.) explicitly provide that proof of support documents are confidential. (EERA, § 3544, subd. (b); Educ. Code, § 8434, subd. (c)(3) [CCPA].) Nonetheless, through rulemaking PERB has interpreted all nine statutes as requiring that proof of support documents filed with PERB are confidential. The differences in statutory wording require harmonization, and accordingly that all California labor relations statutes require confidentiality for proof of support documents. An employer may not apply its local rules in a contrary manner.

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

All California labor relations statutes require confidentiality for proof of support documents, and an employer may not apply its local rules in a contrary manner. Given that relevant protected rights are substantially the same under the MMBA and under EERA, which explicitly provides that proof of support documents are confidential (EERA, § 3544, subd. (b)), there is no plausible basis for the Legislature to believe that in one instance proof of support may be shared with a competing union while in the other instance such sharing is impermissible. The absence of confidentiality language in seven of the nine statutes PERB enforces is incidental, meaning that confidentiality is required as it is necessary to protect other rights in the statute.