Decision 2773M – City of Glendale

IBEW’s “corrected” exceptions were untimely as they were filed past the filing deadline and it presented no good cause to excuse its late filing. While PERB Regulations do not establish a right to file “corrected” documents after the due date, that was inconsequential here as IBEW’s corrected exceptions did not substantially aid the Board’s review of the proposed decision in any event. Rather, IBEW largely reiterated arguments the ALJ addressed, often without citing to the record as required by PERB Regulation 32300, subdivision (a). Thus, the Board considered IBEW’s corrected exceptions only to the extent they included record citations that assisted its review. (pp. 17-18.)

To prevail in a facial challenge, a charging party must at a minimum show that a local rule conflicts with the Meyers-Milias-Brown Act (MMBA) “in the generality or great majority of cases.” Toward that end, IBEW argued that the City’s Employee Relations Ordinance was unreasonable because it appointed the City Manager, an “agent of the City compelled to act in the interest of the City,” to make unit determinations. IBEW’s argument missed the mark. 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.” (Ibid.) The rules and regulations may include provisions for, among other things, recognition of employee organizations. (Id., subd. (a)(3).) Unit determinations must be handled and processed in accordance with rules adopted by a local public agency. (Id., § 3507.1, subd. (a).) Contrary to IBEW’s bare claim, nothing in the MMBA’s statutory language expressly or impliedly prohibits agency employers from making unit determinations. (p. 20.)

The Board rejected IBEW’s facial challenge to City’s local rule. Well before PERB assumed jurisdiction over the Meyers-Milias-Brown Act (MMBA) in 2001, local agencies were authorized to make initial determinations as to the appropriateness of bargaining units. The standard then, as now, is whether such a determination is reasonable. The mere fact that a local rule allows for a local agency’s agent or governing board to have the final authority on representation issues does not make the rule unreasonable. Thus, the Employee Relations Ordinance did not facially violate the MMBA merely by vesting the City Manager with the authority to process and hear unit determination petitions. (pp. 20-21.)

Well before PERB assumed jurisdiction over the Meyers-Milias-Brown Act (MMBA) in 2001, local agencies were authorized to make initial determinations as to the appropriateness of bargaining units. The standard then, as now, is whether such a determination is reasonable. The mere fact that a local rule allows for a local agency’s agent or governing board to have the final authority on representation issues does not make the rule unreasonable. Thus, the Employee Relations Ordinance did not facially violate the MMBA merely by vesting the City Manager with the authority to process and hear unit determination petitions. (pp. 20-21.)

The Board rejected IBEW’s contention that it should apply a heightened level of scrutiny to a local agency employer’s unit determination when an agent of the employer oversees the recognition process. Inherent in IBEW’s argument was the assumption that unit recognition petitions are fundamentally adverse to the interests of an employer, and that PERB therefore must presume a likelihood of bias if an employer vests its agent with authority to adjudicate such issues. PERB operates under no such presumption, however, and instead finds bias or unlawful motive only where the record proves it by a preponderance of the evidence. For over four decades the Meyers-Milias-Brown Act has permitted local agencies, and by extension their agents such as employee relations officers and human resources managers, to preside over unit determinations pursuant to their own reasonable local regulations. That statutory authority remains intact. Thus, the Board rejected IBEW’s facial challenge. (pp. 21-22.)

Because IBEW should have raised its personal bias argument during the unit determination hearing, the Board ultimately dismissed the claim on waiver grounds. IBEW should have requested before or during the 2017 unit determination hearing that the City replace the City Manager or that he recuse himself from hearing the petition. The core principle is that “[e]vidence of bias or any lack of neutrality by PERB, its ALJs or any of its agents should be brought to the attention of the Board immediately.” (Hacienda-La Puente Unified School District (1997) PERB Decision No. 1186, p. 11.) In the instant case, IBEW had several opportunities after it filed its petition to move for the City to replace the City Manager or to ask the City Manager to recuse himself. Instead, IBEW argued for the first time at the PERB hearing that the City Manager’s bias disqualified him from considering the unit petition. IBEW claimed that it would have been futile to move for the City Manager’s recusal at the 2017 hearing because he denied IBEW’s similar request at the 2013 hearing on another employee organization’s severance petition. The 2013 events standing alone are not sufficient to establish futility, and IBEW therefore should have afforded the City an opportunity to address the issue and, in doing so, preserve its position that the City was unreasonably applying its Employee Relations Ordinance by letting the City Manager decide the appropriateness of the petitioned-for unit. (pp. 22-24.)

Because IBEW should have raised its personal bias argument during the unit determination hearing, the Board ultimately dismissed the claim on waiver grounds. IBEW should have requested before or during the 2017 unit determination hearing that the City replace the City Manager or that he recuse himself from hearing the petition. The core principle is that “[e]vidence of bias or any lack of neutrality by PERB, its ALJs or any of its agents should be brought to the attention of the Board immediately.” (Hacienda-La Puente Unified School District (1997) PERB Decision No. 1186, p. 11.) In the instant case, IBEW had several opportunities after it filed its petition to move for the City to replace the City Manager or to ask the City Manager to recuse himself. Instead, IBEW argued for the first time at the PERB hearing that the City Manager’s bias disqualified him from considering the unit petition. IBEW claimed that it would have been futile to move for the City Manager’s recusal at the 2017 hearing because he denied IBEW’s similar request at the 2013 hearing on another employee organization’s severance petition. The 2013 events standing alone are not sufficient to establish futility, and IBEW therefore should have afforded the City an opportunity to address the issue and, in doing so, preserve its position that the City was unreasonably applying its Employee Relations Ordinance by letting the City Manager decide the appropriateness of the petitioned-for unit. (pp. 22-24.)

The ALJ wrongly presumed the City Manager’s bias was extinguished by the passage of time. In the absence of Board precedent on this issue, the ALJ analogized to Board decisions addressing retaliation claims—specifically, when temporal proximity between protected activity by an employee and allegedly retaliatory conduct by an employer can constitute evidence of a causal connection between the two. The ALJ concluded that evidence of City Manager’s bias from 2013 was “too remote in time” to prove that he was still biased against IBEW four years later when he conducted IBEW’s unit determination hearing and rendered the decision on IBEW’s petition. In the context of retaliation allegations, the Board has found that “proximity in time between the protected activity and the adverse action goes to the strength of the inference of unlawful motive, but is not determinative by itself.” The Board found it logical to view timing with respect to bias allegations in the same manner, i.e., the timing nexus exists on a continuum, such that no particular amount of time is dispositive for a finding of bias. In other words, while the Board agreed with the ALJ’s decision to analogize to PERB’s precedent on retaliatory animus, it disagreed with the ALJ’s statement that a four-year gap is necessarily too long for animus or bias to remain, especially given that the Board has recognized that management’s first opportunity to act out of animus may not come for a significant period of time. Therefore, absent IBEW’s waiver, it would have been appropriate for the ALJ to weigh all the evidence as to whether the City Manager demonstrated a “clear disposition” against IBEW. (pp. 24-25.)

While a severance petitioner has the burden of proving its proposed unit is an “appropriate unit,” it need not demonstrate that its proposed unit is “the ultimate unit or the most appropriate unit.” Most importantly, however, a severance petitioner must show that the proposed unit has a community of interest “separate and distinct” from other employees in the existing bargaining unit. (pp. 26-27.)

While a severance petitioner has the burden of proving its proposed unit is an “appropriate unit,” it need not demonstrate that its proposed unit is “the ultimate unit or the most appropriate unit.” Most importantly, however, a severance petitioner must show that the proposed unit has a community of interest “separate and distinct” from other employees in the existing bargaining unit. However, when the existing bargaining unit was certified by PERB, the severance petitioner must also show that the proposed unit is “more appropriate” than the existing unit. (pp. 26-27 & fn. 14.)

When PERB evaluates a public agency’s unit determination under its local rules, our inquiry is limited to whether the agency’s determination was reasonable, provided the determinations conform to the MMBA and the employer’s local rules. The party challenging a unit determination has the burden of demonstrating the decision was not reasonable. (p. 27.)

Although the City Manager’s analysis in the unit determination was not extensive in every instance, the City’s unit determination was sufficiently reasoned and explained, and consistent with the Meyers-Milias-Brown Act and the Employee Relations Ordinance. (p. 37.)