Decision A403M – City of Fremont

The Office of the General Counsel (or Board agent), not the Board itself, investigates and determines in the first instance whether an election should be stayed because of a pending unfair practice charge. When a union’s contentions in its position statement put the Office of the General Counsel on notice of “alleged unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice,” it is incumbent on the Office of the General Counsel to conduct an investigation pursuant to PERB Regulation 61190.

In the absence of local rules, agency fee rescission petitions under the MMBA are governed by section 3502.5(d) and PERB Regulations 61000 and 61600 et seq. Once the Office of the General Counsel has conducted its investigation of threshold issues concerning a rescission election and issued an administrative decision containing a statement of issues, fact, law and rationale, such decision may be appealed to the Board itself under PERB Regulation 32360, pursuant to PERB Regulation 61060. Under PERB Regulation 32370, which provides, in pertinent part, that “[t]he Board may stay the matter, except as is otherwise provided in these regulations,” the question of whether a rescission election should be stayed is “otherwise provided in these regulations,” i.e., by PERB Regulation 61190, under which the issue whether to stay a rescission election should be investigated and decided by the Office of the General Counsel. A request for the Board itself to decide a stay of a rescission election is premature when the Office of the General Counsel has yet to investigate whether the election should be blocked pursuant to PERB Regulation 61190, as well as whether the petition was timely filed, both of which determinations may be appealed to the Board under PERB Regulation 32360. An interlocutory order, governed by PERB Regulation 32200, contemplates an appeal from a board agent ruling made in the course of a hearing, not a letter by the Office of the General Counsel determining the sufficiency of the proof of employee support for a rescission election and ordering that such an election to be conducted. PERB treats Board agents’ determinations regarding rescission elections as administrative decisions under PERB Regulation 32350, and therefore subject to appeal under PERB Regulation 32360.

When conducting an initial investigation of an agency fee rescission petition, PERB Regulation 61620(a) mandates that the Office of the General Counsel address the mixed question of fact and law raised by a union’s contention that a rescission petition is untimely because of the status of the MOU and the statutory language of MMBA section 3502.5(d).