Decision A497M – City and County of San Francisco

SF-SV-132-M

Decision Date: October 17, 2022

Decision Type: Administrative Appeal

Description:  This matter came before the Board on the San Francisco Deputy Sheriffs’ Association’s appeal of an administrative determination by PERB’s Office of the General Counsel (OGC). The Association filed a severance petition (Petition) seeking to sever five classifications from existing bargaining units in the City and County of San Francisco (City) currently exclusively represented by Service Employees International Union Local 1021 (SEIU). OGC issued an administrative determination finding that PERB has jurisdiction over the Petition because the City’s local rules do not include a provision that can accomplish severance without an undue burden on the Association, and as a result PERB Regulations apply to “fill the gap.” However, OGC found the Petition was untimely under PERB Regulations and dismissed the Petition. The Association appealed, arguing that the City’s local rules required the City to apply PERB Regulations and process an earlier severance request the Association filed directly with the City, and that PERB erred by not correcting the City’s failure to do. SEIU filed a timely response, urging that OGC should have dismissed the Petition for lack of jurisdiction as the City’s local rules provide a process to remove classifications from a bargaining unit and become formally recognized as an exclusive representative, and further that whether an “undue burden” exists is a factual question that should be adjudicated through a formal hearing.

Disposition:  The Board affirmed OGC’s findings that PERB has jurisdiction over the Petition because the City’s local rules do not include a provision that can accomplish severance without an undue burden, and that applying that PERB Regulations the Petition was untimely. The Board therefore dismissed the Petition.

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Perc Vol: 47
Perc Index: 74

Decision Headnotes

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

The process for challenging the application or existence of local rules as contrary to the MMBA is an unfair practice charge. (City of Parlier (2015) PERB Order No. Ad-421-M, p. 8.) The Association had a right to file an unfair practice charge, alleging that the City’s local rules themselves violate the MMBA or that their application in this instance was unreasonable, but that allegation could not be resolved as part of the Association’s severance petition. (p. 29.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.)

1308.00000 – REPRESENTATION ISSUES; SEVERANCE
1308.01000 – In General

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.” Such local rules may include provisions for, among other things, recognizing employee organizations and determining appropriate bargaining units. (MMBA, § 3507, subd. (a)(3), (4); County of Monterey (2022) PERB Decision No. 2821-M, p. 9.)

When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) The Board found the City’s ERO provides no avenue for processing a severance request without unduly burdening a petitioner, finding that PERB had jurisdiction over the petition, but dismissing it due to untimeliness. (pp. 16-22; 29-30.)

1311.00000 – REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS
1311.02000 – Procedural Issues

When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) Here, the Board analyzed whether the City’s ERO contained rules that can accomplish severance without an undue burden, and found that it did not. (p. 16.)

1311.00000 – REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS
1311.02000 – Procedural Issues

PERB Regulation 61420 provides “[w]henever a severance petition is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election, or take such other action as deemed necessary to decide the questions raised by the petition.” PERB recently noted that under a comparable regulation implementing the Educational Employment Relations Act (EERA), “[t]here is ‘no guarantee or entitlement to an evidentiary hearing.’” (Alliance Morgan McKinzie High School, et al. (2022) PERB Order No. Ad-491, p. 13, quoting Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 16.) Rather, after completing an investigation, the Board agent may either “determine that sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary hearing,” or “that no material issue of fact exists and thus that a hearing is unnecessary.” (Id. at p. 17.) The Board applies an abuse of discretion standard in reviewing a Board agent’s determination whether to conduct a hearing in a representation matter. (Robert L. Mueller Charter School (2003) PERB Order No. Ad 320, p. 11.) Here, the Board found that there were no disputed material facts and thus OGC did not abuse its discretion by declining to hold a hearing. (pp. 22-24.)

1403.00000 – GENERAL LEGAL PRINCIPLES; ESTOPPEL
1403.01000 – In General

The doctrine of judicial estoppel prohibits a party from successfully taking inconsistent positions in the same or different judicial proceedings. (Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, pp. 36-37 (Alliance) (judicial appeal pending); Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).) Judicial estoppel applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 183.) The doctrine’s purpose is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 181.) In this matter, the Board declined to consider whether the City should be estopped from asserting it cannot apply PERB Regulations because the Association failed to fully raise or argue the matter, nor was it addressed in an earlier order to show cause. (pp. 26-27.)

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

PERB is not bound by the findings and conclusions of another administrative decision unless collateral estoppel applies. (San Diego Unified School District (1991) PERB Decision No. 885, p. 74). The doctrine of collateral estoppel precludes the relitigation of an issue already decided in another proceeding where: (1) the issue decided in the prior proceeding is identical to that sought to be relitigated; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party in the prior proceeding. (State of California (Department of Developmental Services) (1987) PERB Decision No. 619-S, p. 14, citing People v. Sims (1982) 32 Cal.3d 468, 484.) Collateral estoppel effect may be given to decisions of administrative agencies when: (1) the agency is acting in a judicial capacity; (2) it resolves disputed issues of fact properly before it; and (3) the parties have had an adequate opportunity to litigate such disputed issues. (State of California (Department of Developmental Services), supra, pp. 14-15; People v. Sims, supra, 32 Cal.3d at p. 484.) In this matter, the Board did not proceed past the first step of analysis, as the issues decided in the prior proceeding were not identical to those raised by the Association’s severance petition. (pp. 27-28.)