PERB Grants IR In City Of Fremont Case

Public Employment Relations Board (SEIU Local 1021) v. City of Fremont (Alameda County Superior Court Case No. RG13677821) (PERB Case No. SF-CE-1028-M)

PERB recently granted a request for injunctive relief (IR) filed by SEIU Local 1021 against the City of Fremont (City). The case began when a bargaining unit employee submitted a petition, with the required proof of support, seeking to decertify SEIU. The City accepted the petition and began preparing to hold a decertification election. Shortly thereafter, the City concluded that the official recognized employee organization was the Fremont City Employees Association (FACE), and not SEIU; and that FACE was merely affiliated with SEIU. Based on this fact, the City sent the petitioner a letter concluding that the City’s decertification procedures were not applicable and that the appropriate procedure would be for FACE to seek disaffiliation from SEIU. That employee subsequently notified the City that FACE had conducted an internal election to disaffiliate from SEIU. However, the City then received a letter from FACE stating that no election had taken place and that FACE remained affiliated with SEIU. Faced with these completing claims, the City stopped bargaining with SEIU and withheld dues to SEIU until the dispute was resolved.

SEIU filed an unfair practice charge and requested IR. PERB granted the IR request. In arguing that there was reasonable cause to believe an unfair practice had occurred, PERB cited to the following actions by the City: 1) improperly processing the decertification petition; 2) failing to arrange for a neutral third party to conduct the decertification election; 3) unlawfully assisting the employee by providing legal advice; 4) refusing to bargain with SEIU and withholding dues; and 5) violating its duty of neutrality by expressing support for FACE over SEIU.

As for irreparable harm, PERB argued that the City had essentially “locked out” SEIU and that the purposes of the MMBA would be subverted without IR. PERB asserted that the failure to bargain in good faith has long been understood as likely causing irreparable injury to the union. Even if monetary relief could be awarded, employees could not be made whole for the value of the right to enjoy union representation, according to PERB.

PERB filed its complaint and requested a Temporary Restraining Order (TRO) on May 1, 2013. The superior court granted the TRO on May 7, 2013.

Comments:

Because they are so rare, every IR granted by PERB is worth examining. Most IR’s granted by PERB involve either: 1) an election, or 2) a health and safety issue. The election cases typically involve some organizational effort that, without prompt injunctive relief, would be rendered meaningless with the passage of time. This case is somewhat unique in that the City did not appear to be moving ahead with an election, but rather trying to maintain the status quo in the face of a potential question concerning representation (QCR).
In terms of “reasonable cause” for the TRO, I want to comment on 2 of the 5 alleged unfair practices. First, PERB alleged that the City committed an unfair practice by failing to arrange for a neutral third party to conduct the decertification election. PERB alleged that because the City included a “no representation” option on the ballot that the City inserted itself as an interested party in the election and therefore was not a “neutral” party. This is one area where PERB caselaw is sparse. MMBA section 3507.1(c) does require a neutral third party to be involved in most determinations for exclusive or majority representation. At least on its face, section 3507.1 does not apply to severance or decertification elections. So it appears that the Office of the General Counsel has taken the position that the “neutral party” requirement for conducting elections should be extended to decertification elections.
Most local rules already call for the use of a neutral third party, like the State Mediation and Conciliation Service (SMCS), to conduct elections. So PERB’s position shouldn’t have much of a practical effect on most employers. I will note that it used to be SMCS’ position that it would not conduct an election if one of the parties objected. So here, if SEIU asserted that the decertification election was improper, it’s not clear to me that SMCS would have agreed to conduct the election. However, although SMCS is the most popular election service in the public sector, there are other “neutral” parties that can be contracted to conduct an election.
Now that the State Mediation and Conciliation Service (SMCS) is part of PERB, PERB is promulgating regulations to govern elections conducted by SMCS in MMBA jurisdictions. My understanding is that SMCS does not intend to charge for this service (which they do now). If having SMCS conduct an election is going to be free, that seems like a great option to me.
Second, PERB alleged that the City improperly gave the petitioner legal advice. PERB suggested that merely pointing out technical deficiencies would have been fine. However, PERB alleged that the City went too far by opining that disaffiliation, not decertification, was the appropriate procedure and suggesting that it supported the disaffiliation effort. This caught my attention because PERB is drawing a very fine line for employers to walk. It can easily trap the unwary. Here, my initial thought was that it was reasonable for the City to explain to the petitioner why disaffiliation, and not decertification, was appropriate in this situation. It seems to me the City was just explaining its local rules to an interested party. However, together with other actions by the City, PERB felt this went too far. So an employer faced with such a situation will want to be very careful in its communications with any party.
Finally, it’s worth pointing out that PERB has taken a very aggressive stance here in terms of irreparable harm. Here, there is no organizing effort to protect. Rather, the City felt it needed to maintain the status quo in the face of a QCR. Obviously, PERB did not believe there was a QCR. But still, it’s an aggressive stance to take that the mere delay in bargaining constitutes irreparable harm. I wonder if this might signal a more aggressive use of the IR process by PERB in the coming years.