State of California (Unit 12) (PERB 0390S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION, SEIU, AFL-CIO,
Employee Organization, Appellant,
and
INTERNATIONAL 	UNION OF OPERATING
ENGINEERS, 	STATE OF CALIFORNIA
LOCALS 	3, 	12, 	39 	and 501, AFL-CIO,
Employee 	Organization.
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) 	Case No. 	S-D-70-S
PERB 	Decision 	No. 	390-S
July 	6, 	1984
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Appearances; 	Bernard L. 	Allamano, 	Chief Counsel 	for 	California
State Employees' Association, SEIU, AFL-CIO; Walt Norris,
Director, 	Public Employees 	for 	International Union of Operating
Engineers, 	State of California Locals 3, 	12, 	39 and 501,
AFL-CIO.
Before Tovar, Jaeger, Morgenstern and Burt, Members.*
DECISION
The California State Employees' 	Association, 	SEIU, AFL-CIO
(CSEA) 	appeals 	an 	administrative 	determination 	by a 	regional
representative 	of 	the 	Public Employment 	Relations Board 	(PERB
or Board) 	denying CSEA's 	request 	to place 	a decertification
petition 	in 	abeyance 	pending 	completion 	of AFL-CIO Article 	XX
"no 	raiding" 	proceedings. 	After 	a 	complete 	review of 	the
record 	and CSEA's 	arguments 	on appeal 	in 	this case, 	the Board
*Chairperson Hesse 	recused 	herself 	from participating 	in
this case.
_______ )

affirms 	the 	attached 	regional 	representative's 	findings of 	fact
and 	conclusions 	of 	law 	and 	herein 	incorporates 	his
determination.
In 	affirming 	the 	underlying decision, 	we 	approve 	the
regional 	representative's 	reasoning 	with 	the 	following
additional comments: 	The Board 	notes 	that 	the 	decertification
petition 	was 	filed 	four 	months prior 	to 	the 	receipt of 	the
request 	for 	deferral 	to 	the AFL-CIO process. 	As of 	this 	date,
no decision 	has 	been 	issued 	by 	that organization, 	and CSEA
concedes 	that 	the 	process 	may 	take as 	long 	as 	six months.
Since 	a 	petition 	to 	decertify 	raises 	a question concerning
representation 	(QCR), 	it 	is 	important to resolve the matter
expeditiously. 	The Board 	has 	no 	information 	as 	to what 	is
occurring 	in Unit 	12, 	but we are 	aware 	that 	the State 	is
currently 	engaged 	in 	negotiations 	with 	CSEA 	regarding 	other
units. 	Although 	we 	have 	not 	yet 	considered 	the 	rights 	and
obligations 	of 	the 	employer 	and 	incumbent 	representatives 	under
the State Employer-Employee Relations 	Act1 (SEERA) 	when 	a QCR
has 	been 	raised 	by 	the 	filing of 	a 	severance 	or 	decertification
petition, 	it 	is not 	unlikely 	that 	these 	issues will 	surface
should 	the 	petition here 	result 	in 	a change of 	representative.
(See 	Pittsburg Unified School District 	(6/10/83) 	PERB Decision
No. 	318; 	but see Dresser Industries, 	Inc. 	(1982) 	264 NLRB 145
[111 	LRRM 	1346].)
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et 	seq.
2

Suffice 	to 	say 	that 	this 	uncertainty, 	the 	time 	that 	has
already passed 	since 	the 	petition 	was 	filed, 	and 	the 	prospect
of 	a 	significant 	further 	delay 	in 	the 	ultimate 	resolution of
the 	existing QCR create 	a dilemma 	for 	both 	the 	State 	and 	the
unit 	employees 	in 	that 	they 	do not 	know where 	they 	stand 	or 	how
to proceed 	with 	contract 	negotiations. 	Under 	these
circumstances, 	the Board's 	responsibility to process 	the
petition 	and 	proceed 	with 	the 	election 	outweighs 	the value 	of
the 	time 	and 	expense 	which might 	result 	from 	a possible
withdrawal 	of 	the 	petition 	consequent 	to 	a 	settlement of 	the
dispute 	between 	petitioner 	and 	CSEA.2 Moreover, 	while 	we
usually 	prefer 	and 	encourage 	the 	private 	resolution of
disputes, 	this 	unilateral 	request 	for Board 	deferral 	to 	such
private 	resolution 	is 	opposed 	by 	the 	petitioner.3
The Board 	finds 	it 	neither 	necessary nor 	wise 	to establish
in 	this 	case 	a 	finite policy on deferral 	to 	such 	external
2The Board 	has 	no assurance 	that 	the 	arbitrator's 	award
in 	the 	pending Article 	XX proceeding 	will not be 	appealed,
prolonging 	the 	delay, 	or 	that 	the 	organization 	that does 	not
prevail 	will 	not 	continue 	to press 	for PERB 	resolution of 	the
representation questions. 	In 	the 	latter 	event, 	we do not
believe 	the Board 	can or 	should, 	in deference 	to an AFL-CIO
internal 	adjudication, 	abdicate 	its 	statutory obligation 	to
resolve 	the 	issues 	raised 	by 	the petitions.
3 In 	contrast, 	the PERB 	representative agreed 	to hold 	in
abeyance 	the 	severance 	petitions 	in 	related 	case Nos. 	S-R-761-S
and 	S-R-762-S 	because 	CSEA's 	request 	was 	joined 	by 	petitioners,
the 	International Brotherhood 	of Electrical Workers,
Local 1245, 	AFL-CIO and 	the 	International Brotherhood 	of
Electrical Workers, AFL-CIO.
w
	3

proceedings. 	Considering 	the 	nature of public 	sector
bargaining, 	particularly 	the 	virtually 	uniform practice 	of
conducting 	contract 	negotiation 	sessions 	during 	the 	pre-budget
spring months, 	and 	the pressure 	to 	reach 	agreement prior 	to
budget 	adoption, 	it would be 	advisable 	to consider 	each 	such
request 	on 	its 	merits 	and 	in 	light of 	the 	specific
circumstances.
The 	director 	of 	representation 	should 	proceed 	as
expeditiously as 	possible 	with 	the 	elections.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment 	Relations Board 	hereby AFFIRMS 	the
regional 	representative's 	denial 	of 	the 	California 	State
Employees' 	Association's 	request 	to hold 	the 	decertification
petition 	of 	the 	International 	Union 	of 	Operating Engineers,
Locals 3, 	12, 	39, 	and 501, AFL-CIO in abeyance and ORDERS the
regional director 	to proceed 	expeditiously with 	the 	election.
By 	the BOARD.
4

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEADQUARTERS OFFICE
1031 18th STREET
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3088
May 	23, 	1984
Leo Mayer, 	President
California 	State Emp. Assn.
1108 	"O" 	Street
Sacramento, 	CA 	95814
Walt 	Norris, 	Director/Public 	Emp.
IUOE, Local 39, 501, 3 & 12, AFL-CIO
337 	Valencia 	Street
San Francisco, 	CA 	94103
William R. Mundt, Int'l. 	Rep.
International 	Brotherhood 	of 	Elec.
Workers
1934 	Oberlin Avenue
Thousand Oaks, 	CA 	91360
Lane Kirkland, 	President
American Fed. 	of Labor 	and
Congress 	of 	Industrial Org,
815 	16th 	Street N.W.
Washington, 	D.C, 	20006
Ann Miley, 	Staff Attorney
IBEW, 	Local 1245, AFL-CIO
P.O. 	Box 4790
Walnut Creek, 	CA 	94596
Michael 	Frost, 	Director
Dept, of Personnel Admin..
1115 	11th 	Street
Sacramento, 	CA 	95814
RE: 	Abeyance 	Requests 	- Case Nos. 	S-R-761-S; 	S-R-762-S; 	S-D-70-S
Dear 	Interested 	Parties;
This 	is 	an administrative 	decision 	issued 	in 	response 	to 	the
requests 	of 	the 	California 	State 	Employees 	Association 	(CSEA)
to place 	certain 	representation 	cases 	in 	abeyance.
CSEA has 	been 	the 	exclusive 	representative of 	the 	employees 	in
State Employee-Employer Relations Act 	(SEERA) 	Unit 12 	(craft •
and maintenance 	employees) 	since CSEA was 	certified on July 10,
1981.
On March 	5, 	1984, 	the 	International 	Brotherhood of 	Electrical
Workers, 	Local 	1245, 	AFC-CIO and 	the 	International 	Brotherhood
of Electrical Workers, 	AFC-CIO 	(IBEW) 	filed two 	severance
petitions 	(S-R-761-S 	and 	S-R-762-S) 	by 	which 	IBEW 	seeks 	to
replace 	CSEA as 	exclusive 	representative 	of 	two 	separate 	groups
of 	employees 	currently 	within 	SEERA Unit 	12.
On March 13, 	1984, 	the International Union of Operating
Engineers 	Crafts 	and Maintenance Division, 	State of California,
Local 39, 	501, 	3 and 12 	(IUOE) 	filed a decertification petition
by which 	it 	seeks 	to 	replace 	CSEA as 	exclusive 	representative
for all of SEERA Unit 12 	(S-D-70-S).
All 	three 	petitions 	were 	timely 	filed with 	adequate 	proof 	of
support.

May 23, 	1984
Page 	2
The 	American Federation 	of 	Labor 	and 	Congress 	of 	Industrial
Organizations 	(AFL-CIO) 	filed 	a 	request with PERB 	on
March 	12, 	1984 	asking PERB 	to 	place 	IBEW's 	severance 	petitions,
S-R-761-S 	and 	S-R-762-S 	in 	abeyance. 	By 	letters 	of 	March 	26
and April 	25, 	1984, 	CSEA asked 	that 	IBEW's 	severance 	petitions
and 	IUOE's 	decertification petition 	be 	placed 	in 	abeyance.
Abeyance 	was 	sought 	to 	allow 	for 	completion 	of 	proceedings
initiated 	by CSEA 	against 	IBEW 	and 	IUOE 	under 	the 	provisions of
Article 	XX 	of 	the 	AFL-CIO 	constitution,1
CSEA 	affiliated 	with 	SEIU on February 	4, 	1984, 	thus 	becoming 	an
AFL-CIO affiliate. 	IUOE, 	petitioner 	in Case No. 	S-D-70-S, 	and
IBEW, 	petitioner 	in Case Nos. 	S-R-761-S 	and S-R-762-S, 	are also
AFL-CIO affiliates 	and, 	as 	such 	are subject 	to Article 	XX.
Efforts 	to 	settle 	the 	raiding disputes 	under Article 	XX
procedures 	have 	not 	been 	successful. 	Hearing 	before 	an
impartial umpire 	is 	scheduled 	for May 31, 	1984 	between CSEA and
IUOE 	concerning 	the 	unit 	petitioned 	for 	in S-D-70-S 	and 	for
June 	1, 	1984 	between CSEA 	and 	IBEW concerning 	the 	units
petitioned 	for 	in 	S-R-761-S 	and 	S-R-762-S,
On April 	26, 	1984, 	all 	interested 	parties were 	asked 	to 	submit
facts 	and 	legal 	argument 	regarding 	the 	abeyance 	requests.
Initial 	submissions 	were 	received 	by May 	7, 	1984. 	Responses
were 	received by May 	17, 	1984.
IUOE 	opposes 	CSEA's 	request 	to have PERB 	place 	their 	petition
in 	abeyance 	until 	the Article 	XX proceedings 	have 	concluded.
IBEW, 	on 	the 	other 	band, 	has 	joined 	in CSEA's 	request regarding
it's petitions.
1Article 	XX 	of 	the 	AFL-CIO constitution 	is 	a multi-step
procedure 	for 	resolving 	representational 	disputes 	among
affiliates. 	The 	steps 	include mediation, 	and 	if 	voluntary
settlement 	is 	not 	reached 	within 	14 	days, 	hearing 	before 	an
impartial 	umpire. 	An 	umpire's 	determination may 	be 	appealed 	to
the President of 	the AFL-CIO who 	refers 	the 	appeal 	to 	a
subcommittee 	of 	the Executive Council. 	The 	subcommittee may
disallow 	an 	appeal or 	refer 	it 	to 	the Executive 	Committee
Article 	XX Appeals 	Committee. 	Sanctions 	(including 	loss 	of
Article 	XX protection) 	may 	be 	imposed 	against 	an 	affiliate 	that
fails 	to 	comply with 	the 	final 	determination.
•

May 23, 	1984
Page 	3
It 	has 	been PERB's practice 	in 	representation 	cases 	to honor 	a
petitioner's 	request 	to hold 	its 	own 	filings 	in 	abeyance.
Therefore, 	the 	request made 	by IBEW 	to place 	Case Nos. 	S-R-761-S
and 	S-R-762-S 	in 	abeyance 	is 	granted 	until 	further 	notice.
IUOE's 	opposition 	necessitates 	a different 	analysis 	concerning 	the
request 	to place Case No, 	S-D-70-S 	in 	abeyance, 	since IUOE 	is
petitioner 	in 	that case.
A 	primary purpose 	of 	the 	SEERA 	is 	to allow 	the 	employees 	in an
appropriate 	unit 	to 	select 	one 	employee 	organization 	as 	their
exclusive 	representative 	in 	dealing 	with 	the 	state 	on employment
relations 	matters. 	(Government 	Code 	section 	3512)2 	The
employees* 	right 	to 	select 	an exclusive 	representative 	is more
explicitly 	defined 	in 	section 	3515?
Except 	as 	otherwise 	provided 	by 	the
Legislature, 	state 	employees 	shall 	have 	the
right 	to 	form, 	join, 	and"participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose of
representation on 	all 	matters 	of
employer-employee 	relations.
SEERA 	does 	not 	contain 	procedures 	for 	resolving 	questions
concerning 	representation. 	However, 	by section 3520.5 	(b) 	PERB
is 	enjoined 	to 	"establish 	reasonable 	procedures 	for 	petitions
and 	for 	holding elections 	. 	. 	. 	." 	This
statutory mandate 	is 	reinforced 	in 	section 	3541.3. 	See,
particularly, 	subsections 	(c) 	(arrange 	for 	and 	supervise
elections), 	(e) 	(decide contested decertification matters), 	and
(n) 	(take other 	action to discharge 	its powers 	and duties).
Pursuant 	to 	its 	rulemaking 	authority PERB 	has 	adopted
regulations 	concerning 	the 	filing 	and 	processing 	of 	a
decertification petition. 	Cal. Admin. 	Code, 	title 8, 	section
32770-32776. 	The 	regulations provide 	that 	"upon 	receipt of 	a
petition 	for 	decertification, 	the Board 	shall 	investigate 	and,
where 	appropriate, 	conduct a hearing 	and/or 	an 	election or 	take
such other 	action as necessary." 	(Calif,. Admin. 	Code, 	title 8,
sec. 	32776 	(a).) 	They make 	no mention of Article 	XX
proceedings 	or 	no-raiding 	procedures 	generally.
2A11 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.

May 23, 	1984
Page 	4
In 	contrast, 	the National Labor 	Relations Board 	promulgated
rules 	in 	March 	1980 	which 	direct NLRB 	regional 	offices 	to
notify 	the 	president 	of 	the AFL-CIO 	whenever 	a 	representation
case 	is 	filed 	which 	includes 	at 	least 	two affiliates 	of 	the
AFL-CIO among 	the 	parties 	if 	one 	of 	them has 	been 	recognized 	as
an 	exclusive 	representative 	by 	the 	employer 	for 	at 	least 	1 year
or 	has 	been 	certified. 	(National Labor 	Relations Board
Casehandling Manual 	(Part Two) 	Representation Proceedings
(October 	1975) 	section 	11052.1.)
Under 	the NLRB 	rules, 	"in 	all cases 	in which 	the petitioner 	is
an 	affiliate 	of 	the AFL-CIO," 	formal 	action on 	the 	petition 	is
delayed 	for 	30 	days, 	"if 	necessary, 	from the date of
notification 	to 	the AFL-CIO president 	(and others) 	to permit
use 	of 	the 	settlement 	provisions 	of 	the 	agreement 	(Article
X X ) " . 	If Article XX has been 	invoked but the procedure is not
completed 	within 	the 	30 	day 	period, 	the 	Regional 	office 	is 	to
consult 	the Executive 	Secretary 	of 	the Board 	before 	taking
further 	action on 	the 	case, 	(ibid., 	section 	11052.1 	(c).) 	The
NLRB 	rationale 	for 	adopting 	the 	procedure 	is 	that 	it 	"avoids
unnecessary case-processing 	effort 	by 	allowing 	time 	for
operation 	of 	the 	no-raid 	machinery 	which 	may 	result 	in
withdrawal 	of 	the 	petition." 	(ibid., 	section 1l052, l(e).)
Before 	adoption of 	the 	above 	described 	rules, 	the NLRB's policy-
had 	been 	to 	not 	consider 	Article 	XX 	determinations 	as
dispositive 	of questions 	concerning 	representation. 	Nor, 	at
least 	under 	certain 	circumstances, 	would 	the NLRB 	allow 	a
decertification 	petitioner 	to withdraw 	a petition 	because of 	an
adverse 	Article 	XX 	determination. 	Cadmium 	and 	Nickel Plating,
Division 	of Great 	Lakes 	Industries, 	Incs. 	and Metal Polishers
an Buffers, 	Platers 	and Helpers 	International Union, 	AFL-CIO
124 NLRB 50, 	44 LRRM 1387 	(1959), 	upheld on appeal,
International Union of 	Doll 	and Toy Workers 	v. 	Metal Polishers
Union, 	180 F.Supp.280, 	45 LRRM 2567 	(S.D. 	Cal.1960)
Anheuser-Busch, 	Inc. 	(1979) 	246.NLRB No. 	3, 	102 LRRM 1422.
As 	expressed 	in 	Great Lakes 	Industries, 	the NLRB 	was 	concerned
that 	reliance 	on Article 	XX 	determinations 	by 	the NLRB 	"would
be 	to 	permit 	a 	private 	resolution 	of 	the 	questions 	concerning
representation 	in 	a manner 	contrary 	to 	the 	policies of 	the Act
and 	would 	impinge 	upon 	the Board's 	exclusive 	jurisdiction 	and
authority 	to 	resolve 	such 	questions 	of 	representation." 	(Great
Lakes 	Industries 	44 	LRRM 	1387.) 	The 	same 	important 	employee
rights 	and Board 	jurisdiction 	factors 	must 	be 	considered 	in
evaluating 	CSEA's 	request 	in 	this 	case.

May 	23, 	1984
Page 5
None 	of 	the 	cases 	cited 	in 	the 	submissions 	of 	the 	parties 	are
PERB 	cases, 	nor 	do 	any cf 	them address 	directly 	the 	issue of
whether 	the Board may, 	in 	its discretion, 	delay processing 	a
decertification 	(or 	severance) 	petition 	pending 	the 	outcome 	of
an Article XX proceeding. 	In Local 	1547, 	IBEW v. 	Local 959,
Teamsters 	(9th Circuit, 	1974) 	507 	F.2d 	872, 	87 LRRM 3060, 3063
the 	court 	deferred 	to 	the NLRB's 	determination 	to proceed 	on
the 	petition of 	a 	raiding AFL-CIO affiliate 	but 	expressly 	left
open 	the 	question 	of whether 	it would 	have 	been proper 	for 	the
Board 	to 	have 	deferred 	to 	the Article 	XX proceeding.
However, 	it 	is 	unnecessary 	to determine 	the 	exact limits of
PERB's 	statutory 	authority 	in 	this 	regard 	to 	respond 	to CSEA*s
request. 	Had 	the Board 	wished 	to grant 	such 	a request 	over 	the
opposition of 	a 	petitioner, 	presumably, 	the Board would have
promulgated 	rules 	similar 	to 	those 	of 	the NLRB,
In 	the 	absence of 	a PERB 	case 	decision or 	rules 	stating 	that
the 	employee's 	statutory 	right 	to 	select 	an 	exclusive
representative 	and 	the Board's 	jurisdiction 	over 	representation
matters 	should 	be 	side 	tracked 	even 	temporarily 	to 	await 	the
outcome 	of 	an Article 	XX proceeding, 	processing 	of 	the petition
must 	not 	be 	delayed 	for 	that purpose. 	Accordingly, 	CSEA's
request 	to 	place 	Case No. 	S-D-70-S 	is 	denied 	and 	processing 	of
the 	petition 	will 	proceed.
Pursuant 	to Cal. 	Admin. 	Code, 	title 8, sec. 	32360, 	this
decision 	may 	be 	appealed 	to 	the Board 	itself 	by 	filing 	an
original 	and 	five 	copies 	in 	the 	headquarters 	office, 	Public
Employment Relations Board, 	1031 18th Street, 	#200, 	Sacramento,
CA 	95814, 	within 	10 	days 	following 	the 	date of service 	of this
decision.
The 	appeal must 	state 	in 	writing 	the 	specific 	issues 	of
procedure, 	fact, 	law or 	rationale 	that 	is 	appealed 	and 	the
grounds 	for 	the 	appeal. 	Service 	and 	proof 	of 	service 	of 	the
appeal pursuant 	to Cal. Admin. Code, title 8, 	sec. 	32140 	are
required.
Very 	truly 	yours,
JANET 	CARAWAY
Chief, 	Division 	of 	Representation
Joseph C. 	Basso
Regional 	Representative
JCB:mlb