50% Participation Rule Deemed Unreasonable

County of Imperial (PERB Dec. No. 1916M) (Issued 6/28/07)

At issue in this case was a local rule requiring that in a representation election, a majority of the employees in the bargaining unit must vote in order for the vote to be valid. PERB held that the rule was “unreasonable” under the MMBA. In reaching its decision, PERB compared the language of MMBA section 3507.l (a) and 3502.5(d). The former section states that a majority of votes cast in representation elections is required, not that a majority of employees must vote. In the latter section - governing rescission elections - the language expressly requires a majority of unit employees to vote. Because the Legislature expressly required majority participation in certain elections and not others, PERB held that a local rule setting different requirements was unreasonable.

This case is one of the first PERB cases finding a local rule to be “unreasonable” under the MMBA. The holding here can be interpreted to set the statutory language of the MMBA as a baseline for evaluating reasonableness. Local rules that deviate or frustrate the MMBA’s statutory provisions will almost certainly be found unreasonable. For example, MMBA section 3507.1 now allows for the establishment of majority support through ‘card check.’ A local rule that ignores ‘card check’ or requires some other kind of election can be expected to be found unreasonable.