PERB Advisory Committee Meeting on April 14th, 2011

The Public Employment Relations Board (PERB) has a set a meeting of its Advisory Committee for April 14, 2011 at 11 am.  The location will be at the PERB headquarters in Sacramento at 1031 18th Street, First Floor, Room 103, Sacramento, CA.

The purpose of the advisory committee is to help PERB "obtain feedback and ideas from PERB constituents relating to our mission in administering the seven collective bargaining statues over which we have jurisdiction with the overall intent of making PERB more efficient."  The agenda includes presentations by PERB staff on various topics followed by a roundtable discussion.

Court: City Has Inherent Authority to Furlough Employees

City of Los Angeles v. Superior Court (Engineers and Architects Association) (Court of Appeal Case No. B228732) (Issued on 3/25/11)

Facing a $500 million deficit, the City of Los Angeles (City) passed an ordinance furloughing civilian employees for up to 26 days per fiscal year. Many of the furloughed employees filed grievances under their union contracts arguing that the furloughs were impermissible. After the grievances were denied, the Engineers and Architects union requested arbitration. When the City refused to arbitrate, the union filed a petition to compel arbitration of over 400 such grievances.

The trial court granted the petition to compel arbitration finding that the grievances were arbitrable. The City appealed. The Court of Appeal found there to be legitimate questions as to whether the furloughs are arbitrable under the parties’ Memorandum of Understanding (MOU). However, the court nevertheless ruled in the City’s favor by finding that any agreement to arbitrate the furloughs constituted an improper delegation of discretionary policymaking power vested in the City Council.

With respect to the holding that arbitration would constitute an improper delegation of authority, the court began its analysis by discussing three different types of improper delegation.  First, there can be an improper delegation to a private individual under California Constitution, article XI, section 11.  However, this provision only applies to State delegations of municipal power to private individuals, and does not apply to a City’s delegation of its own power. Second, there can be an improper delegation by a legislative body to another actor, such as an arbitrator.  Here, however, the City passed an ordinance authorizing furloughs and did not delegate the authority to another individual. Third, there can be an improper delegation of a public agency’s discretionary power.  The court cited to prior cases holding that: “As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144; San Francisco Fire Fighters v. City and County of San Francisco (1977) 68 Cal.App.3d 896, 901.)

In examining whether this case involves an improper delegation of discretionary authority, the court noted that the City’s Charter vests budgeting discretion in the City Council and the Mayor. The City Charter also provides that the City Council “shall set salaries for all officers and employees of the City.”  The court held that, “Clearly, a mandatory furlough is encompassed within salary setting [citation omitted] and a furlough imposed in a fiscal emergency is encompassed within budget making. Moreover, it cannot legitimately be disputed that setting salaries is a discretionary function.”

Applying these findings to the case at hand, the court held that by seeking to arbitrate the grievances, the union was attempting to “have an arbitrator determine issues of discretionary policymaking which have been assigned to the City Council."  The court further held that, "The Union wants a determination made that the City violated the salary and workweek provisions of the MOU by instituting furloughs, and that the furloughs were therefore improper. Grievance after grievance argued that the furloughs were improper and that the employees should be returned to full-time work and repaid for the days on which they were furloughed.” In such a situation, the court held that the union’s petition to compel arbitration was a clear, “… challenge to a City Council’s decision to impose furloughs as a response to the City’s dire financial condition. If the City Council had agreed to arbitral review of such a decision, it would have been an improper delegation of its salary setting and budget making powers.”

Comments:

1. According to the court, the issue that the union wanted to arbitrate was whether the City had the authority to furlough employees. The court held that this issue could not be deleted to an arbitrator as it was an inherent power of the City. The court, however, did not address whether the City had to bargain with the union before exercising its power to furlough employees. In a footnote, the court noted that the City offered to bargain over the effects of the furloughs but not the decision to furlough employees.  The court acknowledged that, “… the issue of whether furloughs could be imposed without prior consultation with the Union is different from the issue of whether furloughs could be imposed at all.” As for whether the City had to bargain, that issue is pending before the City’s Employee Relations Board on an unfair practice charge filed by the union. Thus, this decision does not directly address whether furloughs have to be bargained.
2. On the issue of whether furloughs have to be bargained, there was another interesting comment in a footnote: “… While the City argues that section 1.9 of the MOU permits it to unilaterally furlough employees, the City also argues that, even if the MOU does not permit the imposition of furloughs, the City nonetheless may implicitly suspend operation of the MOU by emergency ordinance properly enacted.” The court did not address this issue.  However, whether a public entity can suspend operation of a MOU during a fiscal emergency is an issue that has to be addressed sooner or later in this economic climate.  Answering that question in the negative might push more public agencies to consider Chapter 9 bankruptcy ... something that most public agencies are loath to even mention ... 

A Little History on the Labor Movement

Today is the 100 year anniversary of the Triangle Shirtwaist Factory fire that killed 146 young women and girls in New York City on March 25, 1911. It was one of the worst workplace disasters in our nation’s history. The sight of immigrant girls and women leaping to their deaths—some with their clothes on fire, some holding hands—horrified the entire nation. The tragedy not only helped spark the growth of the International Ladies Garment Workers Union but the entire labor movement in the United States.

Fast forward to 2011 … I’ve received a couple of comments from readers on how Governor Jerry Brown has been wrongly “blamed” for giving California public sector workers the right to unionize. For example, the Wall Street Journal ran an opinion article stating:

The sharp rise in public union membership in the 1960s and 1970s coincides with the movement to give public unions collective bargaining rights. Wisconsin was the first state to provide those rights in 1959, other states followed, and California became the biggest convert in 1978 under Jerry Brown in his first stint as Governor. (A Union Education, Wall Street Journal On-line.)

It’s true that during his first two terms as Governor (1975-1983), Jerry Brown signed the Educational Employment Relations Act of 1976 giving collective bargaining rights to schools and community college employees, the State Employer-Employee Relations Act of 1978 (now called the Dills Act) giving collective bargaining rights to state employees, and the Higher Education Employer-Employee Relations Act of 1979, giving collective bargaining rights to higher education employees.

However, those laws were not truly ground-breaking because they were not the first laws in California giving public sector employees the right to collective bargaining. The first law that gave public sector employees the right to collective bargaining is the Meyers-Milias-Brown Act (MMBA). The MMBA was signed in 1968 and gave city and county employees the right to collective bargaining. The MMBA was signed by a former union president. No, it wasn’t Jerry Brown. It was Ronald Reagan.  By signing the MMBA, Governor Reagan made California the second state in the nation to allow public sector collective bargaining. The first was Wisconsin in 1959.

Court Affirms Duty of Fair Representation under MMBA

Paulsen v. Local No. 856 (Court of Appeal Case No. A126633) (Issued on 3/18/11)

Plaintiffs are Deputy Probation Officers employed by the County of Marin (County) who brought a wage and hour lawsuit against both the County and their union, Local 856. The lawsuit alleged that the County and the union entered into a “secret” deal to falsely designate plaintiffs as exempt employees under the Fair Labor Standards Act. The plaintiffs brought three (3) causes of action alleged against the union: 1) breach of the duty of fair representation, 2) common law breach of fiduciary duty, and 3) fraudulent concealment.

The trial court sustained the union’s demurrer to the first cause of action on the ground that PERB has exclusive jurisdiction over an alleged breach of the duty of fair representation. The trial court also sustained the union’s demurrer to the 2nd and 3rd causes of action on the ground that the “essence” of those claims also was for breach of the duty of fair representation.

On appeal, the plaintiffs made the novel argument that under the MMBA there is no duty of fair representation. Because there is no duty of fair representation, plaintiff s argued that there could be no unfair practice. The court acknowledged that in Andrews v. Board of Supervisors (1982) 134 Cal.App.3d 274, 283 (“Andrews”), another appellate court concluded that the MMBA does not contain an implied duty of fair representation. However, based on subsequent case-law, the court questioned the validity of the Andrews decision and noted that PERB has consistently held that a duty of fair representation exists under the MMBA. Accordingly, the court held that a claim for breach of the duty of fair representation is clearly an unfair practice under the MMBA.

Comments:

1. In addition to the above holding, the court also affirmed that MMBA section 3511 only exempts from PERB’s jurisdiction peace officers designated under Penal Code 830.1. Deputy Probation Officers are designated peace officers under Penal Code 830.5, and therefore are subject to PERB’s jurisdiction.
2. With respect to the duty of fair representation, the court emphasized that the duty arises from the union’s role as the “exclusive” representative of employees. The decision notes that, "there is ordinarily no such duty when the union does not occupy that position, or as to particular matters for which the union does not act as the employees’ exclusive agent." Typically, the duty of fair representation attaches to negotiations and contractually based remedies under the union’s exclusive control. What this means is that if the union voluntarily takes on a role—for example, representing an employee in a civil service hearing where the employee is free to represent himself or herself or obtain independent counsel—the duty of fair representation may not attach.  I've always seens this as an unnecessary loophole in the law.  In my opinion, if a union voluntarily undertakes representation of an employee the duty of fair representation should attach.  Granted, I'm a management attorney so I'm biased.  But it seems to me that an employee should expect the union to treat him or her fairly and not to make arbitrarty decisions regardless of whether the union is acting in an "exclusive" capacity or not.  

SB 609: Requires Board Decision in 180 Days in Representation Cases

SB 609 was introduced by Senator Negrete McLeod on February 17, 2011. Under SB 609, PERB would have 180 days to issue a decision in an appeal of an Administrative Law Judge's decision in a representation case (ie. requests for recognition, unit modification, severance, decertification, etc.).  Currently, there are no time limits governing how long PERB has to issue a decision on any matter before the Board.

Comments:

1. This bill is obviously aimed at shortening the time its takes to get a final decision from PERB.  In years past, it could take up to two years for the Board to issue a decision on an appeal of an ALJ’s proposed decision. However, that was when the Board’s docket of cases approached 150. Currently, the Board has a docket of about 50-60 cases. So today I think the longest delays are at the initial charge processing stage rather than at the Board.
2. Although the Board can take up to two years (or more in some isolated cases) to issue a decision, it has always prioritized representation cases.  I do not know how many cases, if any, there have been where the Board took more than 180 days to issue a decision in a representation case. I suspect there must be at least one, which is what prompted this bill.
3. Although I support the goal of this bill, I'm concerned with the way it is written because it does not provide any exceptions and singles out representation cases for priority.  Under this bill, the 180 days would run from the date the appeal is filed. However, this doesn’t take into account that after an appeal is filed there is briefing that must be done. Sometimes a transcript must be prepared.  As an example of unanticipated delay, during the last budget impasse PERB was unable to pay for transcription services until the budget was passed which caused a delay in the processing of cases at the Board level.  None of these factors would be taken into account under this bill.
4. As mentioned, I am absolutely in favor of PERB having timelines for the issuance of decisions.  My preference would be for PERB to issue its own regulations setting forth timelines rather than having those timelines set in statute.  My recommendation to PERB would be to have a timeline of 90 days to issue a decision in an appeal of a dismissal and 180 days to issue a decision in an appeal of an ALJ decision. I would apply these timelines to all cases, not just representation ones. Contrary to SB 609, I would run the timelines from when a case is placed on the Board’s docket (ie. after briefing is complete) instead of when an appeal is filed.

AB 501 Would Bring JPA’s Under EERA; But Is It Necessary?

AB 501 was introduced by Assemblymember Nora Campos (D-San Jose) on February 15, 2011.  AB 501 would expand the definition of “public school employer” under EERA to include a joint powers agency (JPA) if: 1) the JPA is separate from the contracting parties to the joint powers agreement; 2) the JPA has its own employees; and, 3) the JPA is designated under statute or provides services primarily performed by either a “school district, county board of education, or county superintendent of schools” or is comprised solely of school agencies.

This bill was just introduced so there is no legislative analysis available.  However, the impetus for this bill appears to be PERB’s decision in North Orange County Regional Occupational Program (1990) PERB Decision N. 857-E (“North Orange County”) issued in 1990.  In that case, PERB overturned prior precedent by holding that a JPA created by five school districts was not a “public school employer” for purposes of EERA.  In 1999, Assemblymember Hertzberg introduced AB 91 which would have overturned the North Orange County decision and brought JPAs under EERA’s jurisdiction.  That bill was vetoed by the Governor because of the potential costs to the state and school districts.

In 2007, Assemblymember Eng introduced AB 1463 which would have accomplished the same result as AB 91.  That bill did not make it out of the Legislature.  Now, Assemblymember Campos has introduced AB 501, which is nearly identical to the prior AB 1463.

In addition to overturning North Orange County, AB 501 would also likely overturn the Board's decision in Castaic Union School District (2010) PERB Decision No. Ad-384 ("Castaic") (Note: Castaic is currently on appeal) which held that school noon-duty aides are not "employees" within the meaning of EERA.  The Board's decision in Castaic was based on EERA section 3540.1 which states that an exclusive representative under EERA must represent either classified or certificated employees.  Since the noon-duty aides at issue were neither, Board held that they were not covered by EERA.  AB 501 would change section 3540.1 to remove the requirement that an employee be either a classified or certificated employee.

Comments:

1. According to the Assembly analysis of AB 1463, the result of the North Orange County decision was that JPAs became subject to the MMBA instead of EERA. The analysis stated that, “JPAs must comply with the MMBA which calls for a "meet and confer" process but does not provide all of the procedural elements of the EERA which could result in egregious labor abuses.  For example, it is possible for a JPA to lay off workers and hire them back with reduction in salary, hours, working conditions, and classification changes without regard to negotiated criteria under MMBA.”
2. The Senate analysis stated that because of the North Orange County decision, “JPAs were not required to engage in collective bargaining. JPAs, thus, are subject only to ‘meet and confer in good faith’ provisions, which are not subject to PERB oversight.”
3. First, it's interesting that both the Assembly and Senate analyses for AB 1463 assume that collective bargaining under the MMBA is different from that under EERA.  Both analyses suggest that the term “meet and confer” is a lesser requirement than that under EERA. I don’t know what gave them that idea but it’s certainly not true today. The requirement to “meet and confer” under the MMBA is no different than the requirement to “meet and negotiate” under EERA.  Both require collective bargaining as that term is generally understood.
4. Second, the Assembly analysis suggests that under the MMBA, an employer can abrogate a collective bargaining agreement by simply laying off employees and hiring them back under different terms and conditions.  I would like to see the support for that proposition because I'm not aware of any legal authority for that.
5. Third, one of the criticisms of the North Orange County decision has been that it allows school districts to “legally join together in a way that evades EERA and results in the loss of employees' statutory rights.” (San Jose/Evergreen Community College District (2005) PERB Decision No. 1928-E, dissent of Member Shek, p. 21, fn. 5; Clovis Unified School District (2002) PERB Decision N0. 1504-E, p. 15, fn 11.)  It’s certainly true that under North Orange County, JPAs are not subject to EERA.  But that does not mean employees of JPAs have no statutory right to collective bargaining. They are still subject to the MMBA.  More important, back in 1990, the MMBA was not subject to PERB.  However, today the MMBA is subject to PERB just like EERA.
6. Because the MMBA is now subject to PERB’s jurisdiction and provides employees with substantially the same right to collective bargaining, it’s not clear to me that the reasons given during former attempts to pass this bill are still valid today.

Court: Cross-Unit Bumping Is Negotiable; No Pre-Layoff Hearing Required for Economic Layoffs

Alameda County Management Employees Ass’n. v. Superior Court (Case No. A128697) (Issued on 3/7/11)

In response to a budget deficit for the 2009-2010 fiscal year, the Superior Court of Alameda County (Court) laid off 28 members in the bargaining unit represented by the Alameda County Management Employees Association (ACMEA). Under the Court’s personnel rules, an employee who is laid off has the right to “bump” into a position he or she previously held.  However, the Court negotiated a MOU with SEIU providing that an employee loses any “seniority” for calculating bumping rights if the employee leaves his or her position for more than six months. The SEIU MOU had the effect of preventing management employees from “bumping” into the SEIU unit because the management employees lost seniority per the SEIU MOU provision.

ACMEA argued that the Court could not apply the SEIU MOU to its members. ACMEA also argued that the laid off employees were entitled to pre-layoff hearings. The trial court rejected both arguments. The court of appeal reversed the trial court on the issue of whether the Court violated the Trial Court Employment Protection and Governance Act (TCEPGA) by applying the SEIU MOU to ACMEA unit members, but affirmed the trial court holding that no pre-layoff hearings were required.

With respect to the SEIU MOU, the court held that under the TCEPGA the Court had the duty to meet and confer with ACMEA over terms and conditions of employment, which include seniority rights.  The “status quo” with respect to seniority rights was contained in the Court’s personnel rules.  The appellate court held that if the Court wanted to apply the SEIU provision to ACMEA, it should have provided ACMEA notice and an opportunity to bargain over the seniority language. Because it didn’t, the court violated the TCEPGA.

As for the right to pre-layoff hearings, the court cited to Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166 ("Duncan") for the holding that pre-layoff hearings are not required when the layoff is due to budgetary constraints. Here, the court held that there is no dispute that the layoffs were due to budgetary constraints. The court also noted that the layoffs involved multiple people and were done according to seniority which is an objective criteria. These factors greatly lessened any chance that the layoffs were “targeted” at particular individuals. Under these facts, the court held that pre-layoff due process hearings are not necessary.

Comments:

1. Cross-unit bumping is becoming more of an issue now that layoffs are a reality in the public sector.  Many unions take the position that members of other unions should not be able to "bump" into their bargaining unit.  However, it's fairly rare to find actual contract language prohibiting employees from "bumping" into a unit.  Most public entities allow cross-unit bumping if the employee previously held the position he or she is bumping into.  In this case, the SEIU language had the practical effect of protecting existing SEIU unit members from being bumped by employees coming back into the unit.  Under this decision, such contract language must be negotiated with not only the union demanding it, but every other union which might be affected.  I think trying to implement this decision and actually negotiate such language with multiple unions would be a nightmare.  The practical result of this decision is that employers are going to refuse to agree to the SEIU language found in this case.
2. The more interesting aspect of this case is the issue of pre-layoff due process hearings.  This is the first published decision discussing pre-layoff due process hearings since the Levine v. City of Alameda (9th Cir. 2008) 525 F. 3d 903, decision in 2008.  That decision created a stir because it suggested that pre-layoff due process hearings are required.  However, this decision makes clear that if there is no evidence that employees are being specifically "targeted" for layoff in lieu of discipline or as a form of reprisal, then no pre-layoff due process hearing is required.  What's interesting is that the court does not directly discuss Levine in reaching this holding.  However, the court cites to Levine in other portions of the case and also cites to other federal cases on the issue of due process rights.  So although I would have liked a more robust discussion of Levine versus Duncan, I think this decision gives public entities some much needed guidance as to when pre-layoff hearings are required. 

Isolated Reference to Union Activity During Termination Not Enough To Establish Retaliation

Fallbrook Union Elementary School District (2011) 2171-E (Issued on 3/01/11)

This case involved an allegation that the Fallbrook Union Elementary School District (District) decided not to reemploy a teacher because of her activities as a union site representative.  For a retaliation case, the facts are fairly short and simple. The teacher was employed on a series of temporary contracts in 2005-06, 2006-07, and 2007-08. She received satisfactory evaluations the first two years. However, in 2007-08 she was not recommended for re-hire purportedly because of her classroom management skills. The teacher alleged that immediately after she was informed by the Principal that she would not be re-hired the next year, he stated, “On a side bar, off the record, I believe that your Union activities have gotten in the way of your teaching objectives this year. . ."  Based on this statement, the union alleged that the teacher was retaliated against for her union activities as a site representative.

The Administrative Law Judge (ALJ) found in favor of the teacher. However, on exceptions by the District the Board rejected the ALJ’s proposed decision and dismissed the charge. The Board’s decision focused on whether the union had established the required “nexus” between the adverse action and the protected activity.  According to the Board, there were two factors proffered to establish nexus.  First, the union argued that the Principal failed to follow the contract by having a conference with the teacher within a certain time period after the classroom observation.  Second, the union argued that the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” evidenced discriminatory intent.

The Board rejected both of these factors as supporting the required nexus. As for the failure to follow the contract, the Board found that the Principal had failed to follow the contract in prior years when he gave the teacher a favorable rating. Based on this fact, the Board set forth a rule that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” As for the alleged statement by the Principal, the Board held that, by itself, it was a “relatively benign statement that does not convey union animosity.”  The Board acknowledged that it could indicate anti-union animus if coupled with other facts. But here, the Board found no other facts supporting anti-union animus.  Accordingly, the Board rejected the ALJ’s proposed decision and dismissed the complaint.

Member Wesley dissented. Member Wesley stated that the District’s failure to adhere to the contract meant that the teacher was not apprised of her performance prior to the decision not to re-hire.  According to Member Wesley, the teacher “had no way of knowing she was at risk of not being reemployed and she was not given the opportunity to improve as required in the evaluation procedure.” As for the statement by the Principal, Member Wesley agreed that it was not “blatant anti-union animosity ...” However, she would have found that the statement, “does imply that union activity is inconsistent with professional achievement and further supports the inference that the District’s actions were unlawfully motivated.” Accordingly, Member Wesley would have found that the District unlawfully retaliated against the teacher for her protected activity.

Comments:

1. Historically, it’s rare for the Board to overturn an ALJ’s proposed decision in a retaliation case because such cases are very fact-intensive and often rely on credibility determinations that the Board is loath to reject.  It’s also fairly rare for a decision to draw a dissent, so this case is doubly interesting.
2. It terms of new law, the Board held that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” I think this makes sense. A classic example is the annual performance evaluation. Many public entities have an express requirement that an employee is supposed to get an annual performance evaluation. But it’s very common for supervisors to fail to comply with this requirement.  In a situation where a supervisor fails to comply with this requirement for all employees, can it really be said that the failure is evidence of any discriminatory intent?  Clearly, it’s not a good personnel practice and if the issue was “just cause” it would absolutely make a difference. But in a retaliation case under PERB, the issue is not “just cause” but whether the action was taken for discriminatory intent. The key to proving discrimination is showing that the employee was treated differently. If the employer’s non-compliance with the contract applies to everyone, then it cannot be said that any particular employee was treated differently. So I think the Board’s rule makes sense. However, I will add that failure to comply with rules and procedures can absolutely be evidence of discriminatory intent in other circumstances. So I think the application of this rule will be very fact specific.
3. The most interesting part of this decision is the Board’s treatment of the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” The Board found that by itself, this statement wasn’t enough to establish retaliation.  Presumably, this is because the Board felt that the Principal could merely have been saying that the teacher did not focus enough on her core reaching duties. Fortunately for the school district, there was no other evidence of unlawful retaliation. If there was other evidence, I believe the result would have been very different. The reality is that it’s very dangerous for a supervisor to reference an employee’s union conduct during a performance review. An employee can easily view such references as a form of retaliation. If an employee is inappropriately spending time on union duties there is a legitimate way to address that.  But it must be done carefully to avoid charges of retaliation like the one in this case.

Proof of Majority Support Not Always Required When Adding Employees to a Bargaining Unit

County of Riverside (2011) PERB Decision No. 2163M (Issued on 2/18/11)

This case began with a petition from SEIU to add unrepresented ‘per diem’ nurses to an existing bargaining unit. The County denied the petition because it was not accompanied by proof of majority support of the per diem nurses being added to the unit. SEIU filed an unfair practice charge asserting that it was unreasonable for the County to impose a majority support requirement on SEIU’s petition because the County’s local rules did not contain such a requirement. In defending against the unfair practice charge, the County acknowledged that its local rules were silent regarding proof of support but argued that a majority support requirement had to be implied in the rules in order to prevent unrepresented employees from being "involuntarily unionized against their will."  The Administrative Law Judge (ALJ) rejected the County’s defense. The ALJ held that the County’s position was contrary to PERB regulations which only require proof of majority support if the added employees would increase the existing bargaining unit by 10% or more.

On exceptions, the Board affirmed the ALJ’s proposed decision. The Board noted that the National Labor Relations Board (NLRB) only requires a showing a majority support when the employees to be added to an existing bargaining unit historically have been excluded from the unit, typically (but not necessarily) by agreement between the union and the employer. (Teamsters National United Parcel Service Negotiating Committee v. National Labor Relations Rd. (D.C. Cir. 1994) 17 F.3d 1518, 1522; Laconia Shoe Co. (1974) 215 NLRB 573, 576.) However, PERB does not follow the NLRB ’s approach to accretion.  Instead, PERB regulations require a showing of majority support when adding the requested employees "would increase the size of the established unit by ten percent or more." (PERB Regs. 32781(e)(1); 61450(e)(1); 81450(e)(1); 91450(e)( 1).)  If the addition would not increase unit size by ten percent or more, no showing of majority support is required.  (Regents of the University of California (2010) PERB Decision No. 2107-H.) Based on PERB’s regulation on accretion, the Board rejected the County’s argument that a showing of majority support must be implied whenever employees are added to an existing bargaining unit.

Comments:

1. The majority support requirement for adding employees into an existing bargaining unit is one of the areas where PERB’s rules differ from those under the NLRB. Under PERB’s regulations, proof of majority support is required only if the added employees increase the bargaining unit by 10% of more.  It’s a more objective standard than that under the NLRB. I personally like PERB’s rule because it provides much more certainty to both the employee organization attempting to organize the employees and to the employer attempting to apply its local rules.
2. However, this decision leaves unanswered a very significant question. What if a public entity has in its local rules a requirement for proof of majority support whenever employees are being added to an existing bargaining unit, even if the increase to the bargaining unit is less than 10%? Clearly, the Board is saying that PERB does not require proof of majority support if the bargaining unit does not increase by 10% of more.  But what if a public entity wants to impose such a requirement in those situations where the increase is less than 10%?  Does this decision make such a “requirement” unreasonable?  In other words, is PERB imposing a minimum standard of 10% such that a public entity may not impose any contrary requirement?  It's unclear from this decision.  I believe there are certainly public policy reasons why a public entity may want to require proof of majority support in situations even where a bargaining unit isn’t increased by 10%.  It seems to me such a requirement wouldn't be that onerous to employee organizations.  But again, whether PERB would find such a requirement an “unreasonable” local rule is not answered by this decision.

PERB Chair Alice Dowdin Calvillo to Speak at IRANC Luncheon on March 10th

If you're going to be in Sacramento on March 10, 2011, please make plans to attend a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC) featuring Alice Dowdin Calvillo, Chair of PERB.  Chair Dowin Calvillo will be speaking on, "PERB: Past – Present – Future" and will talk about her time at PERB.

Here are the details:

• Date: Thursday, March 10, 2011 Meeting
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1)  Vegetarian Sandwich; 2) Chicken Breast Forestiere, or 3) Mahi Mahi

RSVP by March 2 to Marcie Mooney at (916) 928-0399 or email her at: mmooney@local 39.org with lunch choice.