Sunday, March 6, 2011

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.

  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.