All notes for Subtopic 1310.07000 – Accretion, Adding classification(s) to existing unit (PERB jurisdictions)
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2884H | Regents of the University of California 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Accretions are more common in the public sector given that PERB’s accretion precedent deviates significantly from federal law. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 28; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 5-9, affd. Regents of the University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159.) (p. 11.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| 2884H | Regents of the University of California 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) After a mid-contract accretion, the parties have a right to bargain over terms and conditions of employment for newly added employees. Depending on the length of such bargaining, one or more of the employer’s wage adjustment cycles may occur before post-accretion negotiations are complete. To maintain the status quo during a cycle that occurs during post-accretion negotiations, the employer must normally afford newly added employees all contractually mandated wage adjustments. However, if it is unclear how one or more of the contract’s wage adjustments apply to the newly added employees, then the status quo for that cycle is the adjustments the employees would have received had they remained unrepresented. Here, it was sufficiently clear how to apply the contract, and the University correctly implemented both the across-the-board increase and the contract’s incentive award program (IAP) provision. (pp. 2-3 & 10-14.) more or view all topics or full text. | 48 | 91 | 12/06/23 |
| A427E | Poway Unified School District 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) PERB rejects a formalistic approach to unit determination. The mere fact that an employee does not work a particular number of days or percentage of time does not, in and of itself, indicate that the employee does not share a community of interest with other unit members. Employees belong in bargaining unit if they have a reasonable expectation of continuing employment. There is a clear distinction between voter eligibility and unit membership eligibility. PERB generally includes employees in a bargaining unit regardless of how few hours they may work in a year but limits who decides whether to ben exclusively represented and if so by whom. PERB therefore does not use the "established interest formula” in assessing eligibility for unit membership. Substitute employees should be included in the bargaining unit, but the "established interest formula'' is the threshold for eligibility to participate in an election. more or view all topics or full text. | 40 | 35 | 06/29/15 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Where a union petitioning for unit modification establishes a community of interest between unrepresented employees and the existing unit, the classification’s history of unrepresented status bears little weight. (See San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 12, fn. 11; Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 18-23; Hemet Unified School District (1990) PERB Decision No. 820.) Employee relations history is more important when employees have historically been in an established unit—such as when PERB considers a severance petition—because under those circumstances, maintaining continuity weighs against severance absent proof that collective negotiations are incapable of addressing the needs of a discrete minority within an existing unit. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 10; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The record did not show that collective negotiations were incapable of addressing the potential divergence of interests between per diem and regular registered nurses (RN) and nurse practitioners (NP) over issues such as scheduling, compensation, and job protections. (City of Pasadena (2021) PERB Decision No. 2788-M, pp. 10-12; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) (pp. 15-16.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) There is always variation between any two classifications in a bargaining unit, and such variation does not defeat community of interest if there are sufficient countervailing commonalities. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 30; San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, pp. 17-18.) Commonalities among critical employment characteristics between per diem and regular employee registered nurses and nurse practitioners outweighed differences by a wide margin. The sole characteristics distinguishing per diem and regular registered nurses (RN) and nurse practitioners (NP) related to scheduling, compensation, and job protections. Such typically bargainable distinctions do not overcome commonalities in characteristics that are less likely to be subject to bargaining, particularly where the per diem and regular classifications have the same education, skill, and licensure requirements, as well as the same duties. (pp. 12-15.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) County’s local rules specified which employment characteristics are most important in assessing community of interest: “duties, qualifications, skills, and working conditions of employees.” In this respect, the County’s local rules track precedent by eschewing reliance on wages, benefits, just cause protection, and other employment terms typically established through bargaining and instead focusing on less changeable characteristics. (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 17, citing Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12 [community of interest determination should not turn on differences in wages, benefits, and other terms and conditions of employment that are primarily controlled by the employer and may be changed through collective bargaining].) (p. 12.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The preference for broader units in the public sector does not warrant accreting a group of employees into a unit if the exclusive representative objects. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 30, fn. 29 & p. 31, fn. 31; County of Santa Clara (2019) PERB Decision No. 2670-M, p. 31; Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 17.) (p. 12, fn. 9.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) County local rules tracked settled precedent by repeatedly referencing the need to determine the broadest feasible group based on community of interest, and to avoid fragmentation of units. (See, e.g., County of Santa Clara (2019) PERB Decision No. 2670-M, p. 19 [“[P]ublic sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) Because “[t]he foundation of public sector labor relations is to protect employees’ right to representation and to balance those rights with public employers’ interest in maintaining operational efficiency . . . [PERB] generally seek[s] to avoid the fragmentation of employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) (p. 11.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The Legislature’s failure to address successorship in the MMBA does not mean it intended to prohibit application of the successorship doctrine to local public agencies. Legislative silence is not the equivalent of positive legislation. (p. 18.) Because the NLRA and MMBA similarly protect employees’ rights to bargain collectively through an employee representative of their own choosing and bar employers from refusing to negotiate with their employees’ chosen representative, there is no statutory reason to preclude application of the successorship doctrine in California’s public sector. (pp. 18-19.) However, differences between private and public sector employment require a more flexible accretion policy in the public sector to ensure that bargaining units are appropriately and rationally structured. (p. 19.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) PERB applies the three-part federal test when determining successorship but follows PERB precedent to determine whether employees hired from a private sector predecessor employer are appropriately accreted to existing public sector bargaining units after a transfer of ownership. (p. 20.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) PERB’s three-part test to determine successorship examines: (1) whether the alleged successor employer hired a “substantial and representative complement” of the predecessor’s employees, (2) whether a substantial continuity of operations exists between the predecessor and successor employers, and (3) whether accretion of the predecessor’s employees into the successor employer’s existing units is appropriate. (pp. 20, 22, 25-28.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Whether a successor employer has hired a substantial and representative complement of the predecessor’s employees turns on whether the majority of employees in the successor bargaining unit worked for the predecessor employer. (p. 20.) Majority status is determined by comparing the number of predecessor employees the successor hired with the total number of employees in the bargaining unit the union claims to still represent. (p. 21.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) To determine whether a substantial continuity of operations exists, the Board examines whether the business of both employers is essentially the same; whether the successor’s employees are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and maintains the same body of customers. (p. 23.) These factors are based upon the totality of the circumstances and assessed primarily from the perspective of the retained employees. (Ibid.) An employer cannot rely on prospective operational changes that may or may not be implemented in the future to create doubt as to the substantial continuity of operations. (p. 25.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The federal presumption in favor of single facility bargaining units in the healthcare industry is incompatible with PERB’s preference for broad bargaining units in the public sector. (p. 27, fn. 24.) PERB seeks to avoid both unit fragmentation and proliferation to protect employee representation rights and to balance those rights with public employers’ interest in maintaining operational efficiency. (p. 27.) The final question in successorship analysis is therefore whether accreting the new employees to the successor’s existing units is appropriate. (Ibid.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) In accretion cases, the inquiry is whether the classifications to be added to the existing unit share a “community of interest” with employees in the existing unit. In its analysis, PERB examines: job function and duties; wages; method of compensation; hours; employment benefits; supervision; qualifications, training, and skills; contact and interchange with other employees; integration of work functions; and common goals. (p. 28.) This determination is based on the totality of the circumstances. (p. 29.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2670M | County of Santa Clara 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Under the MMBA, local public agencies may adopt reasonable rules and regulations governing unit determinations and representation elections. (p. 32.) Where a successor employer hires its predecessor’s employees to existing classifications and appropriately accretes them to an existing bargaining unit, it has not modified the unit or otherwise run afoul of its unit modification rules. (pp. 32-33.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2650P | San Joaquin Regional Transit District * * * PUC TRANSIT CASE. PERB CASE NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) In cases not arising under the transit acts, PERB’s unit modification procedure is a proper mechanism by which to resolve disputes over unit placement at any time, even if there is a long history of the classification being excluded from the unit and even if the petitioning union previously agreed to such exclusion. (Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 18-23 (Regents I); Hemet Unified School District (1990) PERB Decision No. 820.) Under these cases and their progeny, (1) a union may seek to add unrepresented employees to a unit even if the employees were excluded at the time the unit was first determined, and/or the union clearly bargained for some benefit in exchange for their exclusion at some point, or otherwise waived their inclusion; and (2) a petitioning union must only establish a community of interest between the unrepresented employees to be added and the existing unit, plus proof of support from a majority of the employees to be added, if and only if the union proposes to increase the size of the unit by more than ten percent. (PERB Reg. 32781, subd. (e)(1).) PERB has declined to incorporate the “historical exclusion” rule from Union Electric Co. (1975) 217 NLRB 666 and Laconia Shoe Co. (1974) 215 NLRB 573, 576. (Regents I, supra, PERB Decision No. 2107-H, p. 22.) more or view all topics or full text. | 44 | 11 | 06/21/19 |
| 2650P | San Joaquin Regional Transit District * * * PUC TRANSIT CASE. PERB CASE NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) PERB’s approach in non-transit cases involving accretion of unrepresented employees focuses on preventing the proliferation of bargaining units and fragmentation of employee groups, as well as finding an appropriate unit in which employees can realistically be represented. (Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 10-11, 23-24 [from its earliest days, PERB has sought to avoid fragmentation of employee groups and unnecessary proliferation of units]; (Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 18-23; El Monte Union High School District (1982) PERB Decision No. 220, p. 10 [interest in preventing fragmentation or proliferation of units].) more or view all topics or full text. | 44 | 11 | 06/21/19 |
| 2650P | San Joaquin Regional Transit District * * * PUC TRANSIT CASE. PERB CASE NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) PERB has explicitly rejected applying the “overwhelming community of interest” standard to petitions to accrete unrepresented employees. (Regents of the University of California (2017) PERB Order No. Ad-453-H, p. 5; cf. Frontier Telephone of Rochester, Inc. (2005) 344 NLRB 1270, 1271.) Community of interest is determined by the totality of circumstances. (Monterey Peninsula Community College District (1978) PERB Decision No. 76, p. 13.) In determining whether a community of interest exists, we do not “go[] down a check list” of these factors but rather ascertain whether employees share a substantial mutual interest in matters subject to meeting and negotiating. (Ibid.) PERB has consistently declined to give significance in the community of interest analysis to differences in wages, benefits, and other terms and conditions of employment that are primarily controlled by the employer and may be changed through collective bargaining. (Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12.) more or view all topics or full text. | 44 | 11 | 06/21/19 |