REPRESENTATION ISSUES; UNIT MODIFICATION – Accretion, Adding classification(s) to existing unit (PERB jurisdictions)

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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.)