PARTIES; DEFINITIONS; WHO IS AN EMPLOYER? – Successorship Doctrine

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PERB applies a modified version of the successorship doctrine developed by federal courts and the NLRB under the NLRA. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 20.) An employer is a legal successor to a predecessor entity, and must therefore recognize and bargain with a union that exclusively represented employees of the predecessor entity, if: (1) more than half of the putative successor’s employees in a relevant bargaining unit previously worked for the predecessor; (2) there is substantial continuity of operations between the putative successor and the predecessor; and (3) the unit at issue is or can be an appropriate unit within the successor employer’s unit structure. (Id. at pp. 20-32.) While this test is akin to that which the NLRB applies, PERB does not necessarily apply each element in the same manner as the NLRB. (See, e.g., id. at pp. 27-32 [deviating from NLRB precedent as to the third successorship element where successor proved that the predecessor’s bargaining unit should properly be merged into successor’s existing, larger, exclusively represented unit, and the union representing the successor’s larger unit was willing to augment it with the newly merged employees].) (p. 48.)