All notes for Subtopic 1310.07000 – Accretion, Adding classification(s) to existing unit (PERB jurisdictions)

DecisionDescriptionPERC Vol.PERC IndexDate
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1310.7000: 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.
09/20/19
2650P * * * JUDICIAL APPEAL PENDING * * * San Joaquin Regional Transit District and Amalgamated Transit Union Local 276
1310.7000: 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.
06/21/19
2650P * * * JUDICIAL APPEAL PENDING * * * San Joaquin Regional Transit District and Amalgamated Transit Union Local 276
1310.7000: 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.
06/21/19
2650P * * * JUDICIAL APPEAL PENDING * * * San Joaquin Regional Transit District and Amalgamated Transit Union Local 276
1310.7000: 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.
06/21/19