Decision 2650P – San Joaquin Regional Transit District * * * PUC TRANSIT CASE. PERB CASE NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * *

In enacting the various Public Utilities Code transit district acts, the Legislature took three different approaches to how federal law would guide determinations of appropriate bargaining units and other representation matters. Some of these acts provide that SMCS “shall apply” relevant federal law, while others say SMCS “shall be guided by” relevant federal law. The third approach, covering four transit districts, omits any reference to federal law, and instead directs SMCS to establish appropriate bargaining unit “boundaries.”

PERB Regulation 93090 provides that in resolving questions of representation with regard to Public Utilities Code-established transit districts, “the Board shall apply the relevant federal law and administrative practice developed under the Labor Management Relations Act [LMRA], 1947, as amended.” In deciding whether federal law is “relevant” to the question presented in a particular case, PERB Regulation 93080 “does not demand slavish adherence to the LMRA.” (See Santa Clara Valley Transp. Auth. v. Rea (2006) 140 Cal.App.4th 1303, 1319 [interpreting language in PUC section 100301 identical to that in PERB Reg. 93080].) Under PERB Regulation 93080, federal law is relevant, and therefore must be applied, unless (1) the question presented is governed by an explicit provision of the applicable transit district statute or (2) considerations unique to public sector labor relations require a deviation from federal law.

Prior to the transfer of SMCS to PERB in 2012, SMCS transit district unit determinations could be appealed to the Director of DIR. When the Legislature transferred SMCS from DIR to PERB in July 2012, the Board itself assumed jurisdiction over appeals from SMCS determinations in representation matters. After this transfer was complete, PERB adopted pre-existing transit act regulations that DIR had promulgated, without making any material changes. (PERB Regs. 93000-93080.)

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.)

The transit district enabling acts generally grant employees the right to form bargaining units appropriate for collective bargaining and authorize SMCS to resolve disputes over questions concerning representation (QCR) or whether a particular unit is appropriate. (PERB Reg. 3005 [distinguishing petitions for certification or decertification, which involve a QCR, from those for clarification, in which there is no QCR].) A QCR arises when there is a legitimate doubt whether the union has majority support in the bargaining unit. (NLRB v. Financial Inst. Employees of Am., Local 1182 (1986) 475 U.S. 192, 198.) If a QCR exists, a union must demonstrate majority support among employees to be added to an existing unit. (Teamsters Nat. United Parcel Service Neg. Cmte. v. NLRB (D.C. Cir. 1994) 17 F.3d 1518, 1524.) In contrast, accretion allows employees to be added to an existing unit without an election or other demonstration of majority support. (IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861, 872.)

As in any case involving a unit determination, the Board examines the traditional community of interest factors to determine whether the proposed transit unit is appropriate. These include: bargaining history; desires of the affected employees; nature of the employer’s business; similarity in scale and manner of determining earnings; similarity in employment benefits, hours of work, and other terms and conditions of employment; similarity in the kind of work performed; similarity in the qualifications, skills, and training of the affected employees; frequency of contact or interchange among the employees; geographical proximity; continuity or integration of production processes; common supervision and determination of labor-relations policy; and relationship to the employer’s administrative organization, as well as the employer’s authority to bargain effectively at the level of the unit and the effect of a unit on the efficient operation of the public service.

System-wide bargaining units “are favored” in California’s public sector in California’s public sector transit districts. (IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861, 871.) Adopting a contrary rule might result in unit proliferation and employee fragmentation that would impede the efficient service required of our public transportation systems.

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.) County bus system is an integrated system. Community of interest determination flows from multiple general and specific facts, including geographic location, contact, interchange, work proximity, and overlapping skills and duties between classification union sought to accrete into existing unit and historically included classification. Moreover, classification sought to be accreted and historically included classification report to the same immediate supervisor and supervision chain, receive at least some of the same training, perform the same primary function of assisting passengers in navigating the transit system, work in outdoor weather conditions, wear uniforms and must be familiar with the bus routes.

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.)

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].)

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.)

Under California public transit district law, accretions are restricted to a lesser degree than the National Labor Relations Act, but more so than under California’s non-transit public sector relations acts. The following factors must be considered when determining whether to accrete employees to an existing Public Utilities Code transit district bargaining unit: whether the new group of employees itself constitutes an appropriate unit; the size of the group to be accreted relative to the size of the existing unit; whether the group to be accreted was already in existence at the time the existing bargaining unit was recognized; the extent to which the existing unit is itself the result of prior accretions; and the views of the employees. Additionally, as in any case involving a unit determination, the Board examines the traditional community of interest factors to determine whether the proposed transit unit is appropriate. These include: bargaining history; desires of the affected employees; nature of the employer’s business; similarity in scale and manner of determining earnings; similarity in employment benefits, hours of work, and other terms and conditions of employment; similarity in the kind of work performed; similarity in the qualifications, skills, and training of the affected employees; frequency of contact or interchange among the employees; geographical proximity; continuity or integration of production processes; common supervision and determination of labor-relations policy; and relationship to the employer’s administrative organization, as well as “the employer’s authority to bargain effectively at the level of the unit and the effect of a unit on the efficient operation of the public service. While most of these factors are also relevant to one degree or another under federal law, California public transit district law does not restrict accretions to the same extent as does the National Labor Relations Board (NLRB) in applying federal law.

The transit district enabling acts generally grant employees the right to form bargaining units appropriate for collective bargaining and authorize SMCS to resolve disputes over questions concerning representation (QCR) or whether a particular unit is appropriate. (PERB Reg. 3005 [distinguishing petitions for certification or decertification, which involve a QCR, from those for clarification, in which there is no QCR].) A QCR arises when there is a legitimate doubt whether the union has majority support in the bargaining unit. (NLRB v. Financial Inst. Employees of Am., Local 1182 (1986) 475 U.S. 192, 198.) If a QCR exists, a union must demonstrate majority support among employees to be added to an existing unit. (Teamsters Nat. United Parcel Service Neg. Cmte. v. NLRB (D.C. Cir. 1994) 17 F.3d 1518, 1524.) In contrast, accretion allows employees to be added to an existing unit without an election or other demonstration of majority support. (IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861, 872.)

System-wide bargaining units “are favored” in California’s public sector in California’s public sector transit districts. ((IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861, 871.) Adopting a contrary rule might result in unit proliferation and employee fragmentation that would impede the efficient service required of our public transportation systems.

Under California public transit district law standard, the hearing officer erred in finding that the transit ambassador (TA) classification had been historically excluded from the unit. The TA classification did not exist at the time the unit was certified. The evidentiary record was insufficient for the Board to determine exactly when the TA classification came into existence relative to the effective date of the then-current agreement. There was no evidence that the union clearly and unmistakably waived its right to file a unit clarification petition with SMCS when TA unit placement was not resolved during bargaining. The evidence thus did not establish that the TA classification had been historically excluded from the unit under California transit law.

PERB does not apply an “overwhelming community of interest standard” to a transit union’s attempt to accrete unrepresented employees into an existing unit. (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.)

Accretion; adding classification(s) to existing unit (transit district units) Board found community of interest factors and factors unique to accretion of employees into an existing unit support adding transit ambassador (TA) classification to the existing bargaining unit. County bus system is an integrated system. Community of interest determination flows from multiple general and specific facts, including geographic location, contact, interchange, work proximity, and overlapping skills and duties between TA classification and historically included classification. In light of the preference for broad units in transit systems, Board concludes that TA classification shares a community of interest with employees in County transit district’s existing bargaining unit. The small size of proposed addition relative to existing unit favored accretion, as there was little concern that the accretion could create a QCR or otherwise disrupt the exclusive representative’s majority support within the unit. Further, the TAs would not constitute an appropriate unit in themselves.