Decision 2670M – County of Santa Clara

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.)

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.)

Though PERB may look to analogous federal precedent for guidance in construing California’s public sector labor relations statutes, it is not controlling authority. Thus, when federal law and the PERB-administered statutes serve dissimilar purposes, we are not constrained to follow federal precedent. (p. 28.)

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.)

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.)

Though PERB may look to analogous federal precedent for guidance in construing California’s public sector labor relations statutes, it is not controlling authority. Thus, when federal law and the PERB-administered statutes serve dissimilar purposes, we are not constrained to follow federal precedent. (p. 28.)

Under the successorship doctrine, a successor determination creates a presumption that the union which represented its predecessor’s employees continues to enjoy majority status with the successor’s employees, thus requiring the successor employer to recognize and bargain with that union. (p. 14-15.)

Under the successorship doctrine, an employer generally succeeds to the collective-bargaining obligation of a predecessor if a majority of its employees, consisting of a “substantial and representative complement,” in an appropriate bargaining unit are former employees of the predecessor and if the similarities between the two operations manifest a “‘substantial continuity’ between the enterprises. (p. 15.)

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.)

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.)

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.)

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.)

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.)

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.)

Under the successorship doctrine, a successor determination creates a presumption that the union which represented its predecessor’s employees continues to enjoy majority status with the successor’s employees, thus requiring the successor employer to recognize and bargain with that union. (p. 14-15.)

Under the successorship doctrine, an employer generally succeeds to the collective-bargaining obligation of a predecessor if a majority of its employees, consisting of a “substantial and representative complement,” in an appropriate bargaining unit are former employees of the predecessor and if the similarities between the two operations manifest a “‘substantial continuity’ between the enterprises. (p. 15.)

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.)

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.)

Under PERB Regulation 32147, the Board itself may expedite the processing of a case presenting an important question of law, the early resolution of which is likely to improve labor relations, at all levels before PERB. (pp. 11-12.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.)

In a case submitted under PERB Regulation 32215 to the Board itself for a decision on the merits of the case, the administrative law judge correctly declined to rule on a motion at the hearing to dismiss the underlying complaint. (p. 13, fn. 14.)

In a case submitted under PERB Regulation 32215 to the Board itself for a decision on the merits of the case, the administrative law judge correctly declined to rule on a motion at the hearing to dismiss the underlying complaint. (p. 13, fn. 14.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.)

Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.)

Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.)

Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.)

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.)

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.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.)

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.)

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.)

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.)

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.)

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.)

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.)

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.)

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.)

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.)

Though PERB may look to analogous federal precedent for guidance in construing California’s public sector labor relations statutes, it is not controlling authority. Thus, when federal law and the PERB-administered statutes serve dissimilar purposes, we are not constrained to follow federal precedent. (p. 28.)

Under PERB Regulation 32147, the Board itself may expedite the processing of a case presenting an important question of law, the early resolution of which is likely to improve labor relations, at all levels before PERB. (pp. 11-12.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.)

Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.)

Under PERB Regulation 32147, the Board itself may expedite the processing of a case presenting an important question of law, the early resolution of which is likely to improve labor relations, at all levels before PERB. (pp. 11-12.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.)

Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.)