Decision 2788M – City of Pasadena

LA-CE-1465-M

Decision Date: September 1, 2021

Decision Type: PERB Decision

Description: Pasadena Non-Sworn Employees Association (PNSEA) alleged that the City of Pasadena unreasonably denied a representation/severance petition and thereby violated the City’s Employer-Employee Relations Resolution (EERR), the MMBA, and PERB regulations. The petitioned-for unit would include the City’s 12 unrepresented Police Supervisors, in addition to nearly 80 employees severed from two represented bargaining units. The complaint alleged the City unreasonably applied its EERR by: (1) requiring PNSEA to demonstrate that its proposed unit was more appropriate than the existing units; (2) rejecting PNSEA’s contention that its proposed unit was appropriate based on evidence of unit configurations in surrounding cities; (3) declining to find a community of interest between supervisory and non-supervisory classifications and (4) denying PNSEA’s alleged alternative request to create a new unit solely comprised of the residual, unrepresented Police Supervisor classification. After the parties filed post-hearing briefs, the Board directed that the record be submitted to the Board itself for decision pursuant to PERB Regulation 32320, subdivision (a)(1).

Disposition: PNSEA did not establish any violation. In determining that it would be inappropriate to sever classifications and parts of classifications from their existing units, the City reasonably applied the EERR’s unit determination criteria, including community of interest factors, labor relations history, efficiency of operations, and freedom to exercise protected rights. Because the City reasonably determined not to sever non-supervisory positions from their existing bargaining units, the City had a valid threshold reason not to create the petitioned-for unit, and the Board did not need to determine whether the EERR was unreasonable in purporting to require that supervisors be in a separate unit from non-supervisors. The Board also found that PNSEA had never requested to represent a unit solely comprised of the residual, unrepresented Police Supervisor classification.

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Decision Headnotes

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.01000 – In General; Conduct of Hearing

Where parties agreed that joint exhibits and stipulated facts would form the sole evidentiary record in this matter, the ALJ found the record appropriate for a decision pursuant to PERB Regulation 32207, which provides: “The parties may submit stipulated facts where appropriate to the Board agent. No hearing shall be required unless the parties dispute the facts in the case.”

1308.00000 – REPRESENTATION ISSUES; SEVERANCE
1308.01000 – In General

PERB applies its own Regulations regarding severance, decertification, or unit determination if an MMBA employer either has no applicable rule on such a topic or has adopted an unreasonable rule. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8.)

1308.00000 – REPRESENTATION ISSUES; SEVERANCE
1308.01000 – In General

While a severance petitioner has the burden of proving its proposed unit is an appropriate unit, it need not demonstrate that its proposed unit is “the ultimate unit or the most appropriate unit.” (City of Glendale (2021) PERB Decision No. 2773-M, p. 26, citing City of Lodi (2010) PERB Decision No. 2142-M, adopting proposed decision at p. 10; Alameda County Assistant Public Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d 825, 830 (Alameda); County of Orange (2016) PERB Decision No. 2478-M, adopting proposed decision at p. 8.) To meet its burden, a severance petitioner must show that the proposed unit has a community of interest separate and distinct from other employees in the existing bargaining unit. (Alameda, supra, 33 Cal.App.3d at p. 831; Glendale, supra, PERB Decision No. 2773-M, p. 27.)

However, if the existing bargaining unit was certified by PERB, the severance petitioner must show that the proposed unit is “more appropriate” than the existing unit. (Glendale, supra, PERB Decision No. 2773-M, p. 27, fn. 14.)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.01000 – In General/Definition of Appropriate Unit

MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” Such local rules may include provisions for, among other things, determination of appropriate bargaining units. (§ 3507, subds. (a)(3), (a)(4).)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.01000 – In General/Definition of Appropriate Unit

It is well established that “while employees have the right to choose which employee organization, if any, they want to represent them, they have no right to choose the bargaining unit in which their classification or position is placed.” (Regents of the University of California (2010) PERB Decision No. 2107-H, p. 24; City of Livermore, supra, PERB Decision No. 2525-M, p. 14, fn. 6.)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.02000 – Bargaining/Representation History

City reasonably determined that the proposed unit is not appropriate, where the petitioned-for unit would include the City’s 12 unrepresented Police Supervisors, in addition to nearly 80 employees severed from two represented bargaining units. The City reasonably found the positive history of labor relations spanning several decades evidenced a stable collective bargaining relationship weighing against severing classifications from established units.
The City’s determination reflects the principle that severing classifications from an established unit can destabilize negotiating relationships. (Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) Accordingly, maintaining continuity generally weighs against severance, absent proof that collective negotiations are incapable of addressing the needs of a discrete minority within an existing unit. (Ibid.) Even if the incumbent unions did not achieve bargaining success in every area of concern to non-sworn police personnel, petitioning Association failed to demonstrate that any lack of bargaining success was due to the incumbents’ failure to represent non-sworn personnel interests adequately in relation to other classifications. (State of California (2011) PERB Decision No. 2214-S, p. 9 [severance petitioner required to show that lack of bargaining success resulted from the incumbent unions’ failure to represent adequately the petitioned-for employees].)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.03000 – Community of Interest

The City reasonably rejected petitioner’s claim that the petitioned-for employees have a community of interest separate and distinct from those employees in the established General Municipal Employees and Clerical and Technical bargaining units. Working conditions, such as round-the-clock work shifts and difficult interactions with the public—the primary community of interest factors petitioner addressed—are neither unique to the petitioned-for unit nor always sufficient on their own to warrant separate representation. (Los Rios Community College District (2018) PERB Decision No. 2587, p. 5; City of Lodi (2010) PERB Decision No. 2142-M, adopting proposed decision at p. 10.)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.04000 – Efficiency of Operation

The City did not unreasonably apply its local rules when it found that any labor negotiation efficiencies to be gained by placing all non-sworn Police Department employees into a single bargaining unit represented by a single exclusive representative were offset by the increase in the number of bargaining units and by the inefficiency of fragmenting classifications between more than one unit. Unit proliferation is not determinative by itself; for instance, potential inefficiency resulting from such proliferation can be offset by other factors, such as providing residual unrepresented employees a reasonable unit placement and therefore an opportunity to exercise their statutory rights. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, pp. 30-31 [despite employer’s prediction regarding potential future inefficiencies, employer was required to create a separate unit for residual unrepresented employee group where union representing larger unit had declined opportunity to have the residual employees added]; Los Rios Community College District (2018) PERB Decision No. 2587, p. 7 [efficiency argument militates against severance only if there is concrete evidence that an employer’s operational efficiency will be unduly impaired].)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.13000 – Supervisors

MMBA section 3507.5 explicitly permits an employer to adopt reasonable rules for determining which employees are “managerial” or “confidential,” and an employer may consider such determinations when configuring bargaining units. (City of Palmdale (2011) PERB Decision No. 2203-M, p. 6, fn. 7.) In contrast, while an employer may have reason to label certain employees as “supervisors” for operational reasons, that label has no independent legal significance under the MMBA. (Ibid.) An MMBA employer may not categorically require that all employees with supervisory duties be excluded from any bargaining unit that contains non supervisors; rather, supervisory duties at most may be relevant to unit determination solely as one of numerous community of interest factors. (Id. at p. 14.)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.13000 – Supervisors

Where petition did not seek a new stand-alone unit consisting solely of 12 unrepresented Police Supervisors, PERB declined to consider what unit placements might be reasonable for those employees, particularly as that question might turn on whether a union representing an existing City bargaining unit is willing to have the City add the Police Supervisors to such an existing unit. (Santa Clara Valley Water District, supra, PERB Decision No. 2531-M, p. 17.)

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.14000 – Splitting of Classifications

While there is no bright line rule against splitting classifications where other factors warrant it, PERB generally disfavors splitting a single classification across multiple units when the employees within the same classification perform the same work under virtually identical conditions of employment. (Oakland Unified School District (2016) PERB Decision No. 2509, at pp. 19-20.) The City reasonably found that this factor cut against granting the severance petition. If the severance request was granted, two classifications would be divided among two bargaining units, the two classifications’ job duties are common across all City departments, and there is no distinction in their work, whether they are assigned to the Police Department or any other City department.