Decision 2821M – County of Monterey

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, determining appropriate bargaining units. (MMBA, § 3507, subds. (a)(3), (a)(4); City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) (p. 9.)

When challenging an MMBA employer’s unit determination under its local rules, the challenging union has the burden of demonstrating the decision was not reasonable. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) If reasonable minds could differ over whether the determination comports with the local rules and the MMBA, PERB should not substitute its judgment for that of the employer. PERB finds no unfair practice where the employer reasonably interprets its own rules in a manner that effectuates the MMBA’s purposes. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10, citing City of Madera (2016) PERB Decision No. 2506-M, p. 5.) The inverse is true if the employer acted inconsistently with a reasonable interpretation of the rule. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10.) (pp. 9-10.)

In reviewing an MMBA employer’s unit determination under its local rules, PERB normally applies a rebuttable presumption that the determination is reasonable. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, pp. 21-22.) But when the employer “simply state[s] the standard that applies and then provide[s] a conclusion without also including the analytical process in its decision,” the presumption of reasonableness falls away. (City of Livermore (2017) PERB Decision No. 2525-M, adopting proposed decision at p. 48.) While PERB may consider evidence presented at the hearing about the employer’s reasoning for its decision, PERB need not accept post-hoc rationalizations offered to cure defects in the determination. (Id. at pp. 10-11 & adopting proposed decision at p. 48.)

Because PERB found that reasonable minds could not differ over the appropriateness of adding per diem Registered Nurses (RN) and Nurse Practitioners (NP) to the existing unit of regular employee RNs and NPs (Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 11), PERB did not need to reach union’s alternative argument that the County should have granted union a hearing on its appeal. (p. 21, fn. 14.)

PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” (p. 8, fn. 6.)

PERB determined that any lawful application of county’s local rules required county to place per diem registered nurses (RN) and nurse practitioners (NP) in same unit as regular RNs and NPs. (p. 10.) Placing just over 50 County per diem registered nurses and nurse practitioners in a newly formed unit all their own, rather than in an existing unit comprising over 500 County RNs and NPs who perform identical work at the same hospital, resulted in unnecessary fragmentation. (pp. 10-12.)

County’s local rules specified which employment characteristics are most important in assessing community of interest: “duties, qualifications, skills, and working conditions of employees.” In this respect, the County’s local rules track precedent by eschewing reliance on wages, benefits, just cause protection, and other employment terms typically established through bargaining and instead focusing on less changeable characteristics. (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 17, citing Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12 [community of interest determination should not turn on 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].) (p. 12.)

There is always variation between any two classifications in a bargaining unit, and such variation does not defeat community of interest if there are sufficient countervailing commonalities. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 30; San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, pp. 17-18.) Commonalities among critical employment characteristics between per diem and regular employee registered nurses and nurse practitioners outweighed differences by a wide margin. The sole characteristics distinguishing per diem and regular registered nurses (RN) and nurse practitioners (NP) related to scheduling, compensation, and job protections. Such typically bargainable distinctions do not overcome commonalities in characteristics that are less likely to be subject to bargaining, particularly where the per diem and regular classifications have the same education, skill, and licensure requirements, as well as the same duties. (pp. 12-15.)

County local rules tracked settled precedent by repeatedly referencing the need to determine the broadest feasible group based on community of interest, and to avoid fragmentation of units. (See, e.g., County of Santa Clara (2019) PERB Decision No. 2670-M, p. 19 [“[P]ublic sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) Because “[t]he foundation of public sector labor relations is to protect employees’ right to representation and to balance those rights with public employers’ interest in maintaining operational efficiency . . . [PERB] generally seek[s] to avoid the fragmentation of employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) (p. 11.)

PERB determined that any lawful application of county’s local rules required county to place per diem registered nurses (RN) and nurse practitioners (NP) in same unit as regular RNs and NPs. (p. 10.) Placing just over 50 County per diem registered nurses and nurse practitioners in a newly formed unit all their own, rather than in an existing unit comprising over 500 County RNs and NPs who perform identical work at the same hospital, resulted in unnecessary fragmentation. (pp. 10-12.)

County local rules tracked settled precedent by repeatedly referencing the need to determine the broadest feasible group based on community of interest, and to avoid fragmentation of units. (See, e.g., County of Santa Clara (2019) PERB Decision No. 2670-M, p. 19 [“[P]ublic sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) Because “[t]he foundation of public sector labor relations is to protect employees’ right to representation and to balance those rights with public employers’ interest in maintaining operational efficiency . . . [PERB] generally seek[s] to avoid the fragmentation of employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) (p. 11.)

The preference for broader units in the public sector does not warrant accreting a group of employees into a unit if the exclusive representative objects. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 30, fn. 29 & p. 31, fn. 31; County of Santa Clara (2019) PERB Decision No. 2670-M, p. 31; Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 17.) (p. 12, fn. 9.)

County’s local rules specified which employment characteristics are most important in assessing community of interest: “duties, qualifications, skills, and working conditions of employees.” In this respect, the County’s local rules track precedent by eschewing reliance on wages, benefits, just cause protection, and other employment terms typically established through bargaining and instead focusing on less changeable characteristics. (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 17, citing Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12 [community of interest determination should not turn on 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].) (p. 12.)

There is always variation between any two classifications in a bargaining unit, and such variation does not defeat community of interest if there are sufficient countervailing commonalities. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 30; San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, pp. 17-18.) Commonalities among critical employment characteristics between per diem and regular employee registered nurses and nurse practitioners outweighed differences by a wide margin. The sole characteristics distinguishing per diem and regular registered nurses (RN) and nurse practitioners (NP) related to scheduling, compensation, and job protections. Such typically bargainable distinctions do not overcome commonalities in characteristics that are less likely to be subject to bargaining, particularly where the per diem and regular classifications have the same education, skill, and licensure requirements, as well as the same duties. (pp. 12-15.)

The record did not show that collective negotiations were incapable of addressing the potential divergence of interests between per diem and regular registered nurses (RN) and nurse practitioners (NP) over issues such as scheduling, compensation, and job protections. (City of Pasadena (2021) PERB Decision No. 2788-M, pp. 10-12; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) (pp. 15-16.)

Where a union petitioning for unit modification establishes a community of interest between unrepresented employees and the existing unit, the classification’s history of unrepresented status bears little weight. (See San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 12, fn. 11; Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 18-23; Hemet Unified School District (1990) PERB Decision No. 820.) Employee relations history is more important when employees have historically been in an established unit—such as when PERB considers a severance petition—because under those circumstances, maintaining continuity weighs against severance absent proof that collective negotiations are incapable of addressing the needs of a discrete minority within an existing unit. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 10; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.)

PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” (p. 8, fn. 6.)