Decision 2975M – County of Kern and Kern County Civil Service Commission

MMBA-covered employees “have the right to represent themselves individually in their employment relations with the public agency.” (MMBA, § 3502; see also § 3503 [MMBA does not “prohibit any employee from appearing in his own behalf in his employment relations with the public agency”]; Alameda County Medical Center (2004) PERB Decision No. 1620a-M, p. 3 [MMBA section 3502 protects unionized employees’ right “to represent themselves in their employment relations with the public agency employer” but does not authorize employer to bypass union and negotiate separate employment terms with individual employees]; Alameda County Medical Center (2004) PERB Decision No. 1620-M, p. 2 [MMBA section 3503 protects unionized employees’ right “to meet with the employer without the employee organization” but does not authorize the employer to bypass the union and negotiate separate employment terms with individual employees].) (p. 36.)

Determining “whether a particular employee’s job is so essential that the employee may not legally strike is a complex and fact-intensive matter.” (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 601.) The starting point is “the nature of the services the alleged essential employees perform and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety.” (County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.) (pp. 42-43.)

Public defenders are akin to other county employees whose right to strike is not absolute due to the critical work they do. This can include not only physicians and certain court personnel, but multiple other county classifications whose incumbents protect the public 24 hours per day, 365 days per year. (See County of San Mateo (2019) PERB Order No. IR-61-M, pp. 10-21 & 26.) Public defenders and other attorneys employed in the public sector are not prohibited from striking, as long as the attorney does not “overstep[] ethical boundaries,” meaning that the attorney “violates actual disciplinary rules, most particularly rules pertaining to the attorney’s duty to represent the client faithfully, competently, and confidentially.” (Santa Clara County Counsel Attorneys Assn. v. Woodside (1994) 7 Cal.4th 525, 552; accord County of San Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 35 [public defenders have full MMBA rights, provided they do not violate the California Rules of Professional Conduct].) Similarly, physicians employed in the public sector have full MMBA rights, provided they use professional judgment to assure compliance with professional codes. Such consideration may lead to a range of actions to protect clients or patients, including making alternate arrangements, reasonable delays, or negotiating line passes whereby the union exempts employees who play important roles in the criminal justice or health care systems from striking to allow compliance with mandatory court deadlines or, where alternate arrangements cannot be made, to protect against substantial and imminent risk to patients’ health and safety. (pp. 43-47 & fn. 11.)

The Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD) applies to employers subject to any of California’s public sector labor relations statutes, including the MMBA. (PEDD, § 3552(c).) Thus, any entity that constitutes an MMBA employer is automatically a PEDD employer. (PEDD, § 3522(c); El Camino Healthcare District, et al. (2023) PERB Decision No. 2868-M, p. 4, fn. 5.) (p. 62, fn. 16.)

MMBA-covered employees “have the right to represent themselves individually in their employment relations with the public agency.” (MMBA, § 3502; see also § 3503 [MMBA does not “prohibit any employee from appearing in his own behalf in his employment relations with the public agency”]; Alameda County Medical Center (2004) PERB Decision No. 1620a-M, p. 3 [MMBA section 3502 protects unionized employees’ right “to represent themselves in their employment relations with the public agency employer” but does not authorize employer to bypass union and negotiate separate employment terms with individual employees]; Alameda County Medical Center (2004) PERB Decision No. 1620-M, p. 2 [MMBA section 3503 protects unionized employees’ right “to meet with the employer without the employee organization” but does not authorize the employer to bypass the union and negotiate separate employment terms with individual employees].) (p. 36.)

MMBA section 3507(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 recognizing employee organizations and determining appropriate bargaining units. (MMBA, § 3507(a)(3) & (a)(4); County of Monterey (2022) PERB Decision No. 2821-M, p. 9.) (p. 18.)

Challenges to an MMBA employer’s unit determination normally allege that the employer either maintained a facially unlawful local rule, violated one or more of its rules, or applied its rules in an unreasonable or unlawful manner. (MMBA, §§ 3507(d) & 3509(b) (c); PERB Reg. 32603(f) & (g); County of Monterey (2022) PERB Decision No. 2821-M, p. 21; County of Orange (2016) PERB Decision No. 2478-M, p.16.) (pp. 18-19.)

A charging party has the burden of proof to the extent it claims that an MMBA employer’s unit determination violated the employer’s local rules or was unreasonable, and PERB does not substitute its judgment for that of the employer if reasonable minds could differ as to how applicable standards apply to the record. (County of Monterey (2022) PERB Decision No. 2821-M, p. 9.) The amount of deference PERB affords an MMBA employer’s unit determination varies. For instance, if the MMBA employer provides a sufficient explanation of its unit determination, PERB applies a rebuttable presumption that the determination is reasonable. (Id. at p. 10.) In contrast, if the employer merely states the applicable standard and then provides “a conclusion without also including the analytical process in its decision,” the presumption of reasonableness falls away. (Ibid.) The County’s failure to draft a written decision to sufficiently explain the decisionmaker’s analysis opened the decision to a greater degree of scrutiny. (pp. 19-20.)

When a charging party successfully challenges an MMBA employer’s representation decision, PERB must direct the employer to cease applying its unlawful decision and to instead act consistently with the Board’s decision. (County of Monterey (2022) PERB Decision No. 2821-M, p. 22 [directing county to grant unit modification petition and cease and desist from unreasonably applying local rules]; City of Long Beach (2021) PERB Decision No. 2771-M, p. 20 [directing city to process decertification petition in a manner consistent with PERB’s decision]; Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 39 [directing hospital district to grant petition for recognition and cease and desist from unreasonably applying local rules].) Where severance petition sought an outcome that is inconsistent with the County’s local rules, the MMBA, and precedent, the Board directed the County to dismiss the severance petition and the County’s Civil Service Commission to cease and desist from finding the proposed new unit to be appropriate. (p. 65.)

Because the Board’s remedy ordering the County to dismiss a severance petition sufficiently resolved the matter, the Board exercised its discretion not to address the remainder of the exceptions. (p. 3.)

Because no party excepted to the violations the ALJ found, the Board expressed no opinion on those issues and incorporated the ALJ’s corresponding remedy into the Board’s remedial order. (p. 3, fn. 3.)

PERB favors hearing cases on their merits (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 21), and here SEIU did not waive its challenge to the County Civil Service Commission’s unit determination. (pp. 62-65.)

Preferencing the largest feasible unit with a community of interest, the principal unit determination criterion, means that a severance petition fails unless the history of collective bargaining shows that the employees at issue in the severance petition no longer have a community of interest with their colleagues in the broader unit(s). Furthermore, a severance petitioner’s burden is significant not only because of the preference for larger units, but also based on an equally important preference for stability in labor relations. (Los Rios Community College District (2018) PERB Decision No. 2587, p. 4 [noting that “a stable negotiating relationship will not be lightly disturbed”]; City of Livermore (2017) PERB Decision No. 2525-M, adopting proposed decision at p. 38 [same].) (pp. 24-25.)

Severance is not appropriate merely because a small group of employees performing similar duties or related work have a community of interest with one another that is stronger than their community of interest with other employees in a larger, established unit. (See, e.g., Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-7 [rejecting severance petition seeking to remove police officers, police detectives, and college safety officers from established, larger unit of maintenance, operations, and public safety employees].) If a severance petitioner only needed to show that a small group had a stronger community of interest with one another than with the larger unit, that would be an easy standard to meet and would accordingly lead to unit proliferation. (Regents of the University of California (2010) PERB Decision No. 2107-H pp. 28-29.) Rather, a severance petitioner must show that its proposed new unit has a community of interest that is separate and distinct from the established unit to such an extent that collective bargaining is “incapable of addressing the needs of a discrete minority within the existing unit.” (City of Pasadena (2021) PERB Decision No. 2788-M, p. 10.) Absent such proof, PERB presumes that effective representation is possible even when a “pluralistic bargaining unit” includes a “diverse set of occupational groupings.” (Regents of the University of California (2025) PERB Order No. Ad-525, p. 26.) The subordinate factors’ relevance in a severance context is for determining whether a petitioner has satisfied its burden to establish that the petitioned-for classifications have such a distinct community of interest that collective bargaining can no longer address their interests within their initially-established units. (pp. 25-26.)

The “fullest freedom to exercise rights” factor dovetails with longstanding policy developed under PERB-administered statutes, providing employees “the ability to choose an organization which is an effective representative.” (Sweetwater Union High School District (1976) EERB Decision No. 4, p. 9.) Effective representation is “largely determined by the community of interest and established practices of the employees.” (Ibid.) Importantly, this factor has never assumed that smaller units, while having perhaps a greater internal community of interest, will result in more effective representation for employees. (Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-5.) Rather, in severance matters PERB has concluded that a stable negotiating relationship promotes effective representation, and considered whether under the existing unit structure, the incumbent representative is capable of effectively addressing competing bargaining interests. (Id. at p. 5.) To address this question, PERB has examined the parties’ negotiating history to determine whether the incumbent representative has historically neglected or ignored a minority’s interests. (Id. at pp. 5-6.) PERB has applied the same analysis in prior cases where the “fullest freedom” factor was present in a local agency’s unit determination rules. (See City of Pasadena (2021) PERB Decision No. 2788-M, pp. 11-13; see also City of Glendale (2021) PERB Decision No. 2773-M, pp. 29-30.) (p. 31.)

A severance petitioner has the burden to show that the current unit structure is incapable of addressing unique interests of the classifications is seeks to sever. (Los Angeles Unified School District (1998) PERB Decision No. 1267, adopting proposed decision at pp. 55-56 [a “readily identifiable minority of unit members is not required to relinquish its issues regularly to the more powerful majority”].) Employees cannot meet this standard merely by showing a “history of dissension and lack of alternatives to mediate legitimate conflicts” marked by “two or three issues” that their union has “failed to address to [their] satisfaction.” (Id., adopting proposed decision at p. 58.) Even evidence that an incumbent union has provided poor representation does not indicate that the established unit structure neglects the needs of one sub-group, unless the evidence shows that representational efforts skew against the group in question and/or in favor of other groups. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 12.) (pp. 32, 38.)

“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.” (City of Pasadena (2021) PERB Decision No. 2788-M, p. 11; accord Regents of University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159, 190 [affirming that employees have no “right to choose the bargaining unit in which their classification or position is placed”].) Rather, unit determinations flow from objective criteria, including the principal criterion of finding the largest feasible group with a community of interest. Unit determinations therefore are based on objective facts rather than on employees’ subjective sentiments, which may change from year to year or decade to decade. Otherwise, changing employee sentiments over time would lead to constantly shifting unit structures. Instead, changing employee sentiments can lead to decertification and/or change in which union represents a given unit. The severance inquiry does not turn on employee dissatisfaction. If it did, severance and unit proliferation would be pervasive. (pp. 40-41.)

Bargaining unit history “is more important when employees have historically been in an established unit—such as when we consider 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.” (County of Monterey (2022) PERB Decision No. 2821-M, pp. 18-19; see also City of Pasadena (2021) PERB Decision No. 2788-M, p. 10 [same]; Los Rios Community College District (2018) PERB Decision No. 2587, p. 4, citing Livermore Valley Joint Unified School District (1981) PERB Decision No. 165, p. 6 [“Negotiating history is of particular importance when considering a severance request, as ‘a stable negotiating relationship will not be lightly disturbed’”].) (pp. 48-49.)

Community of interest comprises employee duties, skills, educational requirements, and working conditions, and focuses on inherent aspects of a position rather than employment terms and conditions that are changeable through collective bargaining. (County of Monterey (2022) PERB Decision No. 2821-M, p. 12.) Severance petition which sought to sever classifications from both professional and technical units cannot be appropriate merely because two classifications collaborate more closely with one another than they do with other classifications in their units. Such position would thus destabilize public sector labor relations by fragmenting public entities’ labor force into far more bargaining units than currently exist. Similarly, while public defenders’ and investigators’ skills are complementary and allow them to work toward a common purpose, that is not a basis for finding a community of interest that is so separate and distinct from the employees’ established units that collective bargaining is incapable of addressing the needs of a discrete minority within the existing unit. Moreover, educational requirements for public defenders and investigators are quite different and strongly undercut severance petitioner’s proposed unit. Comparable working conditions, common for professional and non-professional employees working in the same public agency departments, do not undercut the preference for the largest feasible unit with a community of interest, as it does not show that collective bargaining is incapable of adequately serving public defenders in the professional unit and investigators in the technical unit. (pp. 55-60.)

Local rules adopted by MMBA employers often state that the principal criterion for unit determinations is whether the unit proposed contains the broadest feasible grouping of positions that share an identifiable community of interest. Common subordinate factors include: (a) which unit will assure employees the fullest freedom in the exercise of rights; (b) the history of employee relations, in the unit, among other employees of the employer, and in similar public employment; (c) the effect of the unit on the efficient operation of the employer, and sound employer-employee relations; and (d) community of interest, including extent to which employees have common skills, working conditions, job duties, or similar educational requirements. A local rule requiring the broadest feasible grouping prevents undue unit proliferation and fragmentation. Because these criteria are akin to the statutory criteria under EERA section 3545(a), it is proper to rely on PERB precedent interpreting EERA and other PERB-administered acts when interpreting an MMBA employer’s local rules. (pp. 22-24.)

Challenges to an MMBA employer’s unit determination normally allege that the employer either maintained a facially unlawful local rule, violated one or more of its rules, or applied its rules in an unreasonable or unlawful manner. (MMBA, §§ 3507(d) & 3509(b) (c); PERB Reg. 32603(f) & (g); County of Monterey (2022) PERB Decision No. 2821-M, p. 21; County of Orange (2016) PERB Decision No. 2478-M, p.16.) (pp. 18-19.)

MMBA section 3508 affords peace officers the right to participate in unions composed solely of peace officers. Just as MMBA section 3507.3 permits an “all professionals” unit, MMBA section 3508 permits an “all peace officer” unit absent proof that such a broader unit “is unable to effectively represent” a particular subset of employees. (Santa Clara County District Attorney Investigators Assn. v. County of Santa Clara (1975) 51 Cal.App.3d 255, 265.) (p. 29.)

MMBA section 3507.3 affords professional employees the right to be represented separately from non-professionals. “‘Professional employees,’ for the purposes of this section, means employees engaged in work requiring specialized knowledge and skills attained through completion of a recognized course of instruction, including, but not limited to, attorneys, physicians, registered nurses, engineers, architects, teachers, and the various types of physical, chemical, and biological scientists.” In a unit dispute involving professional employees, any party has the right to insist on a referral to SMCS, and at that point the employer must pause all proceedings under its local rules to allow SMCS to mediate and/or issue a recommendation. (International Federation of Prof. & Technical Engineers v. City and County of San Francisco (2000) 79 Cal.App.4th 1300, 1309-1310 [“the procedure of section 3507.3 is meant to be free of local variation” and “the subject covered by section 3507.3 is not subject to local regulation”].) For MMBA unit disputes that go to the Office of the General Counsel (OGC) in the first instance (because the employer has no applicable local rule), if the dispute involves professional employees and any party asks for a referral to SMCS, then OGC must similarly honor that request and pause proceedings. (pp. 26-28.)

MMBA section 3507.3, which affords professional employees the right to be represented separately from non-professionals, does not necessarily prohibit a mixed unit of professionals and non-professionals, but provides that professional employees placed into such a unit have the right to severance if a union seeks to represent them in a professionals-only unit and demonstrates sufficient proof of support in an initial petition and eventual election. (Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 14.) Thus, units containing both professional and non-professional employees are lawful, but such units are inherently unstable. (pp. 28, 50-53.)

MMBA section 3507.3 does not afford every group of professionals a right to its own unit. Accordingly, an “all professionals” grouping fully protects the right of professionals to be represented separately from non-professionals set forth in section 3507.3. (County of Orange (2016) PERB Decision No. 2478-M, pp.13-14.) However, traditional community of interest criteria can merit narrower professional units, depending on the circumstances. (See, e.g., Alameda County Assistant Public Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d 825, 832 [appellate court reviewing initial division of employees into units ordered the employer to place the public defenders in their own unit, finding that they were “Sui generis” and had little in common with other non-healthcare professionals].) In California counties where public defenders are part of a broad professional unit, they may seek to sever themselves into a stand-alone public defenders’ unit, but they bear the burden of showing that the larger, established unit cannot adequately address their interests. (pp. 28-29.)