Decision A486M – Central Basin Municipal Water District

LA-RR-1296-M

Decision Date: March 24, 2021

Decision Type: Administrative Appeal

Description: AFSCME filed a petition seeking to be recognized as the exclusive representative of the District’s non-managerial employees. PERB’s Office of the General Counsel (OGC) determined that: (1) AFSCME submitted proof of support from a majority of employees in the proposed bargaining unit; (2) no other employee organization demonstrated at least 30 percent proof of support; (3) the District did not dispute that the proposed unit was appropriate; and (4) the District had not granted recognition. Accordingly, OGC certified AFSCME as the proposed unit’s exclusive representative under PERB Regulation 61275. The District appealed OGC’s administrative determination.

Disposition: The Board affirmed the administrative determination. The District waived its position with respect to AFSCME’s proof of support and the appropriateness of the unit by failing to file a timely challenge, despite having been provided multiple opportunities to do so. PERB did not consider five employee declarations the District improperly submitted for the first time with its appeal, but even had PERB considered the declarations, they would not have constituted cause to hold an evidentiary hearing. Potential revocations which postdated the date the petition was filed were irrelevant

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Perc Vol: 45
Perc Index: 88

Decision Headnotes

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

Under the MMBA, a union seeking to exclusively represent an employee group constituting an appropriate unit may petition for an election. (Gov. Code, § 3507.1, subd. (a).) The union alternatively may require the employer to abide by the results of a “card check” in which a neutral third party determines if the union has collected sufficient proof of support from employees to demonstrate a majority within the unit, though this option is unavailable if another union already exclusively represents the unit or can demonstrate at least 30 percent support in the unit. (Id., subd. (c).) The statutory card check provision establishes an expedited method for certifying an exclusive representative for purposes of meeting and conferring over wages, hours and terms and conditions of employment. (Morongo Basin Transit Authority (2015) PERB Order No. Ad-430-M, p. 11.)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

The MMBA grants local public agencies the authority to adopt reasonable rules concerning recognition of unions and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (Gov. Code, § 3507, subd. (a).) However, if an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap. (Gov. Code, § 3509, subd. (a); Morongo Basin Transit Authority (2015) PERB Order No. Ad-430-M, p. 8; County of Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M, p. 17.)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.02000 – Request for Recognition

Because PERB’s Office of the General Counsel determined that petitioning union demonstrated majority support, and the District had not challenged unit appropriateness, the District was obligated to recognize petitioning union as the exclusive representative of the proposed unit; and when the District failed to do so, OGC was required to certify petitioning union. (Gov. Code, § 3507.1, subd. (c).)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.01000 – In General; Filing Requirements

Decertification is in most instances an appropriate procedure for employees who have changed their mind. However, a decertification petition cannot be filed in at least the first year after recognition or certification (Gov. Code, § 3507, subd. (b)), and no decertification election is possible if unfair practices prevent a fair election from proceeding. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, pp. 5-6.) Because employer unfair practices can make it impossible to hold a decertification election, a clear lesson emerges: an employer concerned about employees’ ability to decertify a union will maximize that ability by refraining from unfair practices.

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

In reviewing a Board agent’s proof-of-support determination, the Board applies an abuse-of-discretion standard. (Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 13.)

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

An employer that does not dispute the appropriateness of a proposed unit, after having been provided an opportunity to do so, waives any argument that the unit is inappropriate.

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

In determining whether a petitioner has achieved a majority (or a lower level of support, as applicable in other contexts), PERB’s Office of the General Counsel assesses proof of support based on an employee list as the date the petition was filed and, correspondingly, employee support or lack thereof as of the same date. (Regents of the University of California (2017) PERB Order No. Ad-453-H, p. 21 and adopted administrative determination at p. 5; Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 14.) Purported revocation which postdated petition filing date irrelevant as a matter of law.