Decision A367S – State of California (Information Technology Bargaining Unit 22 and Service Employees International Union Local 1000/California State Employees Association)

It is well settled that although not bound, PERB will take cognizance of NLRB decisions where appropriate as an aid in interpreting identical or analogous provisions of the statutes. Additionally, NLRB’s experience with doctrines developed in a series of cases rather than codified in a federal statute or regulation can be considered where such doctrines are used as a prototype or model for California labor enactments. Legally, there is no basis to take cognizance of these cases given there are no parallel state and federal laws regarding the revocation of authorization signatures being interpreted. Similarly, these cases involve no case doctrine validating signature revocations which has been used as a prototype for PERB regulations.

PERB regulations are enacted pursuant to and in conformity with authority granted by the Legislature through the statutes creating PERB’s jurisdiction.

The case is remanded to the General Counsel’s office for a determination of the sufficiency of proposed unit’s proof of support for its severance petition without the use of the exclusive representative’s revocation cards to offset signatures on said severance petition.

We discuss Antelope Valley in detail herein so that the context of our decision as to its applicability is readily understood. The Board hereby takes official notice of the entire record in Antelope Valley.

Under PERB’s severance petition rules, the first step to establish such a unit of employees is to file a severance petition which is accompanied by proof of majority support in the unit claimed to be appropriate. (PERB Reg. 40200(a) and (b).) This proof of support is defined by PERB Regulation 32700. PERB Regulation 32700’s provisions specify that the proof of support must demonstrate that the employee desires to be represented by the employee organization and what information must be provided as to each employee signing the proof of support. There is no language in these proof of support regulations or any PERB rules governing severance petitions which provides that this demonstration of an employee’s desire to be represented may be controverted by a showing that the employee has subsequently withdrawn his or her support. Because no PERB regulations exist authorizing the use of signature revocations, we find that the Board agent improperly accepted the exclusive representative’s authorization revocation cards to determine if the proposed unit had proof of majority support. We hold that the Board agent erred as a matter of law when he determined that PERB’s approval of revocation cards in Antelope Valley applied to the revocation cards submitted by the exclusive representative thereby authorizing them to be used to offset signatures on the proposed unit’s Dills Act severance petition. We further find that no procedures have been enacted under the Dills Act which provide employees with a right to revoke their signatures on a severance petition, thus there was no legal basis to accept the exclusive representative’s revocation cards.

Under PERB’s severance petition rules, the first step to establish such a unit of employees is to file a severance petition which is accompanied by proof of majority support in the unit claimed to be appropriate. (PERB Reg. 40200(a) and (b).) This proof of support is defined by PERB Regulation 32700. PERB Regulation 32700’s provisions specify that the proof of support must demonstrate that the employee desires to be represented by the employee organization and what information must be provided as to each employee signing the proof of support. There is no language in these proof of support regulations or any PERB rules governing severance petitions which provides that this demonstration of an employee’s desire to be represented may be controverted by a showing that the employee has subsequently withdrawn his or her support. Because no PERB regulations exist authorizing the use of signature revocations, we find that the Board agent improperly accepted the exclusive representative’s authorization revocation cards to determine if the proposed unit had proof of majority support. We hold that the Board agent erred as a matter of law when he determined that PERB’s approval of revocation cards in Antelope Valley applied to the revocation cards submitted by the exclusive representative thereby authorizing them to be used to offset signatures on the proposed unit’s Dills Act severance petition. We further find that no procedures have been enacted under the Dills Act which provide employees with a right to revoke their signatures on a severance petition, thus there was no legal basis to accept the exclusive representative’s revocation cards.

PERB has enacted a series of regulations allowing for severance petitions and the procedures to be followed. (PERB Regs. 40200 through 40260.) Under PERB’s severance petition rules, the first step to establish such a unit of employees is to file a severance petition which is accompanied by proof of majority support in the unit claimed to be appropriate. (PERB Reg. 40200(a) and (b).) This proof of support is defined by PERB Regulation 32700. PERB Regulation 32700’s provisions specify that the proof of support must demonstrate that the employee desires to be represented by the employee organization and what information must be provided as to each employee signing the proof of support. There is no language in these proof of support regulations or any PERB rules governing severance petitions which provides that this demonstration of an employee’s desire to be represented may be controverted by a showing that the employee has subsequently withdrawn his or her support. Because no PERB regulations exist authorizing the use of signature revocations, we find that the Board agent improperly accepted the exclusive representative’s authorization revocation cards to determine if the proposed unit had proof of majority support.