Decision A525H – Regents of the University of California

In resolving a petition for certification, recognition, or unit modification, PERB normally approves a petitioner’s proposed unit if it would constitute an appropriate unit, even if it would not qualify as the most appropriate unit. (Regents of University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159, 182.) (pp. 8, 19-20.)

PERB is not bound by private agreements in representation matters calling for unit placement determinations, and either party is free to ask PERB at any time to make unit determinations that disregard or adjust such a private agreement. (Merced City School District (2024) PERB Decision No. 2901, pp. 34-35, citing Regents of the University of California (2010) PERB Decision No. 2107, pp. 18-19 and Hemet Unified School District (1990) PERB Decision No. 820, p. 5.) (pp. 29-30.)

Although employees’ history of representation can be an important community of interest factor, it bears little weight for a group that has never been represented. (County of Monterey (2022) PERB Decision No. 2821-M, p. 18 (Monterey); 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, pp. 18-23; Hemet Unified School District (1990) PERB Decision No. 820.) Employees’ history of representation “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.” (Monterey, supra, pp. 18-19; City of Pasadena (2021) PERB Decision No. 2788-M, p. 10; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) (p. 25, fn. 12.)

PERB normally bases a community of interest determination on the inherent aspects of a position more so than employment terms and conditions that are changeable through collective bargaining. (Merced City School District (2024) PERB Decision No. 2901, p. 23 (Merced); County of Monterey (2022) PERB Decision No. 2821-M, p. 12 (Monterey); Center Unified School District (2014) PERB Decision No. 2379, p. 10; accord § 3579(a)(1).) The inherent aspects of a position tend to include: employees’ duties, function, and/or common goals (which may result in interchange with other unit employees); supervision; working conditions that are not easily susceptible to change through collective bargaining; qualifications (including skills, education, and training); the extent to which they belong to the same employee organization; and employees’ history of representation. (Govt. Code, § 3579(a)(1); Merced, supra, p. 23; Monterey, supra, PERB Decision No. 2821-M, p. 12.) (pp. 6, fn. 6 & 24.)

While employees have the right to express their individual preferences and thereby collectively decide which union (if any) they want to represent their unit through petitions for recognition, certification, decertification, and/or severance, they do not normally have the “right to choose the bargaining unit in which their classification or position is placed.” (Regents v. PERB (2020) 51 Cal.App.5th 159, 190; Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 23-24.) Thus, in accretion cases where the unrepresented employees total less than 10 percent of the unit to which they would be added, a petitioner normally need not demonstrate that it has the employees’ support. (Regents v. PERB, supra, 51 Cal.App.5th 159, at pp. 190-192.) In such cases, California public sector labor laws favor stable and harmonious labor relations over affording employees a right to choose their unit placement. (Id. at p. 192.) However, a partially countervailing legal principle nonetheless applies in limited circumstances: if a substantial number of employees in a group have decided to join the same employee organization, such mass membership constitutes a relevant community of interest factor under HEERA section 3579(a)(1) and comparable parts of selected other labor relations acts. (Govt. Code, §§ 3545(a), 99565(a)(1); St. HOPE Public Schools (2018) PERB Order No. Ad-472-H, p. 9.) (p. 34.)

In determining which of two competing unit configurations was most appropriate under HEERA, the Board (1) must consider the impact of dividing a classification (Govt. Code, § 3579(a)(2)); and (2) must apply a rebuttable presumption against dividing occupational groups (§ 3579(c)). While HEERA does not define the phrase “occupational group” found in section 3579(c), PERB does not interpret it to mean the same thing as “classification,” since that would render superfluous part of section 3579(a)(2). Analogous logic dictates that there is no presumption against splitting a classification; rather, HEERA merely instructs PERB to consider the impacts of splitting a classification. (§ 3579(a)(2).) The presumption against splitting occupational groups fits best with the other unit determination criteria in section 3579 (including the community of interest factors found in section 3579(a)(1)) when PERB applies the presumption functionally rather than mechanistically. Under PERB’s functional approach, an “occupational group” (such as employees performing case management) can potentially include parts of multiple classifications (such as RNs and social workers), in which case keeping an occupational group together can lead to splitting a title or classification. (pp. 21-22.)

Where PERB orders a unit modification or other unit determination that requires an employer to split a classification, PERB normally leaves to collective bargaining any retitling that one or both parties may believe is wise. (See, e.g., Regents of the University of California (2010) PERB Decision No. 2107-H, p. 3, fn.3, & pp. 29-30 [splitting Administrative Nurse classification without retitling]; see also Alum Rock Union Elementary School District (1983) PERB Decision No. 322, pp. 13-15 [retitling is a mandatory bargaining topic].) The impacted employees’ ultimate title is a mandatory subject of bargaining. Nonetheless, PERB retitled the accreted positions as “Math Fellows,” as a default title pending bargaining. (pp. 35-36.)

A unit modification petition must satisfy the community of interest analysis, and PERB must only identify an appropriate unit, not the most appropriate unit. (Regents of University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159, 182.) (pp. 8, 19-20.)

UAW filed a unit modification petition seeking to add approximately 100 Math Fellows to the PX unit of about 6,700 Postdoctoral Scholars and Fellows (“Postdocs”) it exclusively represents. The Board affirmed the decision of PERB’s Office of the General Counsel to join UC-AFT, the exclusive representative of the IX unit, a second unit of UC employees primarily involved in teaching, as a party to the case pursuant to PERB Regulation 32164. Given that adding the Math Fellows would increase the IX unit by less than 10 percent, UC-AFT did not need to present proof of support before seeking to add the Math Fellows to that unit. (PERB Reg. 32781(e).) UC-AFT thus had a strong interest in ensuring that PERB, in processing UAW’s representation petition, did not mistakenly assign positions to the PX bargaining unit without UC-AFT’s participation in the case. Such an interest satisfies the standard set forth in Regulation 32164. (p. 16.)

A unit modification petition must satisfy the community of interest analysis, and PERB must only identify an appropriate unit, not the most appropriate unit. (Regents of University of California v. Public Employment Relations Bd. (2020) 51 Cal.App.5th 159, 182.) However, in case where competing union proposed unit configurations that would be appropriate for Math Fellows, PERB balanced the criteria in HEERA section 3579 to determine which proposal is most appropriate. The Board did not remand for an evidentiary hearing because there were sufficient undisputed facts that the remaining disputed facts would not be dispositive. (See, e.g., Los Angeles County Metropolitan Transportation Authority (2024) PERB Decision No. 2916a-T, pp. 6-7 [discussing how a Board agent should decide whether an evidentiary hearing is necessary].) (pp. 8, 19-20.)

PERB decisions interpreting both HEERA and other PERB-administered statues have repeatedly sought to avoid fragmentation of employee groups and unnecessary proliferation of units. (Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) Thus, unit determinations normally favor larger units even though such units may include a broad array of diverse employees. (County of Monterey (2022) PERB Decision No. 2821-M, p. 11 (Monterey); County of Santa Clara (2019) PERB Decision No. 2670-M, p. 27 (Santa Clara); Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 23-24 & 28-29.) These principles tend to promote employer and union efficiency, while increasing the likelihood that employees have sufficient bargaining strength. Another purpose is ensuring that small and/or newly created classifications retain the realistic possibility of representation. (Santa Clara, supra, PERB Decision No. 2670-M, p. 27.) This is especially true in an accretion or other unit modification context. (Monterey, supra, PERB Decision No. 2821-M, p. 11; Santa Clara, supra, p. 19 [noting that “public sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) (pp. 20-21.)

Because effective representation is one central purpose of a unit determination, 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. (Monterey, supra, PERB Decision No. 2821-M, p. 12, fn. 9; Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 30, fn. 29 & p. 31, fn. 31; Santa Clara, supra, PERB Decision No. 2670-M, p. 31.) (p. 21, fn. 10.)

In determining which of two competing unit configurations was most appropriate under HEERA, the Board (1) must consider the impact of dividing a classification (Govt. Code, § 3579(a)(2)); and (2) must apply a rebuttable presumption against dividing occupational groups (§ 3579(c)). While HEERA does not define the phrase “occupational group” found in section 3579(c), PERB does not interpret it to mean the same thing as “classification,” since that would render superfluous part of section 3579(a)(2). Analogous logic dictates that there is no presumption against splitting a classification; rather, HEERA merely instructs PERB to consider the impacts of splitting a classification. (§ 3579(a)(2).) The presumption against splitting occupational groups fits best with the other unit determination criteria in section 3579 (including the community of interest factors found in section 3579(a)(1)) when PERB applies the presumption functionally rather than mechanistically. Under PERB’s functional approach, an “occupational group” (such as employees performing case management) can potentially include parts of multiple classifications (such as RNs and social workers), in which case keeping an occupational group together can lead to splitting a title or classification. (pp. 21-22.)

It is problematic for an employer to deny a representation petition on unit appropriateness grounds without noting at least one appropriate unit placement for the employees in question. (p. 23.)

While employees have the right to express their individual preferences and thereby collectively decide which union (if any) they want to represent their unit through petitions for recognition, certification, decertification, and/or severance, they do not normally have the “right to choose the bargaining unit in which their classification or position is placed.” (Regents v. PERB (2020) 51 Cal.App.5th 159, 190; Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 23-24.) Thus, in accretion cases where the unrepresented employees total less than 10 percent of the unit to which they would be added, a petitioner normally need not demonstrate that it has the employees’ support. (Regents v. PERB, supra, 51 Cal.App.5th 159, at pp. 190-192.) In such cases, California public sector labor laws favor stable and harmonious labor relations over affording employees a right to choose their unit placement. (Id. at p. 192.) However, a partially countervailing legal principle nonetheless applies in limited circumstances: if a substantial number of employees in a group have decided to join the same employee organization, such mass membership constitutes a relevant community of interest factor under HEERA section 3579(a)(1) and comparable parts of selected other labor relations acts. (Govt. Code, §§ 3545(a), 99565(a)(1); St. HOPE Public Schools (2018) PERB Order No. Ad-472-H, p. 9.) (p. 34.)

Where PERB orders a unit modification or other unit determination that requires an employer to split a classification, PERB normally leaves to collective bargaining any retitling that one or both parties may believe is wise. (See, e.g., Regents of the University of California (2010) PERB Decision No. 2107-H, p. 3, fn.3, & pp. 29-30 [splitting Administrative Nurse classification without retitling]; see also Alum Rock Union Elementary School District (1983) PERB Decision No. 322, pp. 13-15 [retitling is a mandatory bargaining topic].) The impacted employees’ ultimate title is a mandatory subject of bargaining. Nonetheless, PERB retitled the accreted positions as “Math Fellows,” as a default title pending bargaining. (pp. 35-36.)